Volume 15 — Illinois Appellate Court Reports

Richard Peendeegast, Judge, presiding. This was an action of replevin to recover possession of ahorse, gig and harness, brought by William W. Charles against Ernest Neigelsen, before a justice of the peace, and afterward taken by appeal to the county court. A trial was had in the county court, before the court without a jury, upon an agreed state of facts, resulting in a finding and judgment' for the defendant.

<p>1. Partnership name—Fictitious patee.—The name or style of a partnership is wholly conventional, and in the absence of a restrictive statute, a firm may adopt-any name it sees fit. Where a note is made payable to order, and the name used is employed as the style or designation of an actual person, firm or company, the payee is not fictitious.</p> <p>2. Assuming oorp)RAVE nam5.—The mere assumption of a name appropriate for a corporation would be no violation of section 220 of the Criminal Code, nor would the putting forth of a sign or advertisement in which a corporate name is assumed, if not done for the purpose of soliciting business, constitute such violation.</p>

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

Sidney Smith, Judge, presiding. This action was brought in the court below, by Hays against Mather, to recover damages for an alleged libel.

Kiric Hawes, Judge, presiding. This was replevin in the cepit, brought by Oberne and Ho sick against O. L. Mann (then sheriff), and Eppstein and Marks for 160 sides of leather.

Elliott Anthony, Judge, presiding. This action was by appellee, Stube, against the appellant corporation, to recover for a personal injury to appellee, occasioned, as he alleges, by his being struck by a locomotive of appellant, while crossing the track of the latter at a street crossing in' the city of Chicago, by reason of negligence on the part of appellant’s agents and servants.

John G. Rogers, Judge, presiding. This was an action for forcible detainer by appellee against appellant.

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

Sidney Smith, J udge, presiding. This was assumpsit upon a special case, set out in the declaration, and brought by Louisa S. Glade, as the executrix of the will of her husband, Herman O. Glade, deceased, against Kasper G. Schmidt, who had been in partnership with said Glade in the business of manufacturing and selling lager beer at Chicago, for several years prior, and up to. the time of the death of Glade, to recover the sum of $1,881.93, which was owing by said firm of…

<p>1. Evidence—Fraud.—Another act of fraud is admissible to prove the fraud charged, only where there is evidence that the two are parts of one scheme or plan of fraud committed in pursuance of a common purpose.</p> <p>2. Evidence—Notice.—The court is of opinion that the evidence in this case does not disclose circumstances from which notice to appellant of the fraudulent representations of his vendor could he inferred.</p> <p>'ó. Sale—Rescission.—Where one purchases goods upon false representations as to his financial ability, and the vendor, in reliance upon such representations, makes a sale, such a sale is voidable at the option of the vendor. The election to rescind or not rescind being once made is final and conclusive.</p> <p>4. Rescission op contract—Opper to return consideration.— Where parties were attempting to rescind a contract of sale and sue in replevin, and a portion of the property replevied was merchandise for which a certain note was given, and such note was not tendered before or during the trial. Held, that as to that sale, the attempted rescission was ineffectual, and plaintiff was entitled to damages for the value of that portion replevied. Qucere, whether an offer at the trial to return the note would be sufficient.</p> <p>5. Election to appirm by bringing attachment suit.—Where a party being fully aware of the fraud for which he subsequently attempted to rescind a sale, brought an attachment suh, before any of the notes given ior the goods were due. Held, that this was an irrevocable election to treat the transaction as a sale, and such party could not afterward rescind the sale and recover the goods sold. He can not recede from such election, because after the institution of the attachment suit, he discovers where a portion of the property has been resold and can be reached.</p> <p>6. Error—Abstract.—It is not the practice to cinsider errors which are assigned by a party upon matters which he does not see fit to include in his abstract.</p>

Sidney Smith, Judge, presiding. On the 17th day of January, 1882, Henry B. Lockxvood, a merchant of Chicago, failed in business. On the same day he executed two judgment notes, due on demand, one for $54,579.90, payable to the order of Carter, Hawley & Co., and the other for $36,569.76, payable to the order of Carter and Hawley, two of the members of that firm.

<p>1. Practice.—Where the original answer of a garnishee was held insufficient, and bis additional answer was stricken out for non-compliance with the terms upon which leave to file it was granted, the proper practice was to render final judgment against him by default for want of an answer, for the amount of the judgment against the principal debtor, and costs.</p> <p>2. Jurisdiction.—During the discussion of a motion to strike out the additional answer of a garnishee, it was admitted by plaintiff's counsel that at that time the garnishee was a resident of New Jersey, doing business in New York, and thereupon counsel for the garnishee moved to dismiss as to the garnishee, for want of jurisdiction. Held, that such motion was properly overruled.</p>

<p>1. Indorsement—Indorser’s liability—Notice.—The contract of indorsement is regarded as entering as a condition in the contract of the drawer or indorser of a bill, or of the indorser of anote, that he shall only be bound in the event that acceptance or payment has been duly demanded, and he be notified if it is not paid. As no notice was sent through the post office, directed to appellant, in compliance with the statutes of Michigan, he can not be bound.</p> <p>2. Presumption as to place oe indorsement.—An indorsed note, made in one State, in the absence of proof to the contrary, will be presumed to have been indorsed in that State.</p>

Elliott Anthony, Judge, presiding. ' This was an action by appellee, as administrator of the estate of William Elson, deceased, under the statute, to recover damages of appellant for negligently causing the death of appellee’s intestate. The negligence charged in the several counts of the declaration is: (1) The general duty to have a flagman at the street crossing, and the breach of that duty. (2) Failure to perform the statutory duty of ringing a bell or sounding a whistle.

Kike Hawes, Judge, presiding. This action was brought by the administrator of the estate of Thomas Kelly, deceased, to recover damages to the widow and next of kin of deceased, consequent upon the death of the intestate, which was caused, as it is alleged, by the negligence of one of the employes of defendant.

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

Henry M. Shepard, Judge, presiding. This was a suit in chancery, brought by Josephine C. Smith against the Western Indiana Coal Company, Oliver H. Parsons and Caleb H. Booth. Held: and that said Booth pay the costs of the suit. From this decree said Booth has appealed to this court.

<p>1. Motions to instruct to find fob defendant.—Motions to exclude the evidence and motions to instruct the jury to find for the defendant are in the nature of demurrers to the evidence, and hence admit not only all that the evidence proves but all that it tends to prove.</p> <p>. 2. When ant evidence to prove plaintiff’s case.—Where there is any evidence tending to prove the plaintiff’s cause of action, and upon which the jury could reasonably find in favor of the plaintiff, it is the duty of the court to leave it to the jury to determine its weight and effect.</p>

<p>1. Common gabbier—Ticket evidence oe right to travel—Between the cqncluctor and a passenger, as to the right of the latter to travel, the ticket purchased must be conclusive evidence, and the passenger must produce it when called upon, as evidence of his right to the seat he claims,</p> <p>2. Same.—Where appellee's husband bought -a non-transferable 1,000 mile ticket and told the agent to issue it to “ E. Bannerman,” and the agent thinking it was intended for a man, inserted “ Mr.” before the name, and the ticket was presented by the husband to pay his wife's fare, he stating at the time to the conductor that it was bought for his wile, Elsa Bannerman, and the conductor refused to receive such ticket in payment of the wife’s fare, and upon a refusal to pay her fare, put her off at the next station, using no unnecessary force, Held, that appellee could not recover damages from the railroad company for such expulsion.</p>

<p>Evidence —Where the subject-matter of inquiry was as to the time when a pen and ink line was drawn through the printed words “if not paid at maturity” in a certain note, and two witnesses were allowed to give their opinion as to the time the line had been drawn, and the ground for permitting them to testify as experts was that they had been in the banking business fifteen years, had handled commercial notes, and had investigated the handwriting of different parties. Held, that their evidence was inadmissible. It was not a question for expert testimony.</p>

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

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

<p>1. Negligence.—Before a person can recover on account of the neglect of a statutory duty, it must appear not only that the injury complained of was the result of such neglect, but it must also appear that the injured party was in the exercise of due care. If the negligence of the injured party contributed to the injury, before he can recover, it must appear that his negligence was “slight,” and that of the defendant “ gross.”</p> <p>2. Same.—If A is chargeable by a statute with negligence in constructing a pumping apparatus in a certain manner, and B, with a knowledge of the facts, undertakes to operate the same under a contract with A, B is chargeable by the same statute with negligence in operating the same and the doctrine of comparative negligence does not apply.</p> <p>3. Master and servant.—Where a servant, at the time of entering the service of a master, has full knowledge of all the perils of the particular service, he assumes the risk and must bear the consequences.</p>

<p>1. Municipal corporations—Estoppel.—A municipality may be estopped by the acts of its officers, and a settlement of an existing controversy, if made in good faith, binds the corporation.</p> <p>2. Settlement of judgment by city council.—Appellant presented a petition to the city council setting forth mitigating circumstances, and asking that a judgment for $200 rendered against him for violation of municipal ordinances be satisfied upon the payment of $100. By a majority vote, the council determined to accept such proposition. Appellant then desisted from taking an appeal. After the time for an appeal had expired, the city attorney ordered out an execution, and placed it in the hands of a constable, with instructions to collect the whole of the judgment. Appellant then paid the $100 to the mayor, who turned it into the city treasury, and brought a bill in chancery to enjoin the collection of the balance of the judgment. Held, that a perpetual injunction to restrain such collection should be granted.</p>

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

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

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

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

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

<p>Appeal fyom the Circuit Court of Mason county; the Hon. Lyman Laoey, Judge, presiding.</p>

<p>1. Benefit certificate—Burden of proof.—Where a benefit certifi■cate is made payable to a certain person, in its inception, the burden of proof is upon parties claiming an assignment of such certificate to them, to show a prima facie valid transfer of the benefit accruing from s dd certificate to themselves in pursuance of the constitution and by-laws of the order.</p> <p>2. Recoud.—As neither the certificate, the assignment nor the by-laws prescribing the form in which the assignment shall be made, nor the constitution of the order applicable thereto, although the same were given in evidence in the court below, have been copied into the record, this court must presume in. favor of the finding of the court below.</p>

<p>1. Failure to return execution—Breach op bond.—Unless the delay is occasioned by some act of the plaintiff in the execution, a failure to return it within the time fixed by law is a breach of official duty of the sheriff, for which an action will lie against his bondsmen. (4 Bradwell, 346.)</p> <p>2. Duty to levy and sell—Property subject to mortgage.— Where the defendant in the execution gave the deputy leave to levy upon certain property, and the deputy indorsed the levy but took no steps to take possession, and it was claimed that the property was subject to a chattel mortgage. Held, that so far as the record shows, it might have been seized and sold subject to the mortgage.</p>

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

<p>Appeal from the Circuit Court of Pike county; the Hon. S. P. Shops, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jersey county; the Hon. G. W. Herdman, Judge, presiding.</p>

<p>1. Dram shop act—Damages.—In actions commenced "under the Divim Shop Act, exemplary damages are only properly given in cases where aggravating circumstances are shown, and are not awarded as punishment or as compensation over and above actual damages sustained, but operate as an example or a warning to deter the party or others from similar transactions.</p>

<p>1. Alteration of note in material part.'—The fraudulent alteration of a note in a material part’ thereof, by the payee or holder, not only destroys the instrument, but it also extinguishes the debt for which it was given, and no recovery can be had upon either. But if the alteration, though material, be made without any fraudulent purpose, it is to be regarded as a mere spoliation of the instrument, and the holder may surrender it up and resort to the original indebtedness. The effect of the alteration depends upon its nature, the person by whom and the intention with which it was made.</p> <p>2. Evidence of fraudulent intention.—The law presumes that every sane man contemplates and intends the natural and probable consequences of his own acts, and when a note is knowingly and deliberately altered by the payee or holder so as to increase the liability of the maker, not only without his consent, but after such consent had been asked and refused, the natural tendency of the act would be to defraud the maker, and the only reasonable inference that can be drawn from such acts is that fraud was intended.</p>

<p>1. WheBE ACCOUNTS ABE COMPLICATED, EEFEBENCE TO MASTEB.— Where, as in this case, the accounts consist of many items covering a great length of time, it is error in the court to proceed to a final hearing until an account has been stated by the master, and exceptions thereto, if any, have been heard and settled by him.</p> <p>2. Tenants in common.—As between co-tenants, where there is no disseizin, it is error to charge a co-tenant not only with what he received or realized, but for what he could have realized by prudent management of .the property.</p> <p>3. Co-tenants, when liable eor rent.—To render one tenant in common liable to anoiher for rent, or for use and occupation, there must be something more than an occupancy of the estate by one, and forbearance to occupy by the other.</p> <p>4. Co-tenants—Occupation and cultivation op vacant and unoccupied lands.—Where one tenant in common enters upon vacant and unoccupied lands, and by his own labor and money reduces the same to cultivation, and without renting or ever having received rent therefor, occupies and cultivates the same without objection, if liable at all, it is only for a share of the actual profits made from the use of the premises after deducting taxes paid, the costs of improvements, and all other expenses.</p>

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

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

<p>1. Declarations op agent.—The declarations of an agent of a company, whether i> corpovated or not, are only admissible in evidence against the company when they foim part of the res gestae of some business transacted \ y him for his principal within the scope of his authority.</p> <p>2. Declarations.—Where it was claimed that the evidence failed to show that appellant was incorporated,as it appeared that the two parties whose declarations were received, were interested in the company as stockholders, that their evidence was against their interest, and therefore proferly ad" mitted. Held, that if admitted on that ground, the declarations should have been received only as evidence against the parties making them, and not permitted to affect the rights of the other parties in interest.</p> <p>3. Damnum absque injuria.—Where the death of a party is the result of a purely accidental occurrence, without the fault of those causing it, no action will lie, for though there is damage, the thing amiss, the injuria, is wanting.</p> <p>4. Master and servant.—Where a party voluntarily enters service and continues therein, with full knowledge of its dangerous character, he assumes all the risks incident to the service in which he is engaged.</p> <p>5. Fellow servants.—Where the parties causing the death of deceased were in the service of a common master, both actually co-operating at the time of the injury in the same thing—putting a pipe in a shaft, the deceased in the shaft, the others at the top, all in the presence and hearing of each other, their relations being such that they could have exercised an influence, one upon the other, promotive of proper caution in respect of their mutual safety, they were fellow servants within the rule which exempts the master for liability for an injury inflicted upon one by the carelessness of the other.</p> <p>6. Same.—Where at the time of the accident D. and deceased! with other employes, were performing the labor of common servants, neither exercising any authority over the other, but being co-servants as to the labor then being performed, the mere fact that D. may have had the power to employ and discharge other servants and to superintend them when at work, would not change his character from that of a co-servant to that of a repre - sentative of the company.</p>

<p>1. Action on penal bond—Assignment op breaches.—Under oar statute a plaintiff in an action on a penal bond is at liberty to assign in h s declaration in the original suit as many breaches as he miy think fit, and he may also assign from time to time such further breaches as occasion may require; and When assigned subsequently to the rendition of the original judgment the proceeding does not become a distinct action, but is regarded as a part of the original suit. The assessment of damages, however, must not exceed in the aggregate the amount of the judgment for the penalty of the bond.</p> <p>2. Demurrer.—Where, in the trial of the original cause under the stipulation of the parties, the plaintiff was entitled to recover damages for so many breaches of the conditions of the bond as he should prove, and breaches not litigated on that trial could be subsequently assigned and recovered for, and he afterward assigned an additional breach of the condition of the bond and to the defense of the previous judgment as a bar filed a replication that the damages demanded were not the same, etc. Held, that it was error for the court to sustain a demurrer to such replication. -</p>

<p>1. Public highway—Presumption prom twenty years user.— The presumption arising from twenty years user of a way is not conclusive, but it may be rebutted by showing facts to overcome such presumption. (Kyle v. Town of Logan, 87 Ill. 64.)</p> <p>2. Where user por less than twenty years.—Where the user has been for a shorter period than twenty years, a dedication of the land to public use may be shown by such acts or conduct on the part of the owner as indicate an intent on his part to dedicate the same, and an acceptance thereby by the public.</p> <p>8. Lands lying in common and uninct.osed —In the case of lands lying uninclosed and in common, until circumstances induce owners to inclose, no strength of inference or conclusions can be deduced from mere travel across it by the public, without objection from the owner,</p> <p>t 4. Instruction.—An instruction that “if the public continuously use a road as a public highway for more than twenty years without interruption, interference or objection on the part of the owner of the land on which such road is located, the presumption of law is that the owner of the land has dedicated such road to the public use,” Meld, to be erroneous, in that it does hot except nninclosed and unimproved lands lying in common from the operation of the general rule.</p> <p>5. OlBCIUMSTANCES WEAKENING PRESUMPTION OP DEDICATION.—Where the lands east and west of appellant's house were vacant and unoccupied, and appellant had for many years kept the road fenced without any objection on the part of the public, and the people of the vicinity, including two of the defendants, petitioned for the new road, and the other defendants acted upon said petition and allowed appellant damages for taking his land, and upon appeal to supervisors, the action of the commissioners in laying out the road was approved. Reid, that the presumption of a dedication from twenty years public user is greatly weakened.</p>

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

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

<p>1. Slander—General' reputation of plaintiff.—In an action on the ease for slander, the words charged imputing the crime of larceny, it is not error to permit the defendant to prove the general reputation of the plaintiff.</p> <p>2. Malice.—While the law implies malice from the use of words actionable per se, yet this implication may be explained and rebutted by circumstances. The words may be shown to have been used with reference to a known act and to have been so understood by those present, and that such act was not in point of law a felony. It is proper to submit the intent of the publication to the jury.</p> <p>3. Instructions.—An instruction that “if the jury believe from the evidence that the plaintiff was at the time the language is a'leged to have been used, taking the property of the defendant with the intent of converting it to his own use. then they will find for the defendant.” Held, clearly erroneous. The defense of justification could be made only by establishing every element necessary to constitute the crime of larceny.</p> <p>4. Mental suffering—Damages.—It was error for the court to refuse the instruction that if the defendant had charged the plaintiff as alleged, the mental suffering thereby occasioned to plaintiff, if any such had been proved, was a proper element to be considered in fixing the damages.</p> <p>5. Bill of exceptions.—Remarks of court or counsel on the trial of a cause, which are complained of as error, must be embodied in the bill of exceptions or they will not be noticed.</p>

<p>Appeal from the Circuit Court of Effingham county; the Hon. Wm. 0. Jones, Judge, presiding.</p>

Amos Watts, Judge, presiding. The plaintiffs in error filed their bill in chancery against defendants in error, alleging: That on the 28th of August, 1877, Simeon Ryder, of Madison county, died, leaving his wife, Anna E. Ryder, the mother of said Simeon W. Ryder, and his children, the said Simeon W. and the said Selina Bowman, who is a daughter by a former marriage; that said Simeon W. is a person of unsound mind, and has no legal conservator to represent him or bring suits…

George L. Riess, Jndge, presiding. This was an action of trover by the appellee against appellant, for a stock of drugs, medicines, etc., and for certain household and kitchen furniture, canned fruit, pickles, preserves, etc. The case was tried by jury, resulting in a verdict for plaintiff for $251, of which plaintiff remitted $150; and a motion for a new trial having been overruled, judgment was rendered against the defendant for $101 and costs.

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

Sylvester F. Gilmore, Judge, presiding. 1. A writ of attachment from the County Court of Effing-ham county, Illinois, at the suit of William P. Surrelis against Francis A. Yon Gassy, dated April 22, 1884, and served April 23, 1884, on Caspar Holte, garnishee. 2. Interrogatories to garnishee. 3.

<p>Practice.—Where by mistake in an amended declaration the ad damnum was laid out at a less sum than the amount claimed in the affidavit to hold to bail, the process of capias issued therein, and the original declaration, and by consent there was a trial by the court below and judgment was given for the plaintiffs for the sum claimed in the affidavit to hold to bail, and no exception was then or at any time interposed by the defendants. Held, that under the liberal and enlightened practice now prevailing the judgment should not be reversed for this cause. The rpotion in this court to amend will be granted.</p>

<p>Appeal from the County Court of Randolph county; the Hon. George L. Riess, Judge, presiding.</p>

<p>FOECIBLE ENTRY AND DETAINER ACT.-An action can be brought under the sixth clauce of the second section of the Forcible Entry and Detainer Act, only against a "party to such judgment or decree." As no privity of estate is shown to exist between appellees and the judgment debtor, and even if that were or could be assumed, as it clods not appear that their possession is in subordination to the title or right of possession of appellant, the judgment is affirmed.</p>

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

<p>1. ALIMONY PENDENTE LITE—PETITION AND NOTICE.—While it ÍS the better practice in case of a decree for alimony pendente lite that a separate petition containing averments of the necessary and particular facts should be filed and notice of the motion for temporary alimony he given the opposite party, the statute does not require such petition and notice, and error assigned therefor can not be sustained.</p> <p>2. Question within discretion of court.—Ad interim alimony and money for the payment of solicitor’s fees and other expenses of the court is given, not as a strict right to the wife, but it rests largely in the sound discretion of the court; and when that discretion is exercised fairly and without abuse by the trial court after hearing testimony, it will not ordinarily be interfered with on appeal.</p> <p>3. What necessary to prove. —Before' alimony pendente lite can be awarded, the alleged marriage and the ability of the husband to pay such 'imn as may be decreed must be admitted or proved; and the decree in such cas?, so far as that question is considered, is final, and is tobe treated as a final decree as in any other case in chancery; since there is no evidence in the record of the ability of the husband to pay the alimony awarded in this case the cause must be reversed.</p> <p>4. Decrees for alimony, how enforced.—Decrees for alimony may be enforced by execution, as other decrees, or in any other mode consistent with the practice in chancery. A court may enforce decrees for the payment of alimony, by sequestration of real or personal estate, by attachment against the person, by fine or imprisonment or both, this power subject, however, to the limitation imposed by the constitution.</p>

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

<p>1. Fraudulent conveyance.—The court is of opinion that the circumstances in this case clearly show that the conveyance by the debtor was made with the intent and design to defraud his creditors, and that the purchaser had notice of such fraud.</p> <p>2. Purchaser with notice.—When a debtor' has conveyed to a purchaser for value, with the intent and design to defraud his creditors, it is not necessary that the purchaser should have purchased with the intention of aiding the vendor in his fraudulent design, in order to enable the creditor of the vendor to have th > conveyance set aside as fraudulent. If the purchaser accepts the conveyance with notice of the fraudulent intent on the part of the grantor, the property so purchased may be subjected to the payment of the debts of the fraudulent vendor.</p> <p>3. Notice, huw established.—Notice to the purchaser may be established by proving direct and positive knowledge on his part, or the notice may be inferred from the existence of certain facts and circumstances, that would place a man of ordinary prudence on inquiry with reference to the conduct of the vendor.</p> <p>4. Sale hindering and delaying creditors.—A sale of a debtor’s property upon a long and unusual credit has a tendency to hinder and delay creditors by interposing a legal title between them and the debtor and consequently is a badge of fraud.</p> <p>5. Fraud, how proved.—While it is true that fraud can not be inferred, yet like all other facts it may be proved by circumstances. Circumstances when proved which convince the mind that the fraud charged has been perpetrated, is all that is necessary.</p>

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

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

<p>Personal liability of stockholder.—In a suit brought to enforce the personal liability of a stockholder under the charter of the People’s Bank of Belleville, where the stockholder set up as a defense that judgments had been recovered against him in favor of creditors of the bank to an amount equal to the amount of his liability as a stockholder, and the judgments had been discharged for a less sum than the amount due, the sum actually paid should be regarded.</p>

<p>1. Failure cot guardian to insure—Liability.—The failure of a guardian to insure, even when he had trust funds with which he might effect the insurance, would not, under all circumstances, render him personally liable for subsequent loss by fire. But it would depend upon the inquiry whether or not, upon the circumstances of the particular case, he was guilty of culpable or gross negligence.</p> <p>2. Same.—Where, at the time of the assumption of the guardianship, the house in question, which was a frame one in the outskirts of the village, detached from any other, and was occupied by tenants at a small rental, was not insured, and the guardian insured it for three years, and although he had trust funds in his hands, did not renew the policy at the expiration of the three years, and six months later the house burned. Held, that the proofs in this case do not disclose such gross negligence as to charge the guardian personally for the loss of the house.</p>

<p>Assumpsit eor 'money had and received .—If a daughter of á deceased soldier malíes an application for a pension, stating that she is the only child, and the pension is paid to her until she is sixteen, and such statement is false, deceased having a younger son, the latter can not maintain against the former an action of assumpsit for money had and received, there being no privity between them. Such action can be maintained only by the government.</p>

<p>1. Coroner’s inquest—Juror’s fees.—A jury was summoned by the coroner to hold an inquest over twenty-six bodies burned in a convent. The jury was not sworn as to each dead body, but was sworn three times, on the theory that there were three classes, the identified burned bodies, the unidentified burned bodies, and the bodies of two persons killed by jumping from a window. The jury returned twenty-seven verdicts—a general verdict as to the immediate cause of the catastrophe, and a separate verdict as to each of its victims. The inquest lasted six days. Held, that the compensation of each juror should be six dollars.</p> <p>2. Construction of statute.—The salient and controlling words in the forty-fifth section of the Fees and Salaries Act, “the fee of each juror attending an inquest held over a dead body shall be $1 per day,” are “ an inquest,” and the true intent and meaning is, that each juror attending an inquest shall be paid a, per diem of $1, regardless of the fact whether that particular inquest or inquiry is upon the body of one or many. The words “held over a dead body,” are merely explanatory and for the purpose of indicating the kind of inquest covered by the statute.</p>

<p>Appeal from the Circuit Court of Edwards county; the Hon. C. S. Cong or, Judge, presiding.</p>

<p>Error to the Comity Court of Pope county; the Hon.Wn. Y. Eldridg-e, Judge, presiding.</p>

<p>1. Execution—Joint defendants.—In this State, hy statute, the entire amount of a judgment may be made out of the lands and tenements of one of the defendants joined with others in the same execution and issued on a judgment against all. The judg-ment is virtually joint and several ag-ainst all and ea,uh of the defendants as to all classes of property.</p> <p>2. Execution against bead estate of survivob.—An execution issued and levied upon the real estate of a surviving defendant without reviving the judgment against the deceased defendant’s heirs and executors is valid.</p> <p>3. As TO names in . execution.—The fact that the execution contained the name of the deceased defendant (the execution and fee hill being issued more than two years since his death without reviving the judgment against his heirs and executors) would not render it void as to the survivor. In order that the execution may conform to the judgment it issues against all the defendants, although for all practical purposes, it amounts to no more than an execution against the survivors.</p>

<p>Instructions.—Where certain instructions given assumed that an alleged settlement was not made, which was the question at issue and upon which the evidence was conflicting. Held, that the fact that other instructions were given stating that if the settlement had been made, then, etc., did not cure the error.</p>

Charles Kelltjm, Judge, presiding. Tills was an action of assumpsit commenced by appellee against appellant in the circuit court in April, 1883, to recover for the care, nurture and maintenance of the bastard child of the appellee which she claimed was begotten by the appellant, out of wedlock, and while she was an unmarried woman.

Feanklin Blades, Judge, presiding. The appellants contracted with appellee, September 19, 1884, to construct a dwelling house on his farm, about six miles east of the town of Minonlc. The appellee was to do all the excavating necessary for the laying of all the walls, including cellar, cistern walls and piers, and deliver all materials necessary for the construction of the building on the ground ready and handy for the workmen.

<p>Appeal from the Circuit Court of Jo Daviess county; the , Hon. John V. Eustace, Judge, presiding.</p>

<p>Appeal from the County Court of Will county; the Hon. Charles B. Garnsey, Judge, presiding.</p>

<p>Police regulation op village—Prohibiting trade on Sunday.— Under paragraph 66, Article 3, Section 1, of the act in relation to cities villages and towns, which provides that the board may pass ordinances to regulate the police of the city or village, and pass and enforce all necessary ordinances, a village ordinance was passed prohibiting the ke- ping open in said village, places of business for the purpose of vending goods, wares and merchandise on Sunday, with certain exceptions named. Held, that the regulation of labor, trade'and traffic on Sunday is a part of tLe legitimate powers of a city or village, within the meaning of the act, and that the ordinance in question is valid.</p>

John Burns, Judge, presiding. The bill shows that there was óf record in the town clerk’s office of the town of Whitfield, an order made by the commissioners of highways of said town on the 9th day of March, 1866, laying out the road in controversy; a plat of the road is made an exhibit.

John J. Glenn, Judge, presiding. This is a bill for injunction for the purpose of restraining the appellants from digging, excavating and establishing any ditch, drain or waterway by means of which the water could be discharged from sections 2 and 3, and the north part of 10 and 11 down upon the lands of the appellee.

<p>Appeal from the Circuit Court of La Salle county; the Hon. G-. T. Gilbert, Judge, presiding.</p>

<p>1. Delivery of note.—If a son gives a note to his father upon certain conditions, and in accordance therewith the event happens entitling the son to have the note given up to him, and the father delivers it to A to give to the former, and A puts it away among his papers, and never delivers it to the son, A should be treated as the trustee of the son, and bound by the terms of the trust, rather than agent of the father, and liable to have his authority revoked by him at any time before delivery of the note. As the instruction given assumed that A was the agent, and the above theory was not submitted to the jury by any instructions, the judgment is reversed.</p> <p>2. Evidence.—Where appellee, to prove that a note had never been given up by the father, who had since died, introduced witnesses who testified that deceased had told them in the absence of his son, appellant, that he would not give up the note, but appellant must pay it. Held, that the statements of deceased, out ol' the presence and hearing of appellant against him, were hearsay and not proper, while proper as against appellee.</p>

<p>Error to the Circuit Court of Bock Island; the Hon. A. A. Smith, Judge, presiding.</p>

<p>Error to the Circuit Court of Will county; the Hon. J. McRoberts, Judge, presiding.</p>

<p>Election of causes of action—Estoppel.—Where appellee, who had sold appellant some heifers, claimed that appellant had taken a Durham which he did not buy, had his election to treat the transaction as a valid sale or a wrongful conversion, and he elected to hold it a valid sale, and brought suit in assumpsit, and" appellant pleaded a tender of §175, and after the evidence was all in and the trial nearly closed plaintiff took the money tendered and dismissed the suit. Held, that appellant was estopped from bringing an action in trover for the conversion of the Durham.</p>

<p>1. Intere.t, when recoverable.—Where a demand is in good faith disputed or nothing has been done to hinder or delay proceedings for its collection, 1 here can be no recovery of interest upon it as for an unreasonable and vexatious delay of payment, although such demand be really due. A delay of' settlement :'s not necessarily a delay of payment.</p> <p>2. Evidence.—The court is of opinion that the allowance of an alleged payment of §300 was clearly against the evidence.</p>

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

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

<p>1. Where administrator has a claim—Appeal by administrator pro tem.—Where an adminisirator pro tem., having been appointed by the county court to appear and defend a ciaim filed against the estate by (he administrator (R. S. Ch. 3, § 78), took an appeal to the circuit court. Held, that the last sentence of section 78 of the statute does not by implication leave the estate, when defeated in the lower court, without remedy by appeal. Section 68 giving an appeal in all cases to either party, is not thus limited by section 78.</p> <p>2. Living in family—Suit for wages—Declarations.—Where appellee, who had lived for many years in the family of her uncle, was suing his estate for wages and money alleged to have been loaned, and the declarations relied on as a new promise to take the case out of the Statute of Limitations, did not amount to a recognition of a legal liability or indebtedness on any account, but were expressions of a desire from a sense of gratitude to reward the claimant, and related to her work alone and not to money loaned, and were not made to her or her agents legally or equitably interested in the claim. Held, that such declarations would be insufficient to revive an indebtedness, if any existed, barred by the statute.</p> <p>3. Interest.—Where there was no evidence of an agreement to pay interest, and the principal due, if any, was not fixed, certain or agreed upon, hut was upon a running and unsettled account, interest could not he recovered.</p>

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

<p>1. Damages on injunction bond.—Appellants filed a bill to enjoin the sheriff and judgment creditor from selling certain land under execution against one W., and executed to them a bond conditioned to “ prosecute such injunction suit to effect, and pay all costs and damages that may arise in said case or grow out of the same in any manner whatever.” The judgment creditor then assigned his judgment against W., and the assignee of the judgment was on his own petition made a co-defendant with the sheriff and original judgment creditor, hut no new bond was given. On final hearing the injunction was dissolved and hill dismissed, and the sheriff and original judgment creditor brought action upon the bond “for themselves and for the us.e of” the assignee of the judgment. Held, that the penalty of the bond was limited to the damages sustained by the obligees, and the assignee of the judgment not being named or referred to in said bond, no recovery could be had for any damages sustained by him. •</p> <p>2. Bond—Not Transferable —The bond being an obligation to pay contingent upon conditions personal to the obligees would not be transferable without Consent of the obligors, and did not run with the interest covered by it.</p> <p>3- Surety'—Liability strictly construed.—The liability of a surety is not to be extended by implication or construction beyond the terms of his contract.</p>

<p>Piiepondeeance op evidenoe.—Where the testimony of plaintiff as to the terms of a contract was expressly contradicted by the defendant, and the plaintiff was unsupported by any other witness, and the defendant was sustained by seven different witnesses, and the verdict of the jury was for the plaintiff. Held, that it was error for the court below to overrule a motion for a new trial.</p>

<p>The court is of opinion that the additional testimony offered on the new trial does not strengthen the case of appellees (11 Bradwell, 455), and that on the whole proof as made it fails to justify the decree of the court below.</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 Morgan county; the Hon. C. Eplee, Judge, presiding.</p>

<p>1. Probate jurisdiction—Executor’s account.—Appellant, as executor, filed his account in the county court, to the approval of which appellees filed objections in regard to certain sales of real estate. The only question before the court in reference to these sales was whether or not appellant, as executor, had committed a devastavit by selling the lands at an undervaluation when he might have sold them for more. Held, that a court of probate had jurisdiction to inquire into this question.</p> <p>2. Liability of executors.-—When executors have acted with reasonable diligence and an honest desire to do their duty faithfully, a mere error of judgment, in what was fairly matter of judgment or opinion, should not make them liable merely because subsequent events have shown they did not pursue the wisest course. Bat, on the other hand, they must be held to that degree of diligence which men ordinarily use in the management of their own affairs. The court is of opinion that the evidence in this record fails to show that appellant has failed to ex:reise that reasonable care, either in the sale of the land or in the matter of rentals.</p>

<p>1. Statement.—Appellee’s husband was employed by appellant, a firm engaged in the manufacture of illuminating gas, as a laborer, and was told by the foreman to ascend a ladder in the room in which the apparatus was situated, and remove some planks lying upon the iron girders nearly over the superheater; while there deceased became dizzy and fell, receiving injuries from which he died. Appellee brings suit against appellant, and the gravamen of the charge is that by reason of the defective condition and operation of the apparatus, poisonous gases escaped into that portion of the room where deceased was negligently directed by the foreman to go, and that his death was caused by inhaling these gases.</p> <p>2. Expert testimony.-—-Where physicians were called in as experts, who testified as to what would be the products of the combustion of hard coal in the generator and superheater, and as to the effect these gases would have upon the human system, and the symptoms following their inhalation; and the portions of the apparatus, the number and situation of ventilators, dimensions of the room, etc., having been fully described by other witnesses, hypothetical questions were propounded to these witnesses, the intention of which was to draw out their opinions as to what would have been the condition of the air in the upper part of the building, as to its being impregnated with gases, with the means of ventilation described. Held, that the testimony as to the formation of gases, etc., was proper; hut the answers to the hypothetical question were inadmissible. An expert must have experience as well as theory in the matter about which he is called to testify. Although these physicians were skilled in the laboratory and had, in their practice, studied generally the subject of ventilation, none of them had any experience in the use, construction or ventilation of such buildings as the one in question.</p> <p>3. Negligence.—If an employe, by his disobedience of the orders of the foreman, increased his risk, and thereby, contributed to his own injury, it would he a question for the jury to determine, under proper instructions, whether his negligence was slight, and that of the defendant gross in comparison therewith.</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 Macon county; the Hon. J. W. Wilkin, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Greene county; the Hon. G. W. Herdman, Judge, presiding.</p>

<p>1. Pleading.—Appellant pleaded the general issue and the Statute of Limitations to a declaration in assumpsit, containing the common counts, for goods sold by appellees to appellant and one F., who were declared against as partners. Held, that the fact of the part-nersh p could only be put in issue by a plea in abatement properly verified as directed by the statute.</p> <p>2. Practice—Exception to ruling.—Even if the court below erred in refusing appellant leave to file an additional plea, appellant can not complain of the same now, as he did not except to the ruling' at the time.</p>

<p>1. Statement.—A suit in equity, brought by appellee, to set aside a sale of land, made under an execution issued on a judgment obtained by appellant against appellee’s two sons, and to remove the cloud upon the title caused by such sale. On May 15, 1879, appellant recovered the judgment at law. About a month before this judgment became a lien on the land, the property in question was conveyed by the son to appellee for §2,400, but the scrivener made a mistake in the deed in describing the land, writing the east half instead of the we<t half, as intended by the parties. In August, 1881, the same scrivener attempted to correct the mistake by erasing the word “west” and inserting “east,” and the deed as thus attempted to be corrected was again filed for record. December 14,1882, the land was sold as the son’s property under an execution issued on the said judgment.</p> <p>2. Possession as notice.—Where at the time a son attempted to convey certain land to appellee, his mother, it was occupied by his brother, and a few days after she purchased the land appellee removed some bedding and a rocking chair into a bedroom occupied by her son, and took up some shrubbery and planted it on such land, but the son still occupied the house, and she did not take actual possession of the land and reside in the house until several months after appellant’s judgment against her son had become a lien on the land. Held, that putting the few things in one of the rooms of the house and transplanting the shrubbery was not such an open, visible, notorious and exclusive possession as was calculated to put appellant upon inquiry. But had it been shown that the son, who was in possession at the time of the sale by his brother, was appellee’s tenant, then his possession would have been her possession, and inquiry should have been made of him.</p>

<p>1. Taking a note foe a debt—Extending time of payment —Taking a note or acceptance for a pre-existing debt extends the time of payment of such debt until the maturity of the note or acceptance and suspends the remedy of the creditor until the maturity of the note or bill.</p> <p>2. Mechanic’s lien—Debt not due.—A petition for a mechanic’s Hen, filed by appellee October 26, 1882. Appellee had made repairs on A's mill and in settlement, July 1, 1882, accepted three drafts payable respectively in two, four and six months. In September, 1882, A conveyed the premises to appellant. These acceptances were not received by appellee in absolute payment. He deposited them in a bank and they were credited to him on his account and in his bank book. He indorsed them to the bank, but as they fell due and were not paid he took them up. On the trial appellee produced the three acceptances and proved that he had paid the money hack to the bank for them after he had filed his petition in this case. Held, that the claim of appellee was not due when he filed his petition for a mechanic’s lien, and it was error for the court to decree him a lien on the premises in controversy and for a sale of the same.</p>

<p>1. Practice—Variance.—Where the .case, as made by appellee in his petition for a mechanic’s lien against appellant and A, was simply one of a sale and delivery by him of lumber, etc., to A to be used by the latter in erecting a house, and the case made by the proof was a purchase of the lumber by appellee of B, and a delivery of the same to A, on the promise to pay B for the same. Held, that the case made out by the proof is so variant from the one stated in the hill, that the petition should be dismissed.</p> <p>2. Pleading—Mechanic's lien.—A party seeking to enforce a lien under the statute relating to mechanics’ liens must, by his pleadings, bring himself strictly within the terms of the law, and show his right to the lien as against those made defendants.</p> <p>8. Shit by surety eoii mechanic’s lien.—Where lumber was furnished by B to A, who had the equitable title to the land, on which he built a house with said lumber, and appellee was the surety or guarantor to B that he would see the lumber paid for, and did afterward pay such hill. Held, that for the lumber so paid by him as surety or guarantor, the statute gives him no right to a mechanic’s lien on the house or lots.</p> <p>4. Owner ob land giving bond bob a deed to purchaser—Lien. —Two lots were sold by M. to A, and a deed left as an escrow, to be delivered to A upon the payment of the note given for the purchase money. A built a house on the land, but did not pay for the lumber. A being unable to pay the note, by arrangement the deed left as an escrow was surrendered, and appellant paid to M. the amount due, and by order of A received from M. a deed of the lots, and appellant gave to A an instrument in writin >■, agreeing to re-convey to A upon payment, etc. Appellee, who was A’s sure'y for the payment of the lumber, files a petition for a mechanic’s lien against appellant and A. Held, that appellant occupies the position M. occupied when he conveyed the lots to him, and he can not now be required to part with his title until he receives full payment of the purchase money he paid for the lots.</p>

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

<p>Yendor and vendee—Fraudulent representations.—Tn order that a vendor may avoid a contract of sale on account of false and fraudulent representations as to commercial standing made by the vendee, it is necessary to prove not only that the representations made by the vendee were false, but that they were coupled with a dishonest intent. As the evidence in this case fails to show that the vendees induced the vendors to enter into the contract by fraud, the title to the goods passed by the sale, and the sheriff who had levied upon such goods, under a judgment and execution in favor of one of the vendees’ creditors, was entitled to the possession of the same.</p>

<p>G-atínishment—Res adjtjdicata.—A town recovered judgment against K., father of appellee, and a writ of garnishment was issued against appellant and his partner, who were bankers, and appellee, and served upon all except the partner, and interrogatories were filed by the town to which separate answers were filed, appellant denying that he had in his hands, or under his control, any moneys or properly belonging to K., hut admitting that they had in their hank $400 deposited by K. to the credit of appellee, to whom atone he claimed they were liable for the same; appellee, by his answer, denying all indebtedness to bis father, and claiming that he was the owner of the $400 in the bank. The trial resulted in a judgment against the banking firm, as garnishees, in favor of K.. for the use of the town, for $194.60, from which appellee appealed and the judgment was sustained. Appellee now brings suit against appellant and his partner to recover the amount of the deposit made with them. Held, that the adjudication in the garnishment suit is a bar to appellee’s right of recovery, to the extent of the judgment rendered; that it is not material in this suit whether the partner was served with process in the original suit or not.</p>

<p>1 Bill of discovert.—Where the answers of each and all of the defendants to a bill of discovery, authorized by § 49, Ch. 22, R. S. 1874, denied all the allegations of the bill and made no discovery, the right to proceed further under it was at an end.</p> <p>2. Equity jurisdiction—Removing fraudulent conveyances.— The power of courts of equity to remove fraudulent conveyances of a judgment debtor out of the way of an execution in favor of a judgment creditor can not he questioned. But the jurisdiction in such cases rests solely upon the grounds of fraud.</p> <p>3, Lien of judgment creditor does not extend to rents and profits.—Where at the time a bill in equity was filed by a judgment creditor, the judgment debtor owned only an equity of redemption in the house occupied by her tenant, the same having been previously sold on foreclosure of mortgage against her, and the argument used was that the judgment was a lien on the equity of redemption and therefore a court of equity should cause the rents to be paid to the judgment creditor. Held, that the lien in favor of a judgment creditor is given by statute and can not be extended beyond its terms; it is confined to the real estate and does not extend to .the rents and profits; that there was no occasion for the interference of a chancery court as the judgment creditor had a full and complete remedy at law by garnishment.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. W. R. Welch, Judge, presiding.</p>

John Gr. Borers, Judge, presiding. Tills suit was brought in the Circuit Court of Cook county by the plaintiff in error against the defendants in error, to recover damages for the loss of one of his hands while working at a planing mill in the defendants’ furniture manufactory.

<p>Dower—Jurisdiction.—As dower in land is an estate of freehold, the appellate court has no jurisdiction to hear and determine this appeal.</p>

<p>1. Replevin—Trover—Jury finding only as to part of matter put in issue.—Where plaintiff brought an action of replevin in justice’s court for certain goods described in the writ, under which a portion only of such goods was obtained, and on appeal to the circuit court defendant failed to appear, and the jury impaneled and sworn to try the issues returned the following verdict: “We, the jury, find the right of property obtained on the writ of replevin in the plaintiff, and assess her damages at §133.50 for detention of goods not obtained,” and the court rendered judgment that plaintiff retain possession of the property replevied, to be held irreplevisable, and recover of defendant §133.50 as damages. Held, that when the plaintiff below sought to recover for the goods which were not obtained, it was in trover, and the law raised the presumption of an issue being joined as upon a plea of not guilty to that count; that the verdict is fatally defective in finding only as to part of the matter put in issue.</p> <p>2. Practice—Defective verdict.—If a jury finds but part of the matter put in issue and says nothing as to the rest, the verdict is ill, and a venire facias de novo shall issue if no judgment is given; but if judgment is given upon such verdict it shall be reversed.</p>

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

<p>1. Instructions must be accurate.—Where the evidence as to controverted questions of fact is conflicting, instructions must be accurate.</p> <p>2. Instructions—Negligence.—An instruction that “if the jury believe from the evidence and the instructions in this case that the plaintiff hath sustained damages by reason of negligence and carelessness of the defendant, or his agents and servants, acting under his direction, in and about his business, and that the plaintiff used due care and caution on his part-, then the law is for the plaintiff, and the jury should so find." Held, erroneous in not limiting the negligence complained of to the conduct of the particular business out of which the alleged cause of action arose; in not embracing negligence as a part of its hypothesis in clear and unambiguous terms; in adding “ and instructions of the court."</p> <p>3. Gross negligence defined.—■'Where the court modified an instruction defining “gross negligence” as “ a wrongful act or omission willfully and maliciously done or omitted,” by inserting “ gross negligence is defined to be a wrongful act or omission on the part, etc." Held, that both definitions were erroneous. Gross negligence is the want of slight diligence.</p>

This was an action by Morse against Sweenie, to recover for the value of a horse which had been killed by being struck in the breast by the end of one of the shafts of a one-horse vehicle, which was, at the time, being driven by Sweenie.

William H. Barn dm, Judge, presiding. This was replevin brought by the defendants in error, Sorg and Hner, against the plaintiff in error, Hanchett, and Benjamin B. Fay and Lucius W. Conkey, to recover the possession of a quantity of tobacco sold by the defendants in error to Fay and Conkey upon credit, and which had been seized by Hanchett, as sheriff, under certain executions against Fay and Conkey.

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

George Gardner, Judge, presiding. William C. Yeaton, having made, May 29, 1877, his promissory note for $3,000, payable to his own order in three years from date, together with six coupon notes for $150 each, payable in 6,12,18, 24, 30 and 36 months, with interest at the rate of ten per cent, per annum after maturity, executed a deed of trust covering twenty acres of land lying in Cook county, Ill., to the appellant, Loeb, as trustee; such deed containing the usual power to…

Joseph E. Gary, Judge, presiding. This was an action of assumpsit brought by the Union Iron and Steel Company, a corporation located and having its principal place of business in Chicago, against William Watson, for money had and received. At the time of the transactions in question the plaintiff was engaged in manufacturing iron and steel from ore obtained in part from mines in the Lake Superior region.

Thomas A. Moran, Judge, presiding. This was a decree in chancery, for damages assessed in pursuance of the statute, upon the dissolution of an injunction.

Elliott Anthony, Judge, presiding. This was an action of trover, brought by Albert F. Chandler against Richard T. Race, to recover damages for the conversion of three promissory notes, one for $1,410, dated May 19, 1876, and the other two for $200 each, dated August 2, 1876, all bearing interest at the rate of eight per cent, per annum.

Hjenby M. Shepabd, Judge, presiding. The appellant, Eberhardt, being a justice of the peace, duly issued, February 21, 1884, a writ of attachment in favor of Mary Casey, against the personal estate of John Casey, in the usual form, upon a debt of $38.83 for board, which writ was delivered to a constable to execute, and who, February 21, 1884, returned the same, that he found no property to attach; that he had served it upon John Casey by reading it to him, and that by order…

<p>1. Action for a tort—Entries as evidence.—Appellee sued appellant in an action on the case to recover of the latter as bailee the value of a package of jewelry sent to the latter's hotel to be delivered to appellee’s traveling agent. For the purpose of proving the different articles, prices, etc., "appellee introduced in evidence what was said to be a copy of an original memorandum book kept by him. Held, that even if the original entries themselves, which were matters between appellee and his traveling agent, had been introduced, they would have been inadmissible, since this action was for a tort, and account books of a party are inadmissible to prove any matter collateral to the issue of debt and credit between the parties.</p> <p>2. Secondary evidence-Destroying the iiiqhbr evidence — Where a party deliberately and voluntarily destroys the higher written evidence he must give affirmative evidence affording an explanation of the act, showing that it was done with pure motives and repelling every suspicion of a fraudulent design, before he can have the benefit Of secondary evidence,</p>

Henry M. Shepard,-Judge, presiding. This was a bill in chancery, brought by the Kelly Scroll Section Manufacturing Company against George Kelly, Henry D. Smalley and the Kelly Covering Company, for an injunction. A preliminary injunction having been awarded, the defendants appeared and filed a demurrer to the bill, which being overruled, the defendants elected to abide by their demurrer, and a decree was thereupon rendered making the injunction perpetual.

Kirk Hawes, Judge, presiding. This was an action on the casé brought by Samuel C. Sargent against the Central Warehouse Company to recover damages to a car load of flour delivered, to the defendant by Montague and Tohnau, for storage in defendant’s warehouse in the city of Chicago. The flour was delivered to the warehouse company December 22, 1881, for which a receipt was given in the words and figures following: “ Chicago, Dec. £2, 1881.

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

William H. Barnum, Judge, presiding. This was replevin for a quantity of building material and apparatus, brought by appellee, Allard, against Seimon and the Excelsior Stone Company. The declaration contained counts in the cepit and detinet.

William H. Barnum, Judge, presiding. This was an action of debt on a guardian’s bond, brought by the people of the State of Illinois, for the use of Stanley B. Sexton, against Jane A. Brooks, the widow and heir at law of Joseph P. Brooks, deceased, one of the sureties on the bond.

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

Thomas A. Moran, Judge, presiding. This was a bill in chancery, brought by the Chicago and Western Indiana Railroad Company to restrain the Chicago, 8t. Louis and Pittsburgh Railroad Company from constructing its tracks across the tracks of the complainant in Wallace street, one of the public streets of the town of Lake, in Cook county.

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

<p>1. Board on Trade—Rules.—The rules of the Board of Trade, as "between its members, have the force and effect of existing laws, and so far as applicable enter into and form a part of their board contracts.</p> <p>2. Chance m rule between time oe contract and delivery.— Where a party on tiie Board of Trade bought new “ No. 2 ” barley to be delivered in September, and between the time of making the Contract and the date of the delivery of the grain the board of commissioners changed the character of the description of No. 2 barley, and the barley tendered was of the latter description. Held, that the buyer was not obliged to accept it; the Contract was governed by the rule in force at the time it Was made,</p>

Sidney Smitit, Judge, presiding. This was an action on the case brought by Thaddeus Fairbanks and others, copartners under the firm name of Fairbanks, Morse & Co., against the Western Hnion Telegraph Company, to recover damages resulting from an erroneous transmission of a telegraphic message sent by the plaintiff’s agent from Sioux Falls, Dakota Territory, to the Michigan Pipe Company, at Bay City, Michigan.

Geoege Gardner, Judge, presiding. This was a suit in equity brought by Alvin Hulbert against Levi C. Merrick and others, to set aside certain releases of a trust deed conveying the west five acres of block 20, section 19, township 39, north of range 14, east of the third principal meridian, in Cook county, and to foreclose said trust deed.

<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. Thomas A. Moran, Judge, presiding.</p>

John Burns, Judge, presiding. Tliis was an action of assumpsit by appellee against appellant, upon an alleged promise of marriage, for damages sustained by its breach and aggravated by seduction.

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

George W. Stiffs, Judge, presiding. On the 15th day of April, 1880, John C. Barber was killed by the ears of appellant, while crossing the side track of the railroad where it passes over Main street in the city of Braid-wood. At this time the appellant had its tracks crossing Main street at nearly right angles, the road running nearly north and south, and the street east and west.

<p>Jurisdiction—Appeal.—No appeal lies to the appellate court from a proceeding instituted in the county court under chapter 107, R. S. 1874, entitled “ An act to revise the law in relation to paupers.”</p>

<p>Error to the Circuit Court of Whiteside county; the Hon. Joseph M. Bailey, Judge, presiding.</p>

H. M. Laws, Judge, presiding. The appellee commenced this action against the appellants to recover damages for not accepting and paying for grain alleged to have been purchased of him. by them. The defense was no contract. The defendants below were grain dealers in Peoria, and wrote to the appellee, a dealer in grain at Blandinsville, the following letter: Peobia, Ill., January 24, 1882. J. M. Davis, Blandinsville, Illinois.

■ Appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding. This action was commenced by appellants against the appellee, to recover damages for the loss of certain native cattle alleged to have died from Texas fever communicated to them by Texas or Cherokee cattle belonging to the appellee.

A. H. Barry, Hoiroyd being the owner of 120 acres of land in DeKalb comity, subject to certain incumbrances, sold his equity of redemption to one Grabbe, for $800, the grantee, to assume and pay the incumbrances. The $800 was to be paid before the delivery of the deed. The sum of $500 was paid, and Grabbe let into possession.

John Y. Eustace, Judge, presiding. This was an action of debt against the appellee, Beach, and his sureties, upon his bond as sheriff of Whiteside county.

S. G. Bo vie, Judge, presiding. Suit by appellee to recover upon a certain promissory note executed by the appellant and one Irwin, on July 5, 1877, due October 1st, after date, for the sum of $54.75, and made payable to the order of the appellee. The note constituted the case for appellee. The defendant below as a witness in his own behalf, testified as follows: Am the defendant. Signed the note in controversy in this case. My name appears first on the note.

J. MgRoberts, Judge, presiding. The city instituted proceedings before a justice of the peace to recover of the defendant a penalty fc-r the violation of the ordinances of the city in selling liquor without a license. For the offense alleged, the ordinance imposed a fine of not less than $25 nor exceeding $100. Upon being brought before the justice, he pleaded guilty to the charge, and the magistrate fined him $100 and costs of the suit.

<p>Jurisdiction.—A bill in equity by the husband and heirs at law, to set aside and have declared void a warranty deed made .by the deceased wife and her husband in 1858, when the wife, to whom the property had descended from her father, was still an infant. Held, that this court has no jurisdiction, as a freehold is involved.</p>