Volume 17 — Illinois Appellate Court Reports

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

<p>1. Promise—Consideration.—Action, or the refraining from action, by the promisee, if to his own disadvantage, though of no benefit to the promisor, may constitute a sufficient consideration to support the promise.</p> <p>2. Consideration insufficient.—If the act done or refrained from is forbidden by good morals, or by the common law, or the express provision or general policy of a statute in force, such doing or refraining would not constitute a legal and sufficient consideration for the promise.</p> <p>3. Same.—Where certain hogs belonging to appellee were being treated by a doctor, for hog cholera, and appellee told appellant, who accompanied the doctor, that he was afraid the forty in question were going to die and he thrught he had better ship them, and appellant said, “ Yon leave the hogs there for the five days and I will give you $25 for every one that dies.” Held, that if these hogs or any of them were so diseased, and appellee had reasonable ground to suspect it, he was forbidden both by good morals and by the statute to ship them, and in such case his refraining from so doing would not be a sufficient consideration to support appellant’s promise.</p> <p>4. Damages.—If an agreement be unreasonable and unconscionable, hut not in such a way or to such a degree as to imply fraud, though courts of law will not declare the contract void, they will give only reasonable damages to the plaintiff who seeks compensation for the breach of it.</p>

<p>Interest.—As nothing was due upon appellant’s promise until he was in default, it was error to charge him with interest from its date.</p>

<p>Appeal from the Gircu.it Court of Greene county; the Hon. G W. IIebdman, Judge, presiding.</p>

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

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

<p>Whex court will grakt appeal.—When the amount involved is nearly up to the limit where an appeal is a matter 'of right, or when the case involves collaterally other matters than those in suit, then if the question is important or difficult of solution there would be such a case as the statute intends; but the court is of opinion that the above does not apply in this case.</p>

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

<p>Mistake.—Land was conveyed by a wrong description, and the purchaser obtained a loan from a third party, secured by a mortgage following the same incorrect description. Held, under the circumstances of this case that the mortgagee did not occupy the position of an innocent purchaser for value, as against the original vendor, and the mortgage was declared a cloud upon the land actually described therein (also belonging to the original vendor), and ordered released by the decree of the court.</p>

<p>1. Evidence.—Where a medical witness was permitted to express his opinion as to whether the plaintiff was permanently injured, based upon an examination of the case made six months before the trial. Held, that it can not be judicially determined that an opinion so predicated is incompetent.</p> <p>2. Instructions—Time on injury.—Where it was objected that an instruction required the plaintiff to have exercised “ due care at the time of the alleged injury ’ ’ only. Held, that the objection in this case is untenable. The jury would understand the time referred to by the instruction to be, not the very moment the hurt was received, but the general occasion covered by the proof.</p>

<p>1. Road and Bridge Act—Emergency.—-Where abridge was washed away in February, 1883, and the question at issue was whether such an emergency as contemplated by the law which went into force July 1, 1883, continued and existed on the 1st of July. Held, that under the facts disclosed by the record there was then such an emergency as contemplated by the law, and it was competent to proceed with the work at once and present the petition for county aid during its progress or after its completion.</p> <p>2. Two towns—County aid.—Where a- bridge crosses a stream which is a town line or near it, the expense is to be sustained by the two towns, and when, as an additional feature, the facts bring the case within the purview of section 19 of the Road and Bridge Act, the two towns may jointly seek aid from the county.</p> <p>3. Instructions—Public highway.—Although one of the instructions as to the road being a public highway, stated the law inaccurately in one or two points, yet had the instruction not been given at all, or had it been properly modified, the jury must certainly have found as they did upon this point; the defect is not sufficient ground to reverse.</p>

<p>1. Injury to real property—Jurisdiction.—The expression * ‘ injury to real property” used in clause 2, §13, Oh. 79 of the Revised Statutes, which defines the jurisdiction of a justice of the peace, embraces all injuries to real property, whether direct or consequential.</p> <p>2. Cause oe action—Instruction.—Where the evidence tended to show that certain works built by a railroad company were permanent in their form and character, and that the injury thereby occasioned to the adjoining property was a loss to the then owner, for which he then had a cause of action which did not pass to plaintiff by his deed. Held, that it was error in the court to refuse to instruct the jury upon this view of the law.</p>

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

<p>1. Homestead .—The estate of homestead is created by the statute for the protection of the family of the debtor, and the right thus created can be relinquished only in the mode pointed out by the statute or by abandonment.</p> <p>2. Defective acknowledgment.—Hpon a bill filed to foreclose a mortgage, where the instrument contained the usual release of homestead, but the certificate of acknowledgment failed to state that the homestead was released by the husband, though it was sufficient in that respect "as to the wife, it was sought to correct the certificate so as to conform to the statute. Held, that there is no power in a court of equity to make the correction.</p>

<p>1. Ordinance—Common carriers.'— Ordinances winch are designed to operate upon those who hold themselves out as common carriers in a city for hire, and to so regulate them as to prevent extortion and wrong to strangers and others compelled to employ them in having their property or persons carried from one part of the city to another, come properly under a rightful exercise of the police power.</p> <p>2. Same.—Where appellee was in no legal sense a common carrier, but being the owner of a livery stable let two of his teams to another person to be used for the temporary purpose of hauling and securing a quantity of ice. Held, that he was not within the terms or spirit of the ordinance.</p>

<p>Hbsltgencb.—Fellow servants.—As the court below ignored the points upon which the case turned, viz., as to the negligence of fellow servants and whether the injury was not produced by causes incident to the service, it was error.</p>

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

<p>1. Chancery jurisdiction.—A court of equity will not set aside a judgment at law unless the complainant has been prevented from making his defense by fraud, accident or mistake, nor unless he has used reasonable diligence.</p> <p>2. Remedy at law.—If the court in this case erred in assuming jurisdiction, the error, if not waived or cured, could have been corrected by an appeal or writ of error, and thereby an adequate remedy was available without resort to a court of chancery, where appellate functions are not exercised.</p>

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

<p>Error to the Circuit Court of Edgar county; the Hon. 0. B. Smith, Judge, presiding.</p>

<p>Slander—Instruction.—In a case of slander it is competent for the defendant to establish the truth of the matter charged by a preponderance of testimony. As the instructions given were not in accordance with the above, they were erroneous. The second instruction was erroneous in that it entirely ignored the plea of justification.</p>

<p>Verdict undisturbed.—Where the evidence is conflicting and the jury-are properly instructed as to the law of the case, their verdict must be regarded as settling the controverted fact.</p>

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

<p>1. Evidence—Contradiction oe witness.—The general rule that when a party produces a witness in proof of his cause, he thereby represents him as worthy of belief, and the law will not permit the party calling him to afterward impeach his general reputation for truth nor impugn his credibility by general evidence tending to show him unworthy of belief, does not preclude the party from proving the truth of any particular fact by other competent testimony, though in direct contradiction of what such witness may have testified, and though the evidence may collaterally have the effect of showing that he was generally unworthy of belief.</p> <p>2. Same.—The rule which excludes all evidence tending to contradict the statements of a witness as to collateral matters, does not apply to any facts immediately and properly connected with the main subject of inquiry. The court is of opinion that the alleged statements made by the plaintiff to the witness can not be regarded as being upon a merely collateral inquiry.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. George H. Gardner, Judge, presiding.</p>

<p>1. Mortgage—Sale—Usury.—Where a usurious contract is secured by a mortgage, if a 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>2. Verbal agreement.—Where a conveyance was made subject to the deed of trust, and the purchaser expressly covenanted to pay the indebtedness secured thereby, and the amount of the incumbrance, provisionally at least, was deducted from the price, but it was claimed that there was an oral contemporaneous agreement, by which the purchaser was to endeavor to reduce the amount of the incumbrance by setting up the usury, and in case of success, to pay the grantor the amount of the reduction out of the purchase money retained by Mm. Held, that the rights of the parties must be controlled exclusively by the terms and covenants of the deed, the oral agreement being incompetent to contradict the terms of the written agreement.</p>

Hurray F. Tuley, Judge, presiding. The writ of error in this case brings up for review a decree in equity foreclosing a deed of trust.

John A. Jameson, Judge, presiding. This was a proceeding in chancery, under the statute, by Hards and O. B. Green against Sprague, plaintiff in error, and others, for a mechanic’s lien for work and materials done and furnished in the erection,by Sprague, of a building on the land descri.bed.in the petition of Hards, filed December 23, 1873, in which case said Green intervened.

<p>Ebbob to the Circuit Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.</p>

<p>Pleading—Entering default.—In an action at law, where a plea has been filed, unless it has been stricken from the files or otherwise disposed of, the court is powerless to enter the default of the defendant.</p>

Henry M. Shepard, Judge, presiding. This was a bill in equity, brought by George E. Jones against the Chester Oil Company, to restrain the defendant from prosecuting certain suits at law against the complainant.

Elliott Anthony, Judge, presiding. The appellees, Weber and Friedman, in January, 1885, having a ca sa., in their favor, against one J. B. Wolf, for a sum exceeding one hundred dollars, it was delivered to Hanehett, the appellant, as sheriff of Cook county, to be executed. The latter took Wolf under the writ and committed him to jail.

<p>1. Evidence—Principal and agent.—Where an agent from time to time renders to his principal reports and statements of the business of the agency and of the accounts between himself and his principal growing out of it, and such reports and statements are received and retained by the principal without objection, such facts are prima facie evidence of an implied admission on the part of the principal of their correctness.</p> <p>.2. Same.—Among merchants, an account rendered and not objected to within a reasonable time, becomes an account settled, and is conclusive between the parties, unless some fraud, mistake, omission or inaccuracy is shown.</p>

Thomas A. Moran, Judge, presiding. This was a bill in chancery, brought by Frank Cihak against Hynek Klekr and others, to restrain the defendants from vacating and closing up an alley running along and adjoining one side of a lot owned and occupied by the complainant.

<p>1. Practice—Forcible detainer—Confession.—When judgment is confessed in forcible detainer under power, etc., in a lease, and the defendant enters a motion to vacate said judgment and files therewith an affidavit, if such affidavit discloses a good defense in law to the plaintiff’s action, the motion should be granted, at least to the extent of giving the defendant an opportunity to interpose such defense.</p> <p>2. Landlord and tenant—Surrender.—The taking of a new lease hy parol is hy operation of law a surrender of the old one, although it be by deed, provided it be a good one, and pass an interest, according to the contract and intention of the parties.</p>

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

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

Thomas Moban, Judge, presiding. This was a bill brought in the court below, Oct. 11, 1880, by the appellee, Vaughan, against the appellant, Eaymond, as partner and trustee, for an accounting. There was a hearing upon pleadings, proofs and master’s report, resulting in a decree in favor of the former and against the latter, for the sum of $9,586.28, from which the latter appealed to this court.

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

<p>Error to the Superior Court of Cook county; the Hon-Elliott Anthony, Judge, presiding.</p>

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

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

<p>Landlord and tenant—Indorsement on order.—Plaintiff leased certain premises to defendant for one year at $25 per month, and being indebted to one DeWolf, drew an order on defendant requesting him to pay all of said twelve monthly installments to said DeWolf, which order defendant duly accepted. Defendant paid the installments to DeWolf for several months, and then vacated the premises, and refused to pay further rent. Plaintiff paid the balance remaining due to DeWolf, who indorsed the aforesaid order in blank and delivered it to plaintiff, and she brought suit against defendant for the balance of the rent due. Held, that an instruction that the giving of the order to DeWolf barred the plaintiff’s right to recover was erroneous.</p>

<p>1. Malicious Prosecution—Damages.—In an action for malicious prosecution where the actual damage to the plaintiff for the arrest and imprisonment are definitely shown, and the jury find for the plaintiff, but give only nominal damages, it is error in the court to deny a motion for a new trial.</p> <p>2. Jurisdiction,—It is within the province of an appellate court to revise and set aside a verdict for insufficient as well as for excessive damages; -</p>

Lorin C. Collins, Judge, presiding. This was a suit by Parker against Perm, to recover .for commissions earned and money paid by the former as commission merchant in the business of the latter, December 30,1882. Perm, who resided and did business in Cincinnati, Ohio, directed Parker, as commission merchant doing business on the Chicago Board ‘ of Trade, to sell for him 25,000 bushels of corn, to be delivered in January, and a like amount to he delivered in May, then next.

<p>1. Practice.—An affidavit entitled in the cause and sworn to before the clerk of the court in which the case is pending, should not be treated as a nullity because there was no formal venue.</p> <p>2. Same.—It is the policy of the statutes of this State to favor amendments of pleadings for the promotion of justice.</p> <p>8. Sale—Under power.—It is the settled doctrine of equity in this State that sales of land by a mortgagee or trustee under a power of sale without recourse to legal proceedings, will he zealously watched by courts of equity, and upon proof of the slightest fraud or unfair conduct, or a departure from the power, they will be instantly set aside.</p>

Sidney Smith, Judge, presiding. This was an action by appellee, Burkhardt, against appellant, Carpenter, to recover for work, labor and materials done and furnished by the former for the latter in the construction of a stone-front building. There was a trial, under the general issue, resulting in a verdict and judgment for plaintiff, in the sum of $135.75, and the defendant brings the record here for revision.

Mueray F. Tuley, Judge, presiding. This was a creditor’s hill, brought by appellee against appellants in the Cook county Circuit Court.

John Y. Eustace, Judge, presiding. This was a suit in assumpsit, brought by Oscar McKenney and George C. Loveland against ¡Noah Blough and Samuel Sheller, in the Circuit Court of Carroll county. The declaration counted upon two promissory notes, executed by the defendants to the plaintiffs, one for §300, dated March 17, 1877, and the other for §100, dated October 2, 1882.

<p>Practice—Creditor’s bill.—On a creditor’s bill filed, which waived answer under oath, answered by defendant not upon oath, and replication joined by complainant, it was error to dismiss for want of equity on defendant’s motion; as under section 25 of chapter 22 of the statute, entitled Chancery, the complainant was entitled to adduce testimony to contradict the answer and maintain the allegations of the bill.</p>

<p>Trover—Demand and refusal.—A demand and refusal are no evidence of a conversion unless the thing demanded was at the time in the possession of the defendant or under his control.</p>

<p>1. Exemptions—Traveling salesman not a “laborer or servant.’’—An employe, who is not- shown to have performed any services except as traveling salesman and book-keeper, .or services of that nature, does not come within the meaning of the words “ laborer or servant ” as used in the statute relating to exemptions.</p> <p>2. Statute—Construction.—Provisos and exceptions in statutes, by which their generality is qualified or restrained, or by which something is excluded from their general provisions, are to be strictly construed.</p> <p>3. Practice.—It is for the court at the time of rendering judgment, to determine whether the indebtedness for which judgment is being rendered is for the wages of a “ laborer "or servant,” and that question need he no part of the trial.</p>

Follín S. Williamson, Judge, presiding. Tliis is an attachment proceeding, brought by the city of Chicago against the schooner “ Queen City,” under the provisions of chapter 12 of the Fevised Statutes, entitled “Attachment of Water Craft.” The petition sets forth, in substance, that the city has a claim against the schooner Queen City for §336.33, for damages done to the Adams street viaduct and the stone abutment of Adams street bridge by said schooner, and also a like…

<p>Error to the County Court of Cook county; the Hon. Richard Prehdergast, Judge, presiding.</p>

<p>1. Master and servant.—In an action brought by an administratrix against an employer for damages, for 'negligence causing the death of the plaintiff’s intestate, the question of whether the relation he that of master and servant, so as to invoke an application of the rule of respondeat superior, is to he determined mainly by ascertaining from the contract of employment, whether the employer retained the power of directing and controlling the work, or has given it to the contractor. If the latter, the party undertaking to do the work is a contractor and not a servant.</p> <p>2. Damages—Excessive.—Damages for $5,000 held excessive for the death of a young laborer, aged nineteen years and eight months, whose wages were $1.75 per day, with a prospect of being increased to $2.00</p>

<p>1. Practice Act.—The 32d section of the Practice Act is not mandatory in such sense as to make the mere omission to file the copy of the instrument or account with the declaration, ground for dismissing the plaintiff’s suit.</p> <p>2. Practice—Motion made too late.—The plaintiff’s motion at the trial to strike from the files defendant’s pleas of set-off, because of his failure to comply with the statutory requirement to file with said pleas a copy of the instrument and account, comes too late after the plaintiff had replied in bar to defendant’s plea, and after the case had been twice previously tried in the court below and once heard in the Supreme Court,</p> <p>3. Verdict undisturbed.—The court can not say that the verdict is not supported by a preponderance of the evidence, nor that it is not in accordance with the merits of the case.</p>

<p>1. Guabdian and wabd—-Remedy on bond.—A guardian’s bond, given in the estate of three minors jointly, is enforceable at the suit of one of the minors for his individual interest, although one of the three had died between the time of the guardian’s appointment and the breach of the condition of the bond.</p> <p>2. Same—Negligence.—If a guardian neglects or fails to enforce the security on a loan of his ward’s money until the remedy is barred by the Statute of Limitations, his bondsmen are liable to the ward for such neglect.</p> <p>3. Statutes—Change affecting remedy.—W here the remedy is changed by statute, all rights of action are enforceable under the new procedure without regard to whether they accrued before or after such change in the law.</p>

Lorin C. Collins, Judge, presiding. This was an action by appellee, Davies, against the ap]7ellant corporation, to recover damages for the breach of an alleged contract, whereby the latter undertook to cause to he made for the former and to deliver to him at a certain building, which plaintiff, as contractor with one W. E. Bollo, was constructing, the doors, sash and blinds for such building.

<p>Waiver—Delivery.—The court is of opinion that plaintiff’s telegram to his broker, “ Do the best you can; whatever you do will be satisfactory,” was intended to and had the effect of a waiver of payment of the drafts and procurement of the bills of lading, as a condition precedent to the broker obtaining possession of the hay, and was an authority to defendant to deliver to such broker.</p>

Elliott Anthony, Judge, presiding. This was an action by appellee, Thomas, a resident of this county, against appellant, the Kalkaska Manufacturing Co., a corporation created by the laws of the State of Michigan, and having its factory and place of business in the northern part of that State.

Murray F. Tuley, Judge, presiding. This was a petition, brought by John Collins against John T. Major and others, for a mechanic’s lien, for materials furnished and work done by Collins, under a written agreement between him and Major, in the erection of five buildings on five different lots belonging to Major.

John Gf. Rogers, Judge, presiding. This was replevin, brought by appellee,- Davis, against appellants and others, to recover the possession of a Landau carriage. The case was tried by a jury, resulting in a verdict for the plaintiff against the defendants, Cummings and Marsh, the suit having been dismissed by the plaintiff as to the other defendants at the trial.

<p>1. Evidence—Insurance.—'Where, by the terms of apolicy of insurance, the insured was to use Ms best endeavors to save the property insured, in an action on the policy it was proper for Mm to testify as to what property he had in the store other than that covered by the policy of insurance.</p> <p>2. Evidence—-Agent’s report.—The report of an insurance company’s agent-, in which, in answer to the question contained in the application for insurance, as to incumbrances, the answer is “ no,” and the application is not signed by the insured, and was merely the report of the agent- to the company made subsequently to the time of the application, and not in the hearing or presence of the insured nor with his knowledge, does not bind the insured.</p> <p>3. Practice.—New trials will not be granted for slight errors in the giving or refusing of instructions where the verdict is clearly right.</p>

Joseph E. Gamy, Judge, presiding. This was assumpsit, by the appellant, Potter, against the six appellees jointly, to recover some twenty-eight hundred dollars upon a guaranty in writing alleged to have been made by the defendants, whereby they became sureties for one Sylvan and wife to one McLean, for the payment by them of all rents which might accrue in the future under a lease bearing date ,i uly 23, 1883, whereby said McLean leased certain premises to said Sylvan for…

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

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

<p>This case involves the construction of section 11 of the act in relation to limitations, chapter 88, R. S., and is affirmed to allow the case to go directly to the Supreme Court for decision.</p>

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

<p>1. Bilí, of exceptions.—-A recital at the close of a bill of exceptions that “ the foregoing constitutes the substance of all the evidence introduced by the parties on the trial of said cause,” is regarded as equivalent to a recital that it contains all the evidence.</p> <p>2. Evidence of habits of deceased.—Evidence of the habits of the deceased introduced in order to raise a presumption of the exercise of due care is admissible for that purpose only when nv one was°present or knew how the accident occurred.</p> <p>8. Impeachment of witness.—Where a document purporting to be a party’s evidence at the coroner’s inquest was offered as impeaching evidence and it was not materially in conflict with the evidence just given, and no proper foundation was laid for its introduction, it was properly rejected.</p> <p>4. Instructions—Negligence.—Before the rule of comparative negligence can have any application it must appear that the plaintiff exercised ordinary care and that the defendant was guilty of gross negligence.</p>

Richard Pbendebgast, Judge, presiding. This was assumpsit, brought to thé March term, 1885, of the court below, by appellee, Cornhauser, against appellants, Smentek and Reich,and one Jankowsky. The declaration contained the general common counts and one count upon a special promise to pay money; but no written instrument was set out or attempted to be described in either count.

Thomas A. Mohan, Judge, presiding. This was a hill in equity brought in the Circuit Court of Cook county, by appellants, heirs and legatees of John P. Hutchinson, deceased, against appellee, Ayres, and Maria U. Hutchinson and John Y. Thomas, praying for an accounting by them as executors and trustees of the estate of said John P. Hutchinson, and also praying for their removal as such trustees, etc. Hutchinson died testate, December 80, 1872, leaving a widow, the said Maria…

Erbob to the Criminal Court of Cook county; the Hon. William H. Barnum, Judge, presiding. Williams was indicted in the court below, and, under plea of not guilty, was tried and convicted and adjudged to pay a fine of fifty dollars for alleged violation of the act entitled “ An act to regulate the practice of medicine in the State of Illinois,” approved May 29, 1877. He brings the record to this court for revision.

<p>1. Corporation—Organization.—The act of recording the certifi cate with the recorder of the c otmty is the necessary and final act which gives to the organization its corporate life and endows it with its franchises and faculties. Until this is done, there is in fact no corporation in esse capable of doing business or contracting liabilities.</p> <p>2. Same—Liability op stockholders as partners—Estoppel.—A suit and judgment therein against an imperfectly organized corporation, as between the plaintiffs and defendant corporation, will operate as an estoppel to bar the same plaintiffs from recovering from the members of the corporation on their individual liability as partners in the same cause of action.</p>

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

George Gardner, Judge, presiding. This was a creditor’s bill, brought by various judgment creditors of Mark D. Shay against said Shay and others, to reach certain assets alleged to have been disposed of by said Shay in fraud of his creditors, and to subject the same to the payment of their judgments.

<p>Judgment in vacation—Appeal.—Where do judgment is entered in the court of a finding of the judge in vacation, there can be no appeal.</p>

D. M. Browning, Judge, presiding. In October, 1880, the Grange Mill. Company, of Cobden, Illinois, the plaintiff in error, sold its mill property to John T. Emison, one of the defendants in error, for §6,800.

<p>Amendment—Costs.—The amendment to the sheriff’s return obviates the error assigned, but as there was error in the record, until the amendment was made, all the costs in this court up to and including the date of filing the amended record will be taxed to defendants in error.</p>

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

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

<p>1. Practice—Demurrer waived.—Where a party flies a demurrer which is overruled, and he pleads without standing by his demurrer, the demurrer is waived, and the overruling thereof can not be urged as error on appeal.</p> <p>2. Justice’s transcript.—In suit in the county court on a recognizance, on which default has been made in justice court, a real estate transcript is not required from the justice.</p>

Louis; the Hon. William P. Laubtz, Judge, presiding. August 16,1883, John B. Grrimont filed bis bill in the court below, setting forth that one ¡Nicholas Spannagel had been indebted to him for fifteen years prior to filing his bill, and that on the 10th of August, the complainant had obtained a judgment upon such indebtedness against said ¡Nicholas; that execution, had issued thereon and been returned nulla bona, the judgment still remaining in full force.

<p>1. Waiver of objections.—When specific objections are made to testimony, none of which are tenable, other objections must be regarded as waived.</p> <p>2. Indorsement of note to firm.—The indorsement of a note by an individual to a firm of which he is a member, vests the legal title in the firm. The indorsement in such case is not of a moiety of the note nor is it an indorsement in which the indorser and indorsee are in any legal sense the same person.</p>

<p>1. Loss ov baggage—Liability oe carbier.—When a common carrier undertakes to transport baggage and has carried it to its destination, if it is not called for, the carrier must store it in a safe and secure warehouse.</p> <p>2. Same.—Where a passenger’s trunk was carried to its destination, and not being called for was placed over night by the carrier in the ladies’ waiting room, which was broken into and the contents of the trunk stolen. Held, that the passenger properly recovered against the carrier the value of the articles stolen. It was error, however, to allow $10 for a silk quilt. Such article was not baggage.</p>

<p>Error to the Circuit Court of Union county; the Hon. D. M. Browning, Judge, presiding.</p>

William 0. Jones, Judge, presiding. Trespass vi et armis for cutting and stabbing plaintiff with a knife, which was justified by defendant on the ground of self-defense. The cause was tried by a jury and a verdict returned of §100 for the plaintiff, upon which the court entered judgment and the defendant appeals.

<p>Error to the County Court of Jasper county; the Hon. J. W. Gibsor, Judge, presiding.</p>

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

<p>1. Instructions—False imprisonment.—The instruction upon false imprisonment is erroneous in that it omits the necessary qualification “that unless the restraint or detention was by virtue of a valid process or warrant against her issued by proper lawful authority.”</p> <p>2. Instructions—Malicious prosecution.—An instruction that the prosecution of a person criminally, with any other motive than that of bringing a guilty person to justice, is a malicious prosecution. Held, erroneous. To maintain such action there must he no probable cause and malice concurring.</p>

Clair county; the Hon. Wm. H. Snyder, Judge, presiding. The defendant in error commenced this action to recover for legal services performed by him for the city. It appears from the record that in May, 1877, the city was under a contract with the East St. Louis Gas Light and Coke Company, to furnish the city with gas at a stated price for the term of thirty years, a contract the city was very much dissatisfied with and was desirous of annulling.

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

D. M. Browning, Judge, presiding. The appellee here, and plaintiff below, claiming that appellants had employed him to teach their district school for five months, commencing Oct. 1, 1884, at §50 per month, and they having refused to permit him to enter upon the performance of the contract, brought this suit to recover for the entire time.

<p>Weight of evidence.—Where the evidence introduced by either party may be said to be sufficient to fully sustain a finding in his favor, after two trials in the court below, this court will not interfere on the ground that the finding is against the weight of evidence.</p>

<p>Cobpobatxou employing- lawybb.—As the consent of a majority of the directors was given to the employment of appellee by the president of appellant, the rule relied upon was not violated, even if it could be successfully-interposed against one having no notice of it.</p>

<p>1. Instructions—Negligence.—An instruction which requires the jury to find whether the negligence of the plaintiff was slight, and that of the defendant gross, hut does not require the jury to compare the negligence of the respective parties, and determine from such comparison whether the one is slight and the other gross, is erroneous.</p> <p>2. Questions for court and jury.—The definition of negligence is for the court. Whether the facts in a particular case bring it within the definition is for the jury.</p> <p>3. Highway—Cabe necessaey.—If the public generally use a road as a public highway by the consent of the owner of the premises, and this be known to the railroad company, the law demands of the company the exercise of all ordinary care to avoid injury’; and if the ringing of the bell or the sounding of the whistle would be considered reasonably necessary to be done to effect such purpose, the company should do so independent of the statute,, and can not rely upon the fact alone as a defense that it is not a legal highway.</p>

<p>Error to the Circuit Court of Fayette county; the Hon. Jessb J. Phillips, Judge, presiding.</p> <p>Hpon leave obtained, the State’s attorney of Fayette county, upon the relation of Benjamin F. Shipley, filed in the circuit court an information in the nature of a quo warranto, setting forth that the relator was, on Nov. 7, 1882, duly elected county superintendent of schools of said county, for the term of four years, and duly qualified and entered upon the duties of said office.</p> <p>That the defendant intruded into said office and for the period of one hundred and twenty days had unlawfully held and exercised the duties of said office, and still continues so to do without right or title thereto, and prays that he may show by what warrant he so acts. The defendant answered, asserting his right to the office by virtue of certain proceedings had by the board of supervisors of said county at their meeting in March, 1881, substantially as follows:</p> <p>Hankins, member of the board, after a preamble reciting that there had come to the ears of the members of the board of supervisors information that B. F. Shipley, county superintendcnt of schools, had scandalized his office by being found drunk, etc., introduced the following resolution :</p> <p>“ Be it resolved that this board appoint a committee of three of its members to investigate and report as to the facts of the intoxication of B. F. Shipley on various occasions, and also investigate questions as to legal power of the board of supervisors to remove him (Shipley) from his said office of county superintendent of schools, etc.” Resolution adopted.</p> <p>Chair appointed Hankins, Clark and Snerley, to act as such committee. Committee report back to board as follows: “Tour committee, to whom was referred the matter of examining into the legal grounds for the dismissal of B. F. Shipley from the office of superintendent of schools, and consult counsel, etc., would beg leave to submit the following report on the matter before them: That we have consulted Messrs.</p> <p>Henry and Farmer as to counsel, and have examined witnesses as to Mr. Shipley’s neglect of the duties of the office, and find from the evidence gained that he has at several different and sundry times been intoxicated when attending, or at the time he should have been attending, to the duties of his office. And it is the opinion of your committee that in consequence of intoxication he has at numerous times been guilty of neglect of the duties of his office, which fact we believe can be proven by competent evidence. All of-which is respectfully submitted.</p> <p>Geo. W. Hankins, Chairman.”</p> <p>On motion of Mr. Parks, ordered that report be adopted. Mr. Frailey introduced and moved the adoption of the following:</p> <p>“ Ordered by the board of supervisors of Fayette county, that Benjamin F. Shipley be and he is hereby removed from the office of superintendent of schools of Fayette county, for omission of duty, and said office is hereby declared vacant.” Motion carried by aye and nay vote.</p> <p>On motion, board of supervisors proceeded to elect by ballot a successor to Benjamin F. Shipley as superintendent of public schools of said county, and that the respondent, Jesse Mays, was then and there duly elected by said board of supervisors to fill said vacancy.</p> <p>The answer then avers that the defendant qualified hy giving bond and taking the oath of office, and was commissioned by the governor, and that he obtained possession of the books, papers, records, etc., belonging to the office, by an order of the circuit court of that county, entered in conformity with § 217 of the Criminal Code of the State. To the answer setting out these facts in extenso¡ the relator interposed a demurrer, which was overruled by the court, and the relator abiding, final judgment for costs went against him, and he caused the record to be removed into this court by writ of error.</p>

Clair county; the Hon. Amos Watts, Judge, presiding. This is an appeal from an order made by the Circuit Court of St. Clair county, at its February term, 1885, distributing the proceeds of attachment sales between attaching creditors. The stipulation filed by the parties upon the hearing of the motion to distribute, sets out the whole case substantially as follows: “ Edmund C. Donk et al. filed their affidavit in attachment against Ottomar W. Heyer, November 28, 1881.

<p>Error to the Circuit Court of Williamson county; the Hon. David J". Baker, Judge, presiding.</p>

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

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

<p>Appeal from the Circuit Court of Franklin county; the Hon. D. M. Browning, Judge, presiding.</p>

<p>Error to the County Court of Lawrence county ; the Hon. Philip W. Barnes, Judge, presiding.</p>

<p>1. Feaududent conveyance.—Where a debtor, who was in failing circumstances and unable to pay his debts, mortgaged and transferred possession of a stock of merchandise which he then thought worth $16,000 to $17,-000, together with accounts worth $2,000, (all of his available assets,) to creditors whose claim did not exceed $4,200, with power to sell and dispose of these assets, making no provision for paying out of the proceeds any debts due to his other creditors, and this was done with the intent to hinder and delay his other creditors in the collection of their debts, and appellants creditors, brought a suit in attachment against him. Held, that it was error in the court below, to find the issue for the defendant in attachment under the evidence introduced. ,</p> <p>2. Evidence.—Where the facts and circumstances in evidence show the transaction to be fraudulent as against creditors, declarations under oath that it was in good faith and without fraudulent intent avail but little.</p> <p>3. Rights of mortgagees.'—The rights of the mortgagees were not in issue and in the decision of the case were not passed on.</p>

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

<p>Special char ter—Liability oe stockholders.—Where the charter of a private bank provided that “whenever default shall be made in the payment of any debt or liability contracted by said corporation, the stockliolders shall be hold individually responsible for an amount equal to the amount of stock held by them respectively,” etc., in suit brought after failure of the bank, against a stockholder upon a certificate of deposit. Held, that the liability of the stockholders upon the contracts of the bank ivas coeval with that of the corporation, and that to the amount of their stock the stockholders were bound as partners by such contracts.</p>

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

<p>1. Burden of proof.—As the paper read in evidence was not a receipt, and the testimony intended to give it that character was contradicted by appellees, the burden of maintaining the defense interposed rested on appellant. As there is no error in the record the judgment is affirmed.</p>

<p>Instructions.—Instructions which inform the jury that certain facts as a matter of law constitute negligence and which are not based on the evidence are erroneous. As the instructions on negligence given in this case were obnoxious to such objections, the case is reversed.</p>

<p>Appeal from the City Court of Alton ; the Hon. A. IT. Gambrell, Judge, presiding.</p>

<p>Error to the Circuit Court of Pope county; the Hon. D. M. Browning, Judge, presiding.</p>

Clair county; the Hon. W. J. Hndejrwood, Judge, presiding. Appellees recovered a judgment in the Circuit Court of St. Clair county, against William Homeir and August Stocks for §257.50 and costs of suit, from which an appeal was taken to this court. The appeal was dismissed at the February term, 1885, of this court.

Clair county; the Hon. William H. Snyder, Judge, presiding. “ This is a bill in equity filed by Louis Fusze and Mathias Backer, as late partners, against Christian Stern, Mary A. Stern and ¡Nicholas Staub, defendants, the material averments being that complainants recovered a judgment in the St. Clair Circuit Court on the 18th day of April, 1885, against Frederick Backer and Christian Stern, late partners, for the sum of §33,050.79; that in said suit an attachment writ was…

<p>Appeal from the Circuit Court of Perry county; the Hon. Geobge W. Wall, Judge, presiding.</p>

Wm. C. Jones, Judge, presiding. On the 8th day of April, 1885, defendant in error filed her bill in the Circuit Court of Wabash county against the plaintiff in error for separate maintenance. In her bill she alleges that she was married to the defendant on the 18tli day of January, 1883 ; that she has one child, the fruit of said marriage.

<p>Evidence—Negligence.—As there is no proof of negligence on the part of appellant, the hole in question, into which appellee slipped, being necessary and proper for the management of appellant’s locomotive, and appellee being perfectly familiar with the entire situation and having taken the risk, the verdict for appellee can not he sustained.</p>

<p>1. Practice—Parties.—In a suit on a bond by the people for the use of H., guardian, etc., against appellant, judgment was rendered, but II. died before executionissued; it appearing that the estate of H. had no interest in the judgment, and that the ward had become of age, held, that although H. might have maintained the suit in his own name, and may have had the right to control the judgment during his lifetime and the minority of Ms ward, it does not follow that the judgment passed to his executor, and no court should require the empty form of making the executor a party to the proceedings to collect the judgment.</p> <p>2. Same—Remedy at law barred .—A court of equity having the power to declare an execution void or irregular and grant relief against it, and appellant having invoked that power, and the court of chancery having taken jurisdiction of his cause, he can not be allowed to now resort to a court of law for the same relief which he could then have obtained, if entitled to it, by presenting his claim.</p>

<p>Justice’s judgment.—The record presents only a certified transcript of a judgment of a justice of the peace, filed in the office of the clerk of the circuit court, together with the execution issued out of that office and the sheriff’s returns of his levy and sale. Held, that this court can not review such a judgment or the ministerial acts of clerks and sheriffs.</p>

<p>1. Variance—Time to make objection.—The court is of opinion that the variance between the declaration and the proof is not material, but if it were important, objection should have been made in the court below.</p> <p>2. Evidence—-Discretion op trial court.—Unless there is some special reason for it the trial courtis not bound to allow a mere repetition of questions.</p> <p>3. Instructions.—Where, in an action against a city for negligence, the main purpose of a certain instruction was with reference to the measure of damages, and the terms of such instruction referred the jury to the declaration where the allegation of due care was to be found, and other instructions abundantly presented the element of due care. Held, that such instruction was not erroneous.</p>

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

<p>1. Drainage—Easement.—Where tlie claim that a previous owner had established a system of drains upon the property now owned by others, and that having severed the heritage each subsequent owner took subject to the burden thus imposed, is sought to be established, the marks of the burden must be open and visible, and the easement must be apparent, necessary and continuous.</p> <p>2. Obstructing artificial drain.—In an action of trespass for the obstruction of certain artificial drains on the lower estate, where the natural flow of the water would be otherwise, and there was no right by prescription or contract, and no burden on the servient estate. Held, that the act of appellant in tiling and partly filling up the ditch, even if it produced the loss complained of, is a damnum absque injuria for which no action lies.</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 Sangamon county; the Hon. J. J. Phillips, Judge, presiding.</p>

<p>Election bet—Action qui tam.—Action on the case qui tam to recover treble the amount lost and paid on an election het under the provisions of R. S. Ch. 38, § 132, where the loser gave his note, which the winner discounted in bank, and it was not averred that the note was paid. Held, that the giving of the note was not payment, and since the loser could not sue for this reason, the suit can not be maintained by a third person.</p>

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

<p>1. Voluntary conveyance.—A voluntary conveyance for the benefit of the grantor, when it stands in the way of collecting a debt owed by the grantor at the time of the conveyance, may he set aside by bill in chancery, hut such a conveyance will not he set aside l'or the benefit of a subsequent creditor or to support a subsequent voluntary conveyance.</p> <p>2. Chancery.—Where there is equal equity, the court will not disturb the legal status of the contending parties.</p>

George W. Herdman, Judge, presiding. The appellant instituted an action of forcible entry and detainer in the Circuit Court of Calhoun county, by filing his complaint in writing, as follows: “ State of Illinois,) gg Calhoun county, j April term 1885—In the Circuit Court. Claus H. Martens 1 • , v. Forcible Entry and Detainer. Henry Fields and Wilhelmina Quilla.

Cyrus Eplee, Judge, presiding. On the 14th day of June, 1882, appellant, George Taylor, recovered a judgment against appellees for §6,282.87, in the Morgan Circuit Court. On the same day they prayed an appeal to the appellate court, which was alio wed on their entering into bond in the penalty of §7,000, with security to be approved by tlie clerk. Bond was to be filed in thirty days.

<p>Instruction.—An instruction that “ if the jury believe from the evidence that the appellants directly or indirectly employed appellee, the jury should find for appellee.’’ Held, that the instruction, under the circumstances of this case, was not erroneous.</p>

<p>1. Practice—Objection to evidence.—Where evidence was admitted without objection, it was not error in the court to refuse to grant a new trial on the ground that such evidence was improperly admitted.</p> <p>2. Practice.—Affidavits of jurors will not be heard to impeach their verdict on a motion for a new trial.</p>

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

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

<p>1. Mechanic’s lien.—The mere fact that the engineer attached the machine in question to the boiler, which was done without the knowledge or eqnsent of the owner, and was followed by an immediate disclaimer and detachment, would not make such an actual use of the machine in the mill as is required to constitute a mechanic's lien.</p> <p>2. Same.—Where a machine was bought and placed in the mill and an acceptance given therefor, the lien would attach. In a suit against the buyer for the purchase price, he would have the right to recoup any damages accruing to him on account of the machine failing to work as warranted.</p> <p>3. Acceptance.—The giving of the acceptances did not waive or release the lien, as there was no security upon them, and they were produced in court ready to he surrendered.</p> <p>4. Defenses available to purchaser’s grantee.—Any fact which would tend to destroy, in whole or in part, the purchaser’s liability, would be available to his grantee when called upon to discharge the lien.</p>

<p>Husband and wife.—When a married woman permits her husband to use and control her property she must see that his acts are within the poivers given him; and if she knows he has exceeded his authority in dealing with third parties, and the circumstances are such as good faith tothemwouldrequireherto speak, and she fails to do so, she will be as fully bound by his acts as though they were previously authorized.</p>

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

<p>1. Chattel mortgage—Priority.—A person taking a second mortgage upon property before the maturity of a prior one stands substantially in the same position as a purchaser and should he governed by the same principles.</p> <p>2. Same.—Where appellee had a first chattel mortgage on property and before its maturity appellants took a second one, and appellee delayed foreclosing his mortgage until several months after maturity, but before the maturity of appellants’ mortgage. Held that appellants could take no advantage of appellee’s delay in taking possession.</p>

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

<p>1. Subrogation.—While the right of subrogation does not arise by contract, such a right, like all other legal or equitable rights, may be qualified or extinguished by contract.</p> <p>2. Construction of contract.—The court is of opinion that the construction of the contract of assignment in this case is, that $5,000 of the money to be realized out of the judgment was to be paid to appellees when collected from the railroad company, and as the amount was paid at the time agreed appellees are not entitled to interest.</p>

<p>Attorney’s ebb—Amending account.—Where in an action for killing stock appellee did not claim attorney fees when he filed his account with the justice. Held, that it was proper to permit him on trial in the circuit court to amend his account and add such fees.</p>

<p>Conservator—Questioning appointment in collateral proceeding.—In a bill to foreclose a-mortgage alleged to have been made to appellee by a conservator of an insane person by virtue of an order of the county court, the defense sought to question the validity of the appointment of the conservator, alleging that the jury which found the party non compos mentis was composed of but six men, and therefore the appointment, was void. Held, that the county court, having acquired jurisdiction over the subject-matter and the person, its proceedings can not be attacked in this collateral proceeding.</p>

O. T. Reeves, Judge, presiding. In 1882, appellant (defendant below) was engaged in building a railroad from Kankakee to Bloomington, which was to pass through appellee’s farm. July 10th of that year appellant and appellee entered into a contract relative to the right of way through the farm, whereby appellee agreed to convey a strip of land one hundred feet wide through his farm.

<p>1. Banks—Action by depositor against directors’negligence.— An action on the case by a depositor against the directors of a bank for gross negligence in allowing an insolvent bank to advertise and continue to do business, where the slightest examination of the bank’s affairs by the directors would have disclosed the fact that the bank was utterly insolvent. Held, that such action will lie.</p> <p>2. Duties oe directors.—Directors are not merely agents, but are, as well, trustees for the bank, the stockholders and the depositors, and to each they owe duties for a violation of which the law will hold them liable.</p>

<p>Usury.-—Brokers negotiating loans of other people’s money may charge the borrower commissions without thereby making the loan at the full rate of legal interest usurious, where there is no arrangement with the lender that commissions shall be charged by the agent.</p>

C. P. G-aknsey, Judge, presiding. This was a suit commenced by appellee against appellant, before a justice of the peace, on March 25, 1884, in an action of forcible detainer, to recover the possession of a cert tin farm described in the complaint.

Eeeoe to the County Court of Stephenson county; the Hon. H. 0. Hyde, Judge, presiding. The suit was commenced in assumpsit in the county court. The declaration consists of two special counts upon an indorsed promissory note and the consolidated common counts. The two counts of the declaration declaring the promissory note not demurred to by appellee, who craved oyer of the note which was shown to him in words as follows: “ Rock Run Tp., Stephenson Co., Ill., May 19, 1884.

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

<p>1. Administration—Monument.—The erection of a suitable headstone at the grave of a deceased person may properly be considered as a part of his personal expenses. Where the rights of creditors are not defeated or jeopardized, and the sum expended for that purpose by the administrator or executor is not extravagant but reasonable, in view of the station in life of the deceased and the value of the estate left by him, such amount should be allowed as a credit on settlement of the administration.</p> <p>2. Accord.—Where an accord is relied on it must be executed.</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 Iroquois county; the Hon. Franklin Blades, Judge, presiding.</p>

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

<p>1. Vendor and vendee—Possession of property.—When there is a sale of personal property by a debtor, there must be a delivery and change of possession before the purchaser can acquire title as against creditors of the vendor, and this rule applies even where the sale is made in good faith and for an adequate consideration.</p> <p>2. Delivery.—The delivery may be actual or constructive; but it must be substantial and not a mere formal and temporary change of possession.</p>

<p>Pleading.—Where the performance of the defendant’s contract depends on some act to be done or forborne by the plaintiff, or on some other event, the plaintiff must aver the fulfillment of such condition precedent, whether it is in the affirmative or negative, or tobe performed by plaintiff or defendant or any other person, or' plaintiff must show some excuse for non-performancr</p>

<p>Error to the Circuit Court of Rock Island county; the Hon. J. J. Glenn, Judge, presiding.</p>

<p>1. Injury on sidewalk.—One may go upon a sidewalk known to be out of repair and dangerous, and if injured may have a right of recovery if ordinary and reasonable care is used.</p> <p>2. Damages.—A judgment for $2,000 damages for injuries caused by a fall on a defective sidewalk, causing a miscarriage. Held, that the damages are not excessive.</p>

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

¡N. M. Laws, Judge, presiding. This is a hill in chancery, alleging that the complainant, on the 28th February, 1879, was the owner in fee of a parcel of land in controversy being the Y made of the junction of the lines of the two railroads and the track connecting them, except the right of way of the two railroads passing through it.

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

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

<p>Bastardy—Death op mother.—In an action brought under the Bastardy Act, it is error to dismiss the suit on account of the death of the prosecuting witness.</p>

D. McCulloch, Judge, presiding. This was an action of debt, brought on the justice of the peace bond of appellee Hamilton, the other appellees being security on the bond. Among the requirements of the bond was that the principal was “ well and truly to perform all and every act and duty enjoined on him by the laws of the State to the best of his skill and abilities.” The declaration shows that on the 17tli of August, 1882.

<p>Appeal from the Circuit Court of Grundy county; the lion. J. McRobeets, Judge, presiding.</p>

<p>Pbivilege—Attendance on genebal assembly.—Where an affidavit alleged that the attorney for the defendant was a member of the general assembly, and that the assembly was to he in session on and after January 7, 1885 (the application being made January 5, 1885), and that the affiant would at the time of the application for continuance be in actual attendance, etc. Held, that such affidavit is not sufficient. The affidavit was not made during the session and the attorney was not in actual attendance on the general assembly.</p>

<p>Breach of contract of marriage—Instructions.—Instructions that ‘ ‘ a mutual engagement may be inferred from constant and devoted attentions gladly welcomed, from reciprocal affection and the interchange of letters expressive of earnest love,” and that “ evidence of her preparation of marriage and her carrying herself as consenting to and approving Ills promise, if such evidence has been introduced, would be sufficient to establish a contract of marriage between the parties." Held, that the court usurped the province of the jury by telling them what would be sufficient evidence, speed" fyin'g a few circumstances, some of which were not in evidence, and telling them that such circumstances were alone sufficient to establish the existence of the contract.</p>

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

<p>1. Attachment—Corporation de facto—Estopped.—A suit in attachment was commenced by appellant, a corporation in Ohio, against appellee. There was no question as to the indebtedness, but appellee filed the plea of nul fiel corporation. Appellant- offered in evidence the statute law of Ohio, which provided for such corporations as the appellant, and user was abundantly shown. Appellee had given notes to the appellant by its corporate name. Held, that appellee can not, under the circumstances, question appellant’s corporate, existence.</p> <p>2. Presumption as to law remaining in force.—Where a law is shown to have been passed in 1852, it will be presumed that it remained in force until 1855, when the organization of the corporation in question under the statute is claimed to have taken place, and it will he presumed that it is still in force until the repeal is shown.</p> <p>8. Corporation de facto—How shown.—Two things are necessary to be shown in order to establish the existence of a corporation de facto; the existence óf a charter or some law under which a corporation with the powers assumed might lawfully he created, and user by the party to the suit of the rights claimed to he conferred by such charter or law.</p>

<p>1. Unliquidated damages.—Where the claim or demand for unliquidated damages relates to the transaction out of which the controversy has grown, it forms a proper subject-matter of set-off or affirmative recovery by way of cross-action.</p> <p>2. Pleading.—In such case, unless a plea of set-off is interposed or notice given under the general issue or plea of payment, there can not be in the absence of a stipulation, a recovery by a defendant for an excess of indebtedness in his favor, but he may even then, under the general issue, recoup to the full extent of the plaintiff’s damages without’ such plea or notice 'or stipulation.</p> <p>3. Damages.—Sale of diseased sheep.—Where a vendor at the time he sold certain sheep did not know that they were diseased, and had no notice or knowledge that they were to be placed where they would come in contact with cattle, it was error to instruct that the vendee could recoup for. the loss of the cattle.1 Such damages were not reasonably within the contempla^ tion of the parties.t</p>

<p>1. Discretion of court.—Re-instating cause.—An appellate court will not interfere where the court below has refused a motion to set aside an order of dismissal and re-instate a cause unless there has been a palpable abuse of the court’s discretion resulting in substantial injury.</p> <p>2. Affidavit.—An affidavit, in such case which shows negligence on the part of the appellant, and states that there is a full and complete defense to the suit but does not show by facts stated that there is a meritorious defense, is insufficient.</p>

<p>Appeal from the Circuit Court of Will county; the Hen, Chas. B. Blanchard, Judge, presiding.</p>

A. A. Smith,'Judge, presiding. On the 27th day of July, 1881, appellee, in copartnership with Dunn and Harvey, shipped five cars of cattle from Aledo to Chicago on appellant’s road, and by the terms of the contract of shipment, appellee received a pass or permit to accompany the stock on the same train, to take care of it, which he did, taking his son with him also for that purpose.

<p>1. Evidence.—Deceased witness.—A witness who was present at a former trial and heard the testimony of a witness since deceased, and could give the substance of such deceased witness’ testimony on such former trial but not the exact language. Held a competent witness to state what the testimony of such deceased witness was on the former trial.</p> <p>2. Same.—Stenographer's notes.—The notes of a stenographer taken contemporaneously with the testimony in a previous trial, if he can testify positively as to their accuracy, may be put in evidence to prove the testimony of a deceased witness.</p> <p>3. Common carrier.—Damages.—It is the well settled law of this country that a common carrier cannot by contract stipulate for complete immunity against his gross negligence; as to the right to stipulate for a partial exemption from his full liability, qumre; authorities cited pro and con.</p> <p>4. Same.—Agreed basis op damages.—But whether or not a common carrier has such right, there is nothing unreasonable or against public policy in an agreement entered into between the shipper and the carrier at the time of shipment fixing the value of the animal at the time and place of shipment as the basis upon which the damages are to be computed.</p>

<p>1. ' Injury to .chops;—In an action to recover damages against a railroad company for hindering a party from cultivating portions of his farm, and for injury to and destruction of his growing crops by the flooding of his lands occasioned by a diversion of the water from an ancient water course, for the lands he is prevented from tilling he is entitled to recover the rental value.</p> <p>2. Same—Damages.—For the lands where the crop is not up, the damage should he estimated upon the basis of the rental value and the costs of seed and labor in breaking up and planting or sowing. Where the crop is up, or more or less matured, the party may recover in addition to the above, the Cost of any labor bestowed after the planting or sowing; or at his option he may recover the value of the crops, at, the time of its destruction, with the right to the purchaser to mature the crop and harvest or gather it. Where the crop is injured but not destroyed, the assessment should be commensurate with the depreciation in value.</p>

George W. Stipp, Judge, presiding. On the 17th day of April, 1882, a contract was made between the appellant and appellee, that appellee should deliver to the appellant forty bushels of corn, and should receive from the appellant sixty bushels of oats in exchange therefor.