Volume 16 — Illinois Appellate Court Reports

F. Goodspeed, Judge, presiding. This action was instituted by the appellee to recover damages for injuries received by him from an alleged assault and battery committed by the conductor of the appellant upon him.

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

<p>Practice. — As the appellant has assigned no errors upon the record as required by the rules of this court, the decree is affirmed.</p>

George W. Stipp, Judge, presiding. This case was tried in the court below upon the following agreed state of facts: State oe Illinois, ) gg Circuit Court thereof, La Salle County. J October Term, A. D. 1883. John O’Sullivan v. The Commissioners of Highways of the Town of Deer Park. Assumpsit. Agreed case. Damages $1,500. And now comes the plaintiff, by Duncan & O’Connor and II.

Chas. Kellum, Judge, presiding. This action was commenced by plaintiff in error against the defendant in error to recover damages sustained by reason of injuries received from a gun-shot wound, the gun being discharged while in the hands of the defendant.

<p>1. Official bond — Sureties signing — Breach of condition.— Where sureties sign an official bond which the statute requires the principal to execute, and permit their principal to take it under the agreement and condition that he shall sign it before delivery, and they give no consent that it shall he delivered without his signature, the sureties would not he bound by such bond if it were delivered by the principal without signing, and accepted by the obligees in violation of such condition.</p> <p>2. Burden of proof. — Where an official bond, signed by sureties, bub not signed by the principal, who is required by the statute to execute it, is accepted by the obligees, the burden is upon the obligees to show that the sureties expressly consented to its delivery without its being executed by the principal.</p> <p>3. Implied authority. — It can not be said, in such case, that the possession of the obligation by the principal is an implied authority to deliver it in such condition.</p>

John J. Glenn, Judge, presiding. This is a bill in equity'filed in the circuit court by appellants against appellees, the averments of which briefly stated are substantially as follows: That Essley, on January 15,1872, borrowed of one McKinney the sum of two thousand dollars, payable in one year, for which he gave bis note bearing ten per cent, interest from date. That said loan was usurious, stating the terms of the loan showing that fact.

J. McRoberts, Judge, presiding. The appellee filed its bill in the circuit court against tl e appellant and others, in which it sets forth its incorporation, and that it was engaged in the city of La Salle in the manufacture of zinc spelter and sheet zinc, and for the purpose of obtaining the coal for carrying on such business had sunk a coal shaft, and was then mining coal for use in its manufactory and raising it through such shaft. The bill then avers*.

J. McRoberts, Judge, presiding. This is a bill for a divorce filed in the Circuit Court of Will county by the appellee against the appellant, alleging that the parties were married in Germantown, Pennsylvania, in 1872, and that they lived together until May, 1875, when the defendant, at the city of Chicago, willfully deserted the complainant without cause, and still absents herself, refusing to live with him; that one son is the only issue of such marriage, who is under the…

H. M. Laws, Judge, presiding. The appellee arid Robert Mack were both in the employ of the appellant on and prior to the 11th day of June, 1883, when the accident complained of happened, the one the switch-man or helper, and the other the engineer of the switch engine, which they were both operating and working together in the appellant’s yard in Peoria, Ill., engaged in switching cars, and the two had been together, so operating, for about one month.

<p>This case is reversed, a the verdict is entirely unsupported by the evidence.</p>

<p>Appeals — Bill not dismissed. — Where there has been no final disposition of a bill in the court below, and the bill has never been dismissed and no final order made, an appeal will not lie.</p>

J. McRoberts, Judge, presiding. There were origina ly three separate actions of assumpsit brought by the appel ee against the appellant to recover damages occasioned by de !ay to appellee by appellant failing to perform its covenants in three contracts existing between the parties to build portic ns of the court house of appellants, and the three suits were 1 y stipulation of the parties consolidated into one action for tl. 3 purposes of trial and determination.

One Peter Bressler executed to the .¿Etna Life Insurance Company his three several notes and several mortgages to secure the same. The first note was for $8,200, and the second for $6,500, and the third for $6,000. The number of acres of laud contained in all the mortgages was 1,080, and the number in tiie mortgage to secure the larger note was 410 acres. The date of the several notes and mortgages was March 21, 1881, and recorded on same day.

Wm. Brown, Judge, presiding. The plaintiff in error, who was the survivor of G. W. Lobinsón (deceased), his co-payee of the note hereafter mentioned, sued defendant in error on his promissory note, given by him to plaintiff in error and G. W. Robinson (now deceased) for the sum of $500, due one year after date, with interest at the rate of ten per cent., payable annually, dated June 8, 1875.

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

Rollin S. Williamson, Judge, presiding. This was an action on the case, brought by appellee against the city of Chicago, to recover damages for a personal injury alleged to have been received by him through the negligence of the city in suffering a sidewalk along which appellee was passing, to be obstructed by a quantity of old building material, which had been thrown out of a building across the walk and into a part of the street, thereby rendering it impracticable to pass…

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

<p>Chancery — The same equitable rules applied by the Supreme Court in case of the former appeal (Dawson v. Dawson, 110 Ill. 279) apply as well to the order in this case.</p>

<p>1. Right of action. — Where plaintiff was injured by the bite of a dog and it was shown by the evidence that the cost of medical attendance was incurred and paid for by plaintiff’s mother and not by plaintiff, the right to recover the cost of medical attendance would accrue to the mother and not the son.</p> <p>2. Instruction — Exemplary damages — An instruction authorized the jury to award such damages for the injuries sustained, as they might think proper and right in view of all the evidence. Held erroneous, in that no hypothesis upon -which exemplary damages might properly be awarded was submitted, and such direction was broad enough to include exemplary as well as compensatory damages.</p>

<p>1. Contractor. — One who contracts to do a specific piece of work, furnisking his own assistants, and executing the work either entirely in accordance with his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor and not a servant.</p> <p>2. Contract to build cable system — Non-liability of company. —Where a company contrauted with A to build a designated cable system, with certain specified materials to be furnished by the latter, and the question of how or where A should procure the materials was a matter with which the company had no concern, and A, for his own convenience and benefit, used a certain machine on the street to make the concrete with, and B, a child, while playing around the machine, was injured, and an action for damages was brought against the company. Held, that the company is not liable.</p>

Joseph E. Gary, Judge, presiding. This was a suit in assumpsit, brought by Carlos A. Cook against the Adams & Westlake Manufacturing Company upon the following instrument: “ Chicago, June 23, 1879. “ In order to secure general newspaper advertising, we hereby authorize O. A. Cook & Company, advertising agents, of Chicago, Illinois, to make all advertising contracts in our names, with the publishers of different newspapers, also with the union or co-operative publishers of…

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

George Gardner, Judge, presiding. The record in this case contains a stipulation embodying all the facts appearing in evidence at the hearing below, so far as they have any bearing upon the rights of the parties to this appeal.

<p>1. Evidence — Lease.—Where plaintiff rented a floor of a buil ling of A, who had rented the entire building from B, and B subsequently conveyed the entire premises to defendant, and at the same time assigned A’s lease to defendant, and plaintiff afterward paid the rent of his portion to def ndant. Iield, that in an action of trespass by plaintiff against defendant for interfering with his possession by entering his premises and making extensive repairs, it was error to exclude the lease of B to A in which the right to re-ent r the premises for the purpose of making improvements, alterations and repairs was reserved to the lessor, and swh reservation by express terms was extended to and made binding upon the assigns of the lessor and lessee.</p> <p>2. Recitals in deed — Chain of title — Notice.—Where recitals are contained in a deed in a party’s chain of title, he will be presumed to have seen and read them.</p> <p>3. Instruction — Burden of proof. — An instruction which held, in substance, ihat the burden was on the defendant to show that consent to the repairs in question was obtained from the plaintiff fairly and honestly, and after the pi lintiff was fully advised by defendant of the nature and extent of the inconvenience and annoyance to which such repairs a.nd alterations might subject him. Held, erroneous; such consent if given would be prima facie good, and the burden would be apon plaintiff to show it was obtained by frau 1. Plaintiff was only bound to explain fully and fairly the purpose of the entry and the extent and nature of the alterations.</p>

<p>1. General reward — Employe.—Where a railroad company offers a reward to any party, who will secure the arrest and conviction of any person who has injured persons or property by throwing stones, and makes no restrictions as to those who may participate in its benefits, an employe of the company who should bring himself within its provisions would not be excluded.</p> <p>2. Construction of contract. — The court is of opinion that the most reasonable interpretation to be given to the contract in this case is, that the company would pay the amount offered to any parties who would secure the arrest and conviction of any person who had, up to the time of such arrest and conviction, committed the act complained of.</p> <p>3. Who is entitled to reward. — To entitle a person to a reward he must show a rendition of the services required after a knowledge of and with a view of obtaining the offered reward.</p>

<p>Acknowledgment of chattel mortgage — Officer de facto.— Where a police magistrate who was duly commissioned, and had been acting as magistrate of a village for twelve years, lived in a village which was partly in one county and partly in another, and his office, where he always kept his docket, was in one county, and his residence in another, and the chattel mortgages in question were acknowledged and entered on his docket at his office, and the mortgagor lived in the township in the county where the magistrate’s office was, but not in the village. Held, that the magistrate at the time he took the acknowledgments was an officer de facto, and as such all his official acts were valid.</p>

<p>1. Mechanic's lien — Husband and wife. — Where materials purchased for the building of a house on premises owned by a wife were not purchased for her by her husband, nor did he profess to act in her behalf, but they were furnished to the husband on his sole credit and individual responsibility without reference to the wife’s property, no lien will be created upon the premises of the wife, but the material man must look to the husband alone for pay.</p> <p>2. Waiveh of lien. — Where the material man does not rely on his mechanic’s lien for his security, but on the responsibility of a third person to whom he gave credit, he waives his mechanic’s lien.</p>

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

<p>L Negligence — Preponderance of evidence. — The owner of cattle killed at a road crossing must prove by a preponderance of the evidence that his cattle were killed by the negligence of the employes of the road. As the preponderance of the evidence in this case fails to sustain the verdict of the jury, the case is reversed and remanded.</p> <p>2. Failing to give .signals. — Even if the bell is not rung or the-whistle sounded, as required by the statute, no recovery can be had for that cause, unless it is made to appear by facts and circumstances preponderating that the accident was the result of such neglect.</p>

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

<p>Mistake in execution op mortgage — purchase with notice.— Where a mortgage was given upon three lots, and by a mistake of the scrivener and the mortgagor, the mortgage executed covered only one of the lots, and subsequently the mortgagor and wife executed a quitclaim deed of the three lots to appellee. Held, that as the evidence shows that appellee took the quitclaim deed with a full knowledge of all the facts, he can only hold the three lots subject to the lien of the mortgage.</p>

<p>Verdict contrary to evidence. — As the evidence discloses that the tar in question, supposed by appellee to come from appellant’s works, did not come from there, since none was allowed to escape, the verdict is contrary to the evidence.</p>

<p>1. Duty op engineer. — If an engineer sees ahúman being upon or approaching the track, he has a right to presume such person will be governed by an intelligent judgment as to the approaching" danger. But he has no right to indulge in any such presumption in the case of a dumb brute. If he discovers an animal approaching the track in an attitude of danger, he must govern himself accordingly. But these rules apply only in cases of known or apparent danger. If an animal comes suddenly upon the track so close to the engine as to render all efforts to save its life unavailing, no action for negligence can be maintained.</p> <p>2. Failure to give statutory signals. — Where there is a failure to ring the bell or sound the whistle as required by statute, to create a liability for stock killed, it must be made to appear by facts and circumstances proved, that the accident was caused by such neglect.</p> <p>8. Negligence.' — While negligence is a question of fact for the jury, yet it is the province of the court to lay down the rules by which the jury is to be governed in determining what is negligence.</p> <p>4. Speed. — The court is unable to discover any omission of duty in regard to the speed of the train. The evidence does not disclose the existence of any special circumstance rendering it necessary for the engineer to adopt any other or higher degree of precaution than at the usual crossings of highways in the country.</p>

<p>Appeal from the County Court of Coles county; the Hon. Charles Bennett, Judge, presiding.</p>

<p>1. Landlord and tenant. — Where a tenant who had rented two rooms in a building was injured while passing down a rear stairway in the building, and the negligence alleged in the declaration was for a failure of the landlord to construct the said stairway in a suitable manner and of suitable materials and to so maintain the same as to be safe for persons having the right to use the same. Held, that as the proof fails to show any contract or any such special circumstances as would render it incumbent upon the landlord to look to the safety of the stairway for the benefit of his tenants, the landlord is not liable.</p> <p>2. Duty or landlord — Instruction.—In the absence of a contract or proof of other special circumstances imposing that duty upon the landlord, it is not his duty to keep the building safe for his tenants nor to protect it from intruders. As the instruction given holds the opposite, it is erroneous.</p>

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

<p>1. Becognizanoe. — In a proceeding by scire facias upon" a recognizance which bound the principal to be and appear at * * * until final settlement or order of the court, to answer for the offense charged, and to abide such final sentence or order, and to do and receive what should be by the court then and there enjoined upon him, and not to depart without leave, and the record showed a conviction and commitment of the principal, and upon his motion a subsequent suspension of the sentence by the court for six months. Held, that when the principal submitted himself to the judgment of the court, the recognizance became functus officio and no further binding on the surety.</p> <p>2. Becognizanoe — Functus officio — Bight of principal to ar. rest. — Where the recognizance has become functus officio, the surety has no longer the right to arrest the principal, and it is unnecessary to surrender hun before the court can set aside a judgment of forfeiture.</p> <p>3. Judgment by default, motion to set aside. — Where a motion is made to set aside a judgment by default, the affidavits made in support of the motion are the only ones the court can look into.</p> <p>4. Application to set aside default. — The court is of opinion that the application of the surety to have the judgment set aside, showed not only a good defense to the action, but due diligence on the part of the surety.</p>

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

<p>Trover — Action by administratrix. — A policy of insurance payable to the party insured, his executors, administrators or assigns, was, upon such party’s death, delivered to the guardian of the beneficiaries. The company resisted payment on the ground of a defense to any suit commenced on such policy. The guardian commenced suit, but finally compromised for fifty cents on the dollar, and upon payment, surrendered the policy to the company and dismiss id the suit. It was claimed afterward by the guardian and the mother of the beneficiaries that the settlement was void on account of the company’s fraudulent representations, and the mother, as administratrix of the estate, now brings an action of trover against the company for the unlawful conversion of the policy. Held, that this action can not be maintained by the administratrix. At the time of the alleged conversion the property was rightfully in possession of the guardian, and the administratrix had neither the possession nor the right to the possession.</p>

<p>1. Fellow-servant — Question of fact. — While the definition of fellew-servants may be a question of law, whether the particular case falls within the definition is always a question of fact to be determined from the evidence.</p> <p>2. Ground of liability of master. — It is the relationship into which the parties are brought by the nature of their several employments which constitutes the ground of liability or non-liability of the master for the negligent acts of his servants toward each other, in contradistinction from an actual, present and personal consociation of the individuals themselves in the performance of their several duties at the time of the injury.</p> <p>3. Instructions. — As the instructions given for appellee made the appellant's liability depend upon whether or not appellee and the train men were known to each other, and not usually working together, and not actually co-operating in the same business or work at the time of the injury» they are erroneous.</p>

<p>1. Proof of loss — Waiver.—Where the contract of insurance required the appellee to make proof of loss by a sworn statement, the fact that the adjuster of the company made an examination for the 'company did not discharge or relieve appellee from making the statement required in the policy.</p> <p>2. Collection of overdue premium — Waiver.—The collection of an overdue premium, after a loss, is not a waiver of a defense of forfeiture of the insurance by the assured, by a breach of the conditions in other respects.</p> <p>3. Continuing "warranty. — Where the terms employed in a policy were, “ That if it (the property) be used for any other purpose than is mentioned in said application, without the consent in writing of the company, then (his policy to be void.” Held, that the object and meaning of this provision must have been clearly understood by the parties as a continuing warranty as to the use of the property.</p> <p>4. Change of occupancy. — The conversion of a dwelling house into a house of prostitution is such a change in the character of the occupation of the property as to render the policy void.</p> <p>5. Agency — Instruction.—An instruction that “if the jury believe from the evidence that H. was the agent of said company for taking the application for said insurance, aud that he wrote it out., then the company would be chargeable with notice of any matter affecting such application of which H. had notice.” Held erroneous. Even if the agent had notice he had no power to pass upon the risk, or make a contract of insurance, or vary the terms of the application voluntarily made by appellee.</p>

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

<p>Assignment. — The county court is by statute, in cases of assignment, invested with complete and full jurisdiction over the trust fund and the assignee, until the property is disposed of and the proceeds distributed to those entitled to share therein and has power to determine the priority of the liens of the several creditors.</p>

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

<p>1. Evidence to sustain verdict. — Great presumptions will ordinarily be indulged in favor of the verdict of a jury, and where there is slight evidence in support of an allegation, if there is no conflicting testimony the verdict will be sustained; but where there is a total absence of testimony upon a material point, the judgment must be reversed.</p> <p>2. Admissions — Record.—Where, upon a trial, parties by counsel admit or concede, without proof, that any material averment is true for the purposes of the trial, it is unnecessary to make proof upon the point so conceded; but in such case the admission should appear in the record, and should properly be incorporated in the bill of exceptions.</p>

<p>1. Fraudulent conveyance. — The court is of opin'on that the transaction with reference to R’s interest in the estate was contrived for the purpose of hindering and delaying the collection of the debts in question, and that while the title to the property was transferred from R, it was understood that she retained a secret interest in the property and its proceeds.</p> <p>2. When complainant may proceed by bill without issuing execution. — The complainant may proceed at once by bill to remove a fraudulent incumbrance out of his way without waiting to issue an execution where he has a judgment capable of being enforced, that may be made operative in prcesenti.</p> <p>3. Parties. — Where the fraudulent grantee conveys a portion of the real estate to third parties, before the filing of the bill, and such persons are not made parties to the bill, it is error to decree a sale of all the real estate in question.</p> <p>4. Chancery. — Where certain relief is not specifically prayed by the bill, and there is not such a case made by the bill as would justify such relief under the general prayer, it is error to decree it.</p> <p>5. Fraudulent conveyance by debtor — Exemption.—Where the debtor makes a fraudulent conveyance of his property for the purpose of placing it beyond the reach of his creditors, the right to exemption in such property is not extinguished.</p>

It was averred in the bill that the directors, in violation of the statute, had caused to be levied the sum of $691.35, as a special school tax for building purposes, without having received authority to do so by a vote of the people of the district as provided by law.

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

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

<p>Appeal from the Comity Court of Franklin county; the Hon. W. H. Williams, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p>

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

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

<p>1. Bastardy — Making proeert op child. — In an action of bastardy it is improper to introduce the bastard child in evidence for the purpose of showing a resemblance between it and the defendant.</p> <p>2. Evidence. — The questions asked the plaintiff in this case, to which objection was sustained by the court below, were pertinent, either for the purposes of impeachment or showing the general character of the witness, and in arriving at the truth of the charge against the defendant.</p>

<p>1. Right to peremptory writ of mandamus. — The right of the party asking for a peremptory writ of mandamus must be unquestionable.</p> <p>2. Roads and bridges — Petition under section 110 of statute.— The county board is not required to grant the prayer of a petition based on section 110 of the act of 1879, entitled, “ An act in regard to roads and bridges in counties under township organization,” until the town has provided for one half of the fund necessary to construct the bridge as provided by the statute. It was error in the court below not to carry back the demurrer to the amended answer to the petition for a mandamus.</p>

<p>Error to the County Court of Monroe county; the Hon. William Erd, Judge, presiding.</p>

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

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

<p>1. Agency — Pkhsonal liability of agent. — Where a party undertakes to do an act as the agent of another and has no authority from the principal therefor, he will be personally responsible to the person with whom he deals. But the agent acting wit bout authority would not be held personally liable under some circumstances when the want of authority was known to both parties or unknown to both parties.</p> <p>2. Equity jurisdiction. — Where appellant, an employe of appellees, police commissioners, recovered a judgment at law against appellees, and appellees come into a court of equity claiming that the Police Act being declared unconstitutional, they, as agents, had no authority to bind the city, but were legally and personally liable on the contracts made by them, and that therefore equity should afford relief against such unjust judgment. Held, that if there was no personal liability resting on appellees they hadas full opportunity to make that appear on the suit at law as in this suit. And as regards the question the matter is res adjudicate.</p> <p>3. Garnishment — Exemption.—The employer, when garnished as the debtor of his employe for wages due him, he being the head of a family and residing with the same, is bound to set up that i'act for such employe and claim the benefit of the exemption for him. If the employer fails to do so and loss results thereby, it should fall upon the employer.</p>

<p>1. Lien of execution. — The lien of an execution except as to property levied upon, ceases with the return day of the writ. After that time, when no seizure has been made, the writ, whether returned by the officer or held in his hands, is functus officio and has no vitality whatever.</p> <p>2. Unlevied execution — Injunction.—Where an execution is issued, but before levy an injunction is obtained restraining the collection of the execution, and the injunction is not dissolved until after the return day of the writ, such writ is functus officio.</p> <p>3. Construction of statute. — As section 8 of chapter 77, which provides that executions shall be made returnable in ninety days after the date thereof, is not mentioned or designa" ed in section 2 of chapter 77, the rule that the expression of one thing is the exclusion of another applies. Section 8 of the Injunction Act is to be regarded as in pari materia with the provisions of chapter 77.</p>

<p>Appeal from the County Court of Richland county; the Hon. Phinney D. Preston, Judge, presiding.</p>

<p>1. Practice’Act — Construction of statute. — The court is of opinion that the true intent and meaning of section 2 of the Practice Act is that one or any number of defendants may he sued, either in the county where he or they reside, or where he or they may be found.</p> <p>2. Pleading — Non-joinder of co-defendant. — In an action ex coir tractu, the non-joinder of a co-defendant can he taken advantage of only by a plea of abatement. But where it appears on the face of the record that another joint obligor has not been joined, advantage may be taken of it, either by motion in arrest of judgment, or on error.</p> <p>3. Parties. — Where it was claimed as an exception to the general rule, that if one of several co-contractors is resident out of the jurisdiction, all, or any of them may be sued, and the person or persons sued can not object to the non-joinder of their co-contractors. Held, that the expression, “resident out of the jurisdiction,” contemplates the case of one who is resident in a sovereignty other than the sovereignty in which the tribunal implicated is located, and has power; and therefore, if the claimed exception were good, it does not apply in this case.</p> <p>4. Measure of damages — Attachment bond. — The measure of damages to be recovered on the attachment bond is the actual expenses and loss resulting from the attachment, including counsel fees for professional services rendered in relation to the attachment, but not for attorney’s fees paid in defense of the principal suit.</p> <p>5. Same — Personal services. — The traveling expenses and hotel bills of appellee, incurred by him in coining to the trial, were proper to he considered in the assessment of damages for the wrongful suing out of the attachment; as to the matter of his personal services, it must be shown by the evidence that the loss of such services was an injury or detriment to the business of the firm.</p> <p>6. Witnesses — Hotel bills, etc. — Where there was no evidence in the record to show that the personal presence of appellees’ witnesses was necessary, it was error to allow their traveling expenses and hotel bills in the assessment of damages.</p>

<p>Jurisdiction. — As the object of the petition filed in this case is to compel the conveyance of certain lands to the relator in fee a freehold is involved, and this court has no jurisdiction of the appeal.</p>

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

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

<p>1. Proof of offense. — The court is of opinion that the evidence in this case of the commission by defendant, since her marriage, of the off nse charged, is sufficient to establish her guilt.</p> <p>2. Marriage with immodest woman— Divoroe. — If a man knowingly marry a prostitute upon her promise of reformation, and she commit adultery after the marriage, the husband is entitled to a divorce.</p>

<p>1. Jurisdiction — Evidence showing claim in excess of. — When the evidence is all in, and it fairly tends to show a claim in excess of the jurisdiction of the court, then, before the case is submitted either to a court or jury, is the time for the plaintiff, if he has not done it before, to disclaim all right to recover any more than the sum in his ad damnum.</p> <p>2. Remittitur — Effect of. — If the plaintiff fails to so disclaim, a remittitur after verdict or the announcement of the finding of rhe court, will not do, and can not make such verdict or finding within the jurisdiction of the tribunal.</p>

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

<p>1. Verdict contrary to evidence. — As the evidence fails to sustain the verdict, the judgment is reversed and the cause remanded.</p> <p>2. Witness — Conclusions oe. — Where a witness, at the commencement of his testimony, swears thatthe defendant owes the plaintiffs §803.32, such statement is a mere conclusion of the witness, which the jury are not at liberty to consider.</p>

George Gardner, Judge, presiding. May 10, 1873, appellee sold and conveyed to appellant, by warranty deed, a piece of land described therein, situate in Cook county and within the assessment district for the South Park.

<p>Assignment — Appeal.—A petition was filed in the county court, praying for an order to require the assignee of an insolvent estate to hand over to the petitioner certain property which the assignee claimed to hold under the assignment, but which the petitioner claimed belonged to him. Held, that an appeal will lie to the circuit court from an order of the county court granting such petition. Such proceeding can not be held to be a “ common law case,” under section 123 of the statute in relation to county courts.</p>

Elliott Anthony, Judge, presiding. This was an action of trespass, for false imprisonment, brought, by Henrietta Blanchard against Augustus J. Burbank, Joshua W. Carr, Anna Ewart and the Washingtonian Home of Chicago.

Joseph E. Gary, Judge, presiding. This was an action by appellee against appellant to recover damages for a personal injury to her. The trial resulted in a verdict and judgment against appellant for $3,000, to reverse which this appeal is prosecuted.

George Gardner, Judge, presiding. The writ of error in this case brings up for review a decree sustaining a demurrer to a hill in chancery brought by Henrj’-Gillett against Sarah Ann Hickling, executrix of the last will and testament of William Hickling, deceased, and others, and. dismissing the hill for want of equity.

<p>1. Attachment writ — Evidence.—As there is no evidence in the record to support the allegations in the affidavit for the attachment, the case is reversed.</p> <p>2. Practice. — An objection in this court that no bill of exceptions was filed or tendered until several terms after the trial of the attachment issue, comes too late when the bill of exceptions, containing all the evidence, appears in the record, and no motion was made to strike it out.</p>

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

Elliott Anthony, Judge, presiding. Tins was replevin by Mansfield & Co., appellees, merchants doing business at Johnson’s Creek, in the State of Wisconsin, against appellant as sheriff of Cook county, to recover a quantity of cheese which the former had sold and shipped from their place of business in Wisconsin, to Fay & Conkey, then wholesale grocers doing business in the city of Chicago, and which had been seized by the said sheriff under writs of fi.fa. against said Fav &…

Murray F. Tuley, Judge, presiding. On the third day of July, 1872, Charles C. P. Holden and Thomas IÍ. Armstrong, the former being the owner in fee of lot twelve, and the latter of the adjoin ng lot eleven in ¡Rogers’ subdivision, etc., in Chicago, executed, under their hands and seals, the following party wall agreement: “ This agreement, made this third day of July, A. D. 1872, between Charles C. P. Holden and Thomas IÍ.

Appeal' from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding. This action was replevin in the oepii, brought below by appellees, Warren & Co., against appellant, Catlin, and George By all. The declaration contains one count in replevin, as aforesaid, and one in trover. The defendants pleaded non Gejylt and property in Gatlin, to the count in replevin, and not guilty to that in trover; on which issue was taken.

John G. Rogers, Judge, presiding. This was an action on the case, brought by Melson J. Davis and others, copartners doing business under the firm name of Davis Brothers & Porter, against the Lake Shore and Michigan Southern Bailway Company, to recover damages for the loss of certain oil by leakage, during its transportation from Buffalo to Chicago over the defendant’s railroad.

<p>1. Premises wrongfully withheld — Interest.—The judgment in the forcible detainer proceedings being conclusive evidence that the tenants were treated by the landlord as trespassers, it was therefore proper for the court to direct the jury that they might allow interest on the rental value of the premises wrongfully withheld.</p> <p>2. Instruction — Estoppel.—As the instruction on estoppel given in this case contained no hypothesis that the acts or conduct of A, from which the equitable estoppel was to arise, were willful, or that they were designed on her part to mislead B in the premises, or even that they were of such a nature or character as to be calculated or likely to mislead him, or that misleading him, as was supposed in the instruction, was a natural or probable consequence of such acts or conduct, it was erroneous.</p>

Rollin S. Williamson, Judge, presiding. The appellants, Lord & Co., being creditors of G-eorge Babel, sued out of the Superior Court of Go ok county, October 25, 1883, an attachment against the latter, directed to the sheriff of that county. Babel was not found, but one F. F,. Pettit was summoned as garnishee, and return made accordingly.

Joseph E. Gary, Judge, presiding. This action was trover, brought by appellees, who were manufacturers of hosiery goods at Kalamazoo, Mich., against the appellant, who was a banker in the city of Chicago, to recover for an alleged wrongful conversion ‘ by appellant, -of divers quantities of said goods. The case was tried by the court without a jury, the trial resulting in a judgment against appellant for $4,522.13 damages.

<p>1. Allegations and proof. — An individual expenditure of money by one of several persons does not sustain an allegation of a joint expenditure by all.</p> <p>2. Injunction bond — Damages.—Where an injunction bond was conditioned for the payment to the plaintiffs, their heirs, executors, administrators or assigns of all such costs and damages as should be awarded against 1 he complainant in case the injunction should be dissolved. Held, not to apply to damages sustained individually by one of the obligees.</p>

George Gardner, Judge, presiding. This was a bill in equity, brought by appellee against appellant, for an accounting of partnership dealings. Prior to April 2, 1883, appellant had been doing business as a contractor and builder in the city of Chicago. Appellee was a mason and during that year had acted as foreman for appellant.

Thomas Moran, Judge, presiding. This was a petition, under the statute, by Blocks against Simon, for a mechanic’s lien, and sets out a contract in writing between the parties dated Feb. 1, 1881, whereby the former agreed to furnish the materials and build a house for the latter, according to specifications, upon a lot of the latter in Iiavensvvood, and have the whole work completed by the first day of May, 1881, for which Simon agreed to pay the sum of $1,545, as follows:…

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

<p>Appeal from the Circuit Court of Winnebago county; the lion. Joseph M. Bailey, Judge, presiding.</p>

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

<p>Appeal from the City Court of Elgin; the Hon. C. W. Upton, Judge, presiding.</p>

<p>1. Injury from water — Dub to various causes — Province of jury. — Where a city is liable for certain damages from the water set hack by a sidewalk, but is not liable for dam iges done by drainage in its natural course from other quarters, or by percolation, and the former damage can not be ascertained with certainty, it is the province of the jury to estimate, as best they can from the evidence, how much of the whole amount was occasioned from the sidew ilk, but it is not proper to include any portion of that amount that was due to the o.lier causes whether operating independently of or in conjunction with it.</p> <p>2. Burden of proof. — When the nature of the case admits of it the burden of distinguishing by proof the amount due to the cause alleged, and for which the defendant is responsible, from that due to other causes, is upon the plaintiff.</p>

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

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

<p>1. Usury. — The court is of opinion that the original contract in this case was usurious.</p> <p>2. Mortgage — Sale.—if a party purchases from a mortgagor without any deduction from the price on account of the incumbrance, he thereby becomes invested with the right to interpose the same defenses as might have been made by the mortgagor.</p> <p>3. Sale subject to mortgage. — But if the sale is made subject to the mortgage and the amount of the incumbrance is deducted from the price, the grantee will not be permitted to make the defense of usury.</p> <p>4. Subsequent puKCHASEH.-^Where the deed from the purchaser in such case contained this provision: “Subject to all legal claims the holder or holders of two certain mortgages on said tract may have by virtue of said mortgage thereon.” Held, that the grantee does not occupy any better position than her grantor, and can not take advantage of the usurious contract.</p>

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

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

<p>The court is of opinion that the verdict is not contrary to the evidence and affirms the judgment.</p>

<p>1. Oottcer with execution — Replevin.—An officer having an execution in his hands which may be a lien on property, confers no right on him to maintain replevin. His duty is to levy the execution oh the property.</p> <p>2. Levy. — -In order to constitute a valid levy upon personal property, the officer must reduce the properly to possession, or at least bring it within his immediate control. Mere “ pen and ink” levy is not sufficient.</p> <p>3. Evidence — Materiality.—As there was nothing in the record to show how the evidence to which objections were made and sustained was material or relevant to any issue in the case, the judgment is affirmed.</p>

<p>Insurance — Acceptance of premium — Waiver.—Acceptance of premiums by an insurance company, with the knowledge that the policy is subject to forfeiture by reason of the violation of a condition, is a waiver of the condition, and the policy will be binding.</p>

<p>1. Instructions. — Where there is a conflict in the evidence, the instructions should be accurate, clear and perspicuous.</p> <p>2. Agency — Instructions.—An agent may make himself liable to his principal for an act done in excess of his authority, and yet the principal be responsible to third persons for the act, if done within the scope of the agent’s apparent authority. As the instructions given proceeded upon the theory that in order to charge the principal with the acti of the agent the agent must have had express authority from his principal to do the act, they were erroneous.</p>

<p>Assumpsit. — As there was no evidence of payment or set-off suffi lent to defeat plaintiff’s right of recovery it was error in the court not to instruct the jury to find for the plaintiff the amount due.</p>

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

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

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

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

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

<p>1. Negotiable instrument — Alteration.—Where anote was given to a party with a blank space left after the word “at,” where the place of payment is usually mentioned, and at such party’s direction, “ Blandinsville, III.” was inserted after the word “ at,” by the payees. Held, that this was not a material alteration of the note.</p> <p>2. Ratificati in. — If one with full knowledge of the facts accepts the avails of an unauthorized treaty made in his behalf by another, he thereby ratifies such treaty and is bound by its terms and stipulations as he would be had he negotiated it himself. As to the change in the rate of interest that the notes bore, appellant has ratified the same by retaining the property after having full notice of the change.</p>

<p>1. Partnership assets. — The right to have the partnership assets applied to the payment of the partnership indebtedness is for the benefit of the partners. The creditors of the firm have no such right except through the partners. The members of the firm during its existence may consent to the appropriation of the firm assets to the payment of the individual creditors of each member of the firm, or to the individual creditors of one member.</p> <p>2. Sam to cop arts be. — A sale by one partner of his interest in the firm to his copartner, upon his assuming and agreeing to pay the d«bts of the firm, is a personal obligation to pay, and the right to sell and dispose of the assets is vested by the sale in the copartner, free from any lien on the assets for the payment of the firm indebtedness.</p> <p>3. When no sale — Where there has been no sale by one party to his copartner of his interest in the partnership properly, but the same is left with the copartner to sell and dispose of, and pay the debts, the right of the retiring partner to have the assets so applied still exists.</p>

<p>Appeal from the Circuit Court of Mercer county; the Hon. George W. Pleasants, Judge, presiding.</p>

<p>1. Landlord and tenant — Covenants—How construed. — Covenants against assignment or underletting are not favorably regarded by the courts, and are construed liberally in favor of the lessees, and so as to prevent the restriction from extending beyond the express stipulations.</p> <p>2. Lease jointly to two — Covenant not to sublet. — Where a lease is jointly to two, and by an arrangement between them, each occupies a several portion of the premises, such several uses cannot justly be regarded as breaches of a covenant not to underlet.</p> <p>3. Taking person into partnership. — When a tenant, without a license from the landlord, takes a third person into copartnership with him, and lets such person into joint possession of the premises, it is not a breach of a condition in the lease against subletting.</p> <p>4. Partnership to avoid forfeiture of lease. — The fact that the desire of avoiding a forfeiture of the lease was instrumental in determining the parties to form a partnership rather than assume the relation of landlord and tenant was no fraud upon the rights of appellee.</p>

This suit was a bill in equity tiled by the plaintiff in error against the defendant in error to recover the amount of two promissory notes for five thousand dollars each, given by James A. Bundy, deceased, in his lifetime, dated Aug. 23, 18)8, du3 in ten years from date, one payable to Martin, and one to Marion Bundy, praying that a lien be'declared against all the property of J. A. Bundy, deceased, in the bands of the widow or assignees or heirs, for the payment of the…

<p>1. Extreme and repeated cruelty. — Where the truth or falsity of the charge of extreme and repeated cruelty rested nearly entirely upon the evidence of the husband and wife, the one affirming and the other denying. Held, that this court can not say that the court below erred in not finding for the husband.</p> <p>2. Awarding child to mother. — As the husband failed to provide suitable support for his wife and the wife has been earning a comfortable support by her profession as actress, and is abund-mlly capable of caring for the child, there was no impropriety in the decree of the court below awarding the child to the mother.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Joseph M. Bailey, Judge, presiding.</p>

C. W. Upton, Judge, presiding. The appellant tiled in the county court a petition, July 1, 1884, showing that she was the widow of James S. Waterman, deceased, who died July 19,1883, and that deceased left a will which had been admitted to probate and that appellees had been appointed executors.

<p>Instructions. — The court is of opinion that the instructions'upon fraudulent sale stated the law accurately and correctly, and therefore the judgment is affirmed.</p>

<p>Fraudulent conveyance. — Although appellees were the sons-in-law of A, and the conveyances in question were no doubt made by A for the purpose of favoring appellees, to secure their claims in preference to appellants and other creditors, yet, after a careful examination of the evidence, the court is unable to say that there was any fraudulent intent on the part of the appellees.</p>

Franklin Blades, Judge, presiding. This suit was brought by the appellee to recover damages for the wrongful killing of Barbara McKnight, on Feb. 21, 1883, by the train of the appellant, which was a construction train with a caboose attached, and was backing from Milford to Wellington on the track of the railroad.

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

Charles Kellum, Judge, presiding. On the 1st day of May, 1874, John Aithen and appellee, who was then his wife,' having since his death intermarried writh Leinour, executed a mortgage to R. L. Devine for $2,500 on his business block, which was worth about $6,000. On the 18th day of February, A. D. 1875, said Aithen and appellee, his wife, executed a second mortgage on the same premises to Henry Roth to secure payment of note for $100.

<p>1. Suit on bond — Sureties’ liability. — Where sureties for a defaulting city clerk are sued upon their bonds, which bonds are conditioned that the said clerk should well and truly perform all and every act and duty enjoined on him by law to the best of his skill and ability, and should justly, fairly and promptly account for and pay over and deliver all moneys and other property that might come into his hands by virtue of his said office, said sureties can not be held responsible for sums of money that may be collected by such clerk where there was no ordinance or by-law which authorized or made it the duty of such clerk in the discharge of his duty to collect such sums of money.</p> <p>1. Publication of ordinances — Evidence.—Where the law provides that proof of publication of ordinances shall not be necessary until denied under oath. Held, that information and belief can not supply the place of a positive allegation of the non-publication as required by law.</p>

<p>1. Void execution. — An execution issued before a judgment confessed in vacation has been entered up by the clerk, is void, and can not be cured by a subsequent amendment of the record.</p> <p>2. Evidence — Parol, to contradict record. — Where declarations, powers of attorney, affidavits and cognovits, are fi'ed with the clerk of the circuit court in vacation for the purpose of having him enter up judgments by confession thereon, and the clerk after filing the same, issued executions thereon as upon judgments confessed, and property was levied upon under said executions that same day, while the judgments were not actually written up until two days later, and the rights of other creditors intervened. Held, competent to show by parol that at the time the executions issued there were no judgments to support them, although it contradicted the record, which apparently showed the judgments as written up the day of filing.</p> <p>3*. Jurisdiction — Oe county court not entirely exclusive. — The jurisdiction of the county court in matters of assignments for benefit of creditors is not so exclusive that the circuit court is thereby ousted of its jurisdiction to recall or quash writs issued irregularly or wholly without authority by its own officers respecting the property in the assignee’s hands.</p>

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

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

<p>Highway commissioners — Dotjbt as to line. — Under the circumstances of this case the court is not disposed, notwithstanding the doubt in regard to the line, to disturb the finding of the chancellor.</p>

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

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

<p>Error to the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. W. L. Gross, Judge, presiding.</p>

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

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

<p>1. School districts — New district. — A bill in chancery, by a newly created, school district, to compel the payment by the old district ot the amount found due upon the division. Held, that such a case presents ground for relief in a court of equity.</p> <p>2. Shit barred by delay. — Where a bill in chancery, by a newly created school district, to compel the payment by the old district of the amount found due upon the division, was not filed until thirteen years had elapsed after the division. Held, that as the trust is an implied one, arising by operation of law, the delay of thirteen years in bringing the suit is a bar to recovery.</p> <p>3. Trusts — When Statute of Limitations applies. — As to express trusts, strictly and technically so called, where the exclusive jurisdiction is in equity, there is no bar in actions between trustee and cestui que trust based upon delay in bringing the suit; but as to implied trusts arising by operation of law, the maxim, *• Vigilantibm non dormientibus equitas subvenit ” applies, and the action will be barred by the time fixed by the statute in analogy to the limitation of similar actions at law.</p>

<p>1. Drainage — Assessment op damages — Variation in line.— Where proceedings under the drainage law are had to appropriate property upon a certain line, the line so specified must be followed. If a substantially different line is adopted there must be another assessment, and it will not answer the purpose to say tint it is not more injurious to the land than the first line, and therefore no new proceeding is necessary. As the line in this case was a substantial variation from the line indicated by the plat, the injunction should have been granted.</p> <p>2. Injunction — Formal defect. — Where the bill prayed that defendants might be enjoined from doing the work in question. Sdd, that the omission in the bill to ask for process is purely a formal defect.</p>

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