Volume 18 — Illinois Appellate Court Reports

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

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

<p>1. Husband and ■wine—Conveyance.—The court is of opinion that the conveyance of the husband, who was in failing circumstances, to his wife, of the land in question, was based upon a sufficient consideration, as it was in return for money she had loaned him, and that the consideration bore a reasonable proportion to the value of the property conveyed.</p> <p>2. Injunction—Damages.—Upon dissolution of an injunction it is error to allow damages for solicitor’s fees where there is-no evidence of the value or rendition of any services having distinct reference to the dissolution of the injunction.</p>

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

<p>Statute oe Limitations.—In case of money collected by an agent, the Statute of Limitations begins to run from the receipt of the money. Fraudulent concealment to take a case out of the Statute of Limitations must lie founded upon some affirmative act; mere silence is not enough. The court is of opinion that appellant did not use reasonable diligence to discover his cause of action before it was barred by the statute.</p>

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

<p>1. Release—Joint tort.—In case of a collision of trains of two railroad companies where plaintiff was injured and had a right of action against either company. Held, that whether he could have maintained a joint action or not, a release to one discharged both.</p> <p>2. Pleading.—Where special pleas to which a demurrer was overruled and which remained unanswered presented a bar to the whole action and would, if sustained by the evidence, have defeated a recovery, it can not be assigned for error that the court rendered judgment for defendant with plea of general issue on file.</p>

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

<p>Assignment—Jurisdiction.—Where parties execute a voluntary assignment and the assignee takes possession ot the property, and under an order of the county court sells it and reports the proceeds to the court, complainants, who have proved their claims before the assignee, as required by law, can not file a bill in equity to investigate the good faith and validity of prior judgments. The jurisdiction of the whole subject is in the county court.</p>

<p>Telegbaph company—Delay in delivebing dispatch.—An action on the case against appellant, a telegraph company, for damages for delay , in delivering a dispatch. Held, that as appellant, through its agent, had full notice of the importance of the prompt, delivery of the dispatch, appellee can recover the damages he lost by its negligence, viz., the difference between the year’s salary he would have received from the party he had contracted with, and for whom he would have worked had he received the telegram in time, and what he made during the year.</p>

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

<p>Practice.—A case under an agreed statement of facts under § 75 of chapter 110 of B. S., where the clerk certified only the certificate of counsel and “the final decision of the case.” Held, that the transcript is fatally defective, in that it does not contain any certificate of the decision of the court below upon the questions of law stated in the stipulation.</p>

<p>Appeal from the Circuit Court of Morgan count}'; the Hon. Cyrus Eplee, Judge, presiding.</p>

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

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

<p>1. Recognizance—Second tjndeb prior order.—Where a defendant in a criminal proceeding is held over for trial to the next term of court and under that order enters into recognizance with sureties to appear, and on failure to appear such recognizance is declared forfeited and is paid and satisfied by the sureties, the order of court is not exhausted, and on the defendant coming into the sheriff’s possession subsequently, a second recognizance taken by the sheriff under the same order and in the same amount of bail will be valid.</p> <p>2. Practice.—The objection that a sci.fa. issued against principal and sureties shows no return as to the principal, is made too late in this court; it should have been made in the trial court below.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. "W. E. Welch, Judge, presiding.</p>

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

<p>1. Slander.—In a case of slander the words charged were “ Yon had better go to Tom McWade and pay him back the $20 you got from Km by false pretenses.” Held, that the words imply malice.</p> <p>2. Instructions—Pleadings and proofs.—Where defendant did not show any circumstances tending to rebut the implication of malice but merely testified that the words used were different from those laid in the declaration, and this upon the pleadings and proof was the only issue for the jury to try, the defendant can not complain that the instructions did not submit the question of malice.</p>

<p>Road law—Injunction.—Where a petition was presented to highway commissioners, predecessors of appellees, for a new road, and they decided to grant the prayer of the petition, and complainant’s damages were assessed at $76, the other owners releasing their claims, and the verdict was entered upon the justice’s docket and no appeal was taken, but the commissioners, learning that the parties relied on declined to pay the damages, refused to proceed further except to file all the papers in the town clerk’s office; and subsequently a second petition was presented to appellees for a road, identical with the other, and they decided to grant the prayer of the petition, and presented their certificate that they were about to establish the road therein described, to a justice of the peace who issued a summons to complainant to appear before him to prove damages, etc; complainant thereupon filed a bill to perpetually enjoin appellees from taking other or further steps to open or lay out the road. Held, that this is no case for an interposition of a court of chancery.</p>

<p>1. Judgment by confession in vacation.—The entering of judgment in vacation by confession is a statutory proceeding in derogation of the common law by a merely ministerial officer and the clerk is authorized to act only in cases affirmatively appearing to be within the statute.</p> <p>2. Same—Proof of execution of power.—In case of confession of judgment by an attorney in vacation it is essential not only that proof of ' the execution of the power of attorney be made but that it be made by affidavit. Without proof of its execution no jurisdiction is obtained of the person of the defendant and the judgment is absolutely void and may be impeached collaterally by any person sought to be affected by it. An execution on such judgment is void.</p>

<p>Sale by bailee—Estoppel.—Almost every bailee or agent in possession is, by his possession, enabled to hold himself forth to the world as owner, but unless the real owner so holds him forth or consents that he may so hold himself, it will not avail the innocent, purchaser from such bailee or agent as against the real owner.</p>

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

<p>Appeal from the Circuit Court of Logan county.</p>

<p>1. Doty of employer in providing safe machinery.—An employer is required to exercise reasonable and ordinary care in providing suitable and safe machinery for persons in his service, but the machinery is not required to be the best or most improved kind, or to he absolutely safe.</p> <p>2. Same.—An action to recover damages for the death of a switchman caused as alleged by the negligence of the railroad company in not putting the rails further apart, and in not blocking the switch. Held, that as the evidence shows the construction to have been that ordinarily used and to have been reasonably safe, no recovery can be had.</p> <p>3. Where defects known to servant.—Where defects in machinery or other appliances are as well known to the servant as to the master, the servant must be regarded as voluntarily incurring the risks resulting from its use unless the master, by urging upon the servant or coercing him into danger, or in some other way, directly contributes to the injury.</p>

Gary, Judge, presiding. This was a petition for mandamus to compel the Chicago West Division Bail way Company to extend its Ogden avenue horse car line from Douglas Bark to the city limits, at Lawndale.

<p>Appeal from the Superior Court of Cook county; the Hon. Bolles S. Williamson, Judge, presiding.</p> <p>This was assumpsit by appellee against appellant and others to recover the price of certain lumber alleged by appellee to have been sold by it to appellants, and shipped by their direction to one Pratt, at Aberdeen, Dakota. In support of its cause of action appellee offered in evidence at the trial the deposition of one Olson, which the court against the objection and exception of the defendants admitted in evidence, except certain portions previously stricken out on a motion to suppress. Attached to the part of the deposition admitted in evidence, and read as a portion thereof, were two telegraphic messages, purporting to have been sent by the defendants to the Beaver Lake Lumber Co., as follows:</p> <p>“Minneapolis, June 26, 3 883.</p> <p>To B. L. L. Co.—Is duplicate of Groobston order ready for shipment? Answer by wire at once.</p> <p>Chisholm Beos. &.Gunn.”</p> <p>The second message was as follows:</p> <p>“Minneapolis, Minn., 26.</p> <p>To Beaver Lake Lumber Co.—Ship lumber to S. S. Pratt, Aberdeen, Dakota, and give us car number at once.</p> <p>Chisholm Beos. & Gunn.”</p> <p>The telegrams were not the originals left with the office from which they were sent, but were .copies taken by the operators in the office to which they were transmitted. Appellant testified that he did not send them or either of them and knew nothing about them, and he offered to testify that there was no record of the telegrams on the books of Chisholm Brothers & Gunn, which offer was refused.</p> <p>The other facts sufficiently appear in the opinion of the court.</p> <p>There was a verdict and judgment for the plaintiff for $359.23, from which the defendant, its motion for a new trial being overruled, appealed to this court.</p>

<p>1. Agency—Election.—Whether there is an election not to charge the principal is a question of fact which is not determined by charging the agent after knowledge of the principal. Merely commencing a suit against the agent does not operate as an election which discharges the principal.</p> <p>2. Chancery practice.—If, at the hearing, the plea is not found to be true, it will he overruled as false and the complainant will be entitled to a decree as on a bill taken as confessed.</p>

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

<p>Ratification.—Where certain money was wrongfully paid out. by a bank toB, and A, to whom the money belonged, sued the bank for it, and B had paid out for A or on his order divers sums of money. Held, that the application by the jury in reduction of A’s demand óf the moneys paid out by B on A’s account did not amount to an affirmance or ratification of the unauthorized act of B in drawing A’s money from the bank.</p>

<p>Evidence—Inspection op books.—If it be assumed that the statute in relation to the production of books and writings authorizes the court to compel the production of books or writings prior to the trial, for the mere purpose of allowing them to be inspected by the parties, it is a matter left to the sound discretion of the court, and such power should never be exercised so as needlessly to expose the'private affairs of those in whose custody the books' or writings may be. It is proper to seal up that part of the writings relating to private affairs not connected with the matter in issue.</p>

Joseph E. Gary, Judge, presiding. Appellants sued out a writ of attachment against appellee, Brooks, October 9, 1884, and on the same day the writ was served on Benjamin B. De Young and John Farnon, as garnishees. The garnishees answered that they held in their hands $1,258.88, balance of proceeds of sale of certain lands belonging to Brooks and the heirs of one Hiller, previously made by them as the agent for the owners.

Thomas A. Moran, Judge, presiding. This was a bill in chancery, brought by Levi Z. Leiter against Marshall Field, to restrain the defendant from encroaching upon premises of the complainant, in constructing the foundations of a party wall between said premises and the adjoining premises of the defendant.

George Gardner, Judge, presiding. This was a petition filed by appellant in a creditor’s suit pending in the Superior Court of Cook county, in which II.

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

Murray F. Tuley, Judge, presiding. This was a hill in equity by plaintiffs in error against defendants in error to restrain the latter from erecting a certain building on their own premises, upon the corner of Monroe and Laflin streets, in the city of Chicago, so as to transcend a certain building line along said Monroe street said to have been irrevocably fixed by an original plat or plan duly made by the owner, who laid out the subdivision.

<p>1. Agency—Principal tracing property.—So long as money or property belonging to the principal or the proceeds thereof may be traced and distinguished in the hands of the agent or his representatives or assigns, the principal is entitled to recover it, unless it has been transferred for value without notice.</p> <p>2. Same.—The proceeds of plaintiff’s property were deposited by his agents with the defendant bank for transmission to the Henry Bank for the use of plaintiff (such fact appearing on the ticket accompanying the deposit) and the defendant bank transferred these funds to the Northwestern Bank for transmission to the Henry Bank, withholding all indications of the trust character impressed upon such funds. The Henry Bank failing the Northwestern Bank applied such funds to its indebtedness against the Henry Bank. Plaintiff brings an action for money had and received against defendant bank. Held, that the defendant bank is liable.</p> <p>3. Pleading.—Privity of contract between defendant and plaintiff is not indispensable to a recovery in this action for money had and received.</p>

Richard Prendergast, Judge, presiding. This was assumpsit brought hy William P. Whelan against Rudolph Brand. The declaration consists simply of the common money counts.

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

Elliott Anthony, Judge, presiding. This action was brought by appellee as administrator of J olm A. Benson, deceased, against the appellant corporation, to recover damages for causing the death of the intestate, as it is claimed by the negligence of appellants, its agents and servants.

Elliott Anthony, Judge, presiding. This was replevin in the cepit and detinet, brought February 7, 1883, by appellees, Chickering & Sons, against Pelton, Pomeroy & Cross, and also against appellant Bastress, an execution creditor of the latter, and Hanchett, the sheriff, for seventeen Chickering pianos. Pelton, Pomeroy & Cross, making no defense, were defaulted.

<p>Action foe deceit.—Where evidence fairly tends to show a cause of action, it is error for the court to instruct the jury to find for the defendai... The court is of opinion that the evidence in this case fairly tended, to show cause for an action on the case for deceit, and it was error not to submit it to a jury.</p>

<p>1. Chattel mortgage—Attachment.—Where a chattel mortgage is executed, but not recorded, and the mortgagee takes possession under his mortgage, the property covered by the mortgage would not be subject to a writ of attachment.</p> <p>2. Delivery.—Where goods were locked up in a storeroom at. the time that a chattel mortgage upon them was made. Held, that the delivery by the mortgagor to the mortgagee of the key to the room and the latter putting a new lock upon the door, locking it and keeping the key in his own sole possession, were facts suEcient to justify the jury in finding that there was a change of possession of the goods from the mortgagor to the mortgagee.</p>

<p>1. Warranty or representation.—In a fire insurance policy a stipulation should be held to be a representation rather than a warranty, when from the ambiguity of the language or otherwise there is room for doubt.</p> <p>2. Over-valuation—Matter of opinion.—Where the application for insurance was made a part o£ the policy and it was insisted that a false representation as to the value of the property avoided the policy. Held, that the court below properly found that defendant failed to prove an over-valuation. Estimates as to the value of property are ordinarily not statements of fact but mere matters of opinion upon which different persons may differ widely and the same person may differ at different times.</p>

<p>Practice—Verdict result op prejudice or passior.—Courts are reluctant to disturb the findings of juries upon mere questions of fact, but where the verdict is so manifestly contrary to the evidence as to show that it must have been the result of passion, prejudice, or undue sympathy, it is the duty of courts to reverse such judgment.</p>

Sidney Smith, Judge, presiding. This is an appeal from a judgment of the Criminal Court of Cook county, imposing a fine of $50 upon appellant for an alleged violation of an ordinance of the village of Des Plaines, in relation to picnics and open air dances.

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

Elliott Anthony, Judge, presiding. This was an action on the case brought by appellant against appellee to recover damages under the statute, for the killing of her husband. The declaration containod two counts.

<p>Appeal from 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. Joseph E. Gary, Judge, presiding.</p>

Hollín S. Williamson, Judge, presiding. This was an action of case under the statute, brought by the administrators of Joseph E. Rood, deceased, the appellees, against the village of Lemont, appellant, to recover for the pecuniary loss to the widow and next of kin of deceased, resulting from his death, which was occasioned, as it is alleged, by the negligence of the village, in causing an excavation to be made in one of its streets, and suffering the same to remain at night…

<p>1. Contract.—A contract between parties, one condition of which was that the goods were to be furnished and delivered at once, and there was an express provision that if they were not furnished and delivered within the time contemplated the defendants might return to plaintiff's the goods not delivered within such time. Held that no time being specified within which such return should be made the law would imply that it should be done within such time as was reasonable in view of all circumstances.</p> <p>2. Same.—A portion of the goods not. being sent on time, defendant returned to plaintiffs such goods within a reasonable time, as disclosed by the evidence, and plaintiffs refused to receive the goods from the carrier and now bring indebitatus assumpsit against defendants for goods sold and delivered. Held that plaintiffs had no option to refuse the goods when returned and that they have no right to recover the price of them in this action; the doctrine that if the buyer would rescind an entire contract he must rescind in toto does not apply to this case as the return is in pursuance of an express provision of the contract. Defendants would be liable only upon a quantum valebant for the goods received and used.</p>

This action was case brought by Farwell & Co. against Flower, to recover damages for fraud and deceit in the purchase by the latter of certain.hills of goods, of the former. The first count of the declaration alleges a pretended purchase by defendant of plaintiffs of said goods, with the fraudulent design on defendant’s part of not paying for said goods, and of cheating and defrauding pla.intiffs out of the same.

lion. Sidney Smith, Judge, presiding. This was an action of assumpsit, brought by George G. Fortier and Eustace F. Bucke, co-partners under the name of Fortier & Bucke, against the Pennsylvania Company, as a common carrier, for the breach of two contracts, one for the transportation of fifty-two barrels and the other of sixty-four barrels of carbon oil, from Cleveland, Ohio, to Brandon, Manitoba. The first consignment was shipped May 5, and the other July 31, 1882.

Henry M. Shepard, Judge, presiding. The report of this case upon the former appeal contains a sufficient statement of the pleadings as they then stood, and of the facts as they then appeared from the record. Booth v. Smith, 15 Bradwell, 91.

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

<p>Appeal from the County Court of Cook county; the Hon. Richard Prekdeiigast, Judge, presiding.</p>

Sidney Smith, Judge, presiding. This was debt upon an appeal bond brought by Edward T. Stelle, for the use of William H. Sisson against George T. Lovejoy, impleaded with Hebron Clafiin. Breaches were assigned, to which several pleas were pleaded.

I-orin C. Collins, Judge, presiding. This was an appeal by the plaintiff below from the judgment of the court in sustaining the defendants’ demurrer to his declaration in substance as follows: Declaration in an action on the case filed February 3, 1885, states that on December 27, 1884, plaintiff Eothschild, in the ordinary course of business, had bought of defendant, Otto Meyer, certain dry goods, amounting in value to $8,324, for which plaintiff had not.paid, and plaintiff…

Sidney Smith, Judge, presiding. This was an action under the statute brought .by appellees as administrators of Louis P. McBride, deceased, against the appellant, to recover for the benefit of the next of kin of deceased, such damages as they had sustained by reason of bis death, which was occasioned ¡November 18, 1880, near South Englewood, this county, as it was alleged, by the negligence of appellant in the management of its trains.

Murray F. Tuley, Judge, presiding. On the 10th day of February, 1868, Lucy J. Davis executed a lease in writing, by which she demised to William and Charles Hopkinson, lot 1, block 3, fractional section addition to Chicago, for the term of twenty years from May 1, 1868.

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

Elliott Anthony, Judge, presiding. This was an action on the case brought by appellee against the city of Chicago to recover damages for a personal injury to appellee occasioned by reason of the alleged negligence of the city in suffering a portion of the sidewalk on West Indiana street in said city to he out of repair.

John GL Rogers, Judge, presiding. One Weiderman, sued out of justice’s court, June 19, 1883, a writ of replevin against Albertson & Broad, for a horse, harness and wagon. The plaintiff in such writ giving replevin bond to the constable, the latter took the goods under the writ and delivered the same to the plaintiff in the suit.

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

Joseph E: Gaby, Judge, presiding. This was a suit by appellee against appellants, to recover for services and expenses by the former, while acting as agent and traveling salesman for the latter in the sale, of a certain stove polish, of which the defendants were manufacturers, in the State of Maine. There was a trial by jury, term!Bating in a verdict and judgment for plaintiff, in the sum of §340.66, from, which defendants took this appeal.

<p>Landlord and Ten ant---Trespass—Pleading.—An action of trespass brought against a landlord by .a tenant for breaking and entering the demised premises and raising the building, whereby the tenant’s walls were cracked, etc.; the landlord filed a plea of not guilty. Held, proper to disallow the justification, to-wit: that the building was unsafe and the work was simply done to strengthen it. Such justification should have been specially pleaded and evidence of the justification is admissible only in mitigation of damages.</p>

<p>1. Action nor injury resulting in death.—At common law no action can be maintained for an injury resulting in death, but the. right to maintain such action, where it exists, is purely a matter of statutory creation.</p> <p>2. Injury occurring in another State.—As the injury resulting in death complained of occurred in Indiana, and no proof was made of the law's of such State, it will be presumed the common law is in force there, and the case decided accordingly.</p>

Henry M. Shepard, Judge, presiding. This was a bill in chancery, filed by appellee, the wife, against appellant, January 24, 1885, for a divorce upon the grounds of extreme and repeated cruelty and adultery on the part of defendant, the husband. The bill was not supported by the oath of the complainant and expressly waived the oath of defendant to the answer.

<p>Chancery—Appeal—Estoppel.—Where a decree of divorce was entered-at the January term, from which no appeal was taken, but the court reserved for future consideration the subjects of alimony and the custody of the children, and at the next succeeding term the parties appeared before the court and the court made a decretal order-regarding alimony and the custody of the children, from which order an appeal, was taken. Held, that the decree of divorce, as entered at the January term, was such a final decree as that an appeal from it, if taken at that term, would lie. No appeal having been taken, the defendant is conclusively estopped by the original decree from- alleging adultery on the part' of his wife,- and his own innocence of extreme and repeated cruelty.</p>

John G. Bog-ebs, Judge, presiding. This action was case, brought by appellee, Wright, against the appellant telegraph company, to recover damages alleged to have been sustained by the former, by reason of negligence of the latter, in transmitting, Hay 31,1883, a certain telegraph message, which was given by the agents of the plaintiff to an agent of the defendant at its office at the Union Stock Yards, near the city of Chicago, to be sent to the plaintiff at a place called…

T. A. Mohan, Judge, presiding. This was a bill in chancery brought' by Jesse Spaulding to rescind certain sales of lumber made by him to the firm of… Held: but giving them no other or further information in relation to the purposes of Hair & Odiorne in the premises. The creditors to whom said notes were delivered caused judgments to be immediately entered thereon against said firm, and executions to be issued on said judgments and placed in the hands of the proper officers.

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

<p>1. Broker—Commissions.—A broker who undertakes to sell property for a certain commission when he finds a purchaser able and willing to purchase at the price fixed, has earned his commission although the sale is never completed, if the failure to complete it is in consequence of a defect of title, and without any fault on the part of the broker.</p> <p>2. Same.—The fact that the purchaser insisted upon the insertion of a clause in the contract referring the question of title to the opinion of his lawyer, which was agreed to by the seller, does not change the right of the broker to his commission.</p>

<p>Appeal from the County Court of Cook county ; the Hon. .Richard Prendergast, Judge, presiding.</p>

Thomas A. Mokan, Judge, presiding. Francis C. Sherman died November 7, 1870, in Chicago, where his property was situated, leaving as his widow Electa Sherman, and three children, to wit, Francis T. Sherman, George C. Sherman and Martha S. Marsh.

<p>1. Practice—Parties.—-In a suit on a replevin bond, brought by the coroner “ tor use,’’ etc., the party named as one of the usees is in no sense a party to the suit, nor is his presence in the suit, as a usee in any form at all essential to the protection of his equitable rights to a portion of the damages recoverable on the bond.</p> <p>2. Evidence—Faulty replevin bond.—A misdescription of the obligor in a replevin bond, when the records of the court show the error subsequently to liave been amended although no actual correction was made upon the papers themselves, will not prevent the bond being admitted in evidence under proper pleading, in a suit for damages thereupon.</p> <p>3. Panties—Replevin.—A creditor, at whose suit an attachment is levied upon goods not the property of his debtor, is not liable in replevin for the goods attached, either alone or jointly with the attaching officer.</p> <p>4. Chattel mortgage—Fraudulent.—A chattel mortgage expired by two years’ limitation while two executions were in the sheriff’s hands against the mortgagor, and it appeared that a short time prior to the expiration of the two years the mortgagee and mortgagor, in anticipation of the termination of the lien of the mortgage, entered into an arrangement by which the mortgagee was to take possession of the mortgaged property at the expiration of the two years and foreclose the mortgage by making a private sale of the property back to the mortgagor on credit and take a new mortgage to secure the purchase money, which arrangement was in fact carried out. Upon the two executions being levied the next day upon the property so held, and a replevin suit brought by the mortgagee to recover possession of the mortgaged property, Held that the jury were warranted in finding that the entire scheme was undertaken by the mortgagee for the purpose of so dealing with the property as to keep it in the possession and enjoyment of the mortgagor, and to protect it from the liens and claims of other creditors.</p>

Thomas A. Moran, Judge, presiding. On the 26th day of November, 1873, Jamos C. Watson and William H: Morrell, the appellees, filed their petition against Freeland B. Gardner and Edward, Benjamin, George, William R., and Ann H. Man ierre, for a mechanic’s lien.

<p>Appeal from 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. Rollin S. Williamson, Judge, presiding.</p>

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

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

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

<p>1. Party wall—Contribution.—Where one party erects a wall one half on his own ground and one half on that of the adjoining owner without any agreement either express or implied for a contribution by the latter to the former in relation thereto, and such adjoining owner subsequently builds and uses such wall for one wall of his building,: he can not be made to contribute any part of the cost of its erection. The bill filed in this case is defective in that there is no allegation of any agreement for such contribution.</p> <p>2. Same.—It is no sufficient answer that the alleged agreements were not in the complainant’s possession or accessible to him, and therefore that it was impossible for him to state their terms. It was incumbent on him to at least show by some proper averment that they contained provisions giving him some title to relief.</p>

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

<p>Appeal from the Circuit Court of Coot county '; the Hon. John G-. Rogebs, Judge presiding.</p>

Sidney Smith, Judge, presiding. This was an action of assumpsit, brought by Ira Tomblin against Mary Irene Fish, upon a party wall contract.

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

Hollín S. Williamson, Judge, presiding. This was an action by appellee, McLean, against the Garfield Manufacturing Company and the city of Chicago, to recover for personal injuries received May 6, 1884, by plaintiff, by reason, as it was alleged, of negligence on the part of defendants in not having sufficient guards around areas to a certain building in possession of said Garfield Manufacturing Company, which abutted upon a public alley.

He key M. Shepard, Judge, presiding. In 1856 Samuel Frazer, one of the appellants, commenced at Galena, Illinois, the manufacture of an axle grease, in accordance with a method discovered by him for combining rosin oil, salsoda, palm oil and water. The rosin oils were distilled from rosin at some five different degrees of temperature, the variation in temperature producing a difference in the quality of the oil.

<p>Pleading.—Common law rights and duties are known to the courts, but the duties of a private corporation toward its members and the rights of members thereof as against fellow members and as against the corporation can only he known by an inspection of the charter and by-laws of such corporations. As the declaration in this action against the Open Board of Trade, and certain members of such hoard, for conspiracy in causing plaintiff to be suspended in violation of the board’s rules, etc., does not set forth the rules or regulations of such hoard nor what acts the plaintiffs did in violation thereof, it is subject to demurrer.</p>

Henry M. Shepard, Judge, presiding. The bill in this case alleges that, for many years past, H. C. Klinesmith, the complainant, has been carrying on the business of an auctioneer in the city of Chicago, and that he is in every respect a fit and proper person to conduct said business; that said city heretofore passed an ordinance in relation to licensing and taxing auctioneers, as follows: Sec. 931. “Any person may become'an auctioneer and be licensed to sell real and…

Murray F. Tuley, Judge, presiding. June 9, 1885, appellee filed her bill against appellant, as her husband, setting forth his pecuniary ability, and charging him with having wrongfully neglected and refused to maintain lier and her infant child, alleging that she was living separate and apart from him without her fault; also charging him with having committed adultery ; praying that he be enjoined from disposing of his property; that she have the custody of said child and…

<p>Mechanic’s men—No lien—Personal decree.—A court has no authority to enter a personal decree in a mechanic’s li en proceeding where, for any reason, no lien can be declared upon property, or a fund arising from property. Under the statute the decree in a mechanic’s lien proceeding only operates as a personal decree for any deficiency existing after there has been a sale upon execution of the property subject to the lien.</p>

<p>Statute of Limitations.—An action of debt to recover against a stockholder of an insurance company upon the liability created by section 16 of the General Insurance Law of 1869. Held, that the liability sought to be enforced is in the way of a penalty, and to the recovery of such penalty the two year Statute of Limitations is a good plea.</p>

<p>Error to the Circuit Court of Cook county ; the Hon. Thomas Moran, Judge, presiding.</p>

<p>Appeal from the Circuit Oourt of Cook county ; the Hon-Thomas A. Moran, Judge, presiding.</p>

<p>Set-off—Surety sued atune.—Where a surety on a note, bond or other obligation, is sued alone, he can plead as a set-off a demand due to his principal only where he shows that the demand has been assigned to Mm or that he makes the set-off with the concurrence and consent of his principal, and such concurrence and consent must he evidenced in such manner as to bind the principal.</p>

<p>Appeal'from the Circuit Court of Cook county; the Hon. John Gr. ¡Rogues, Judge, presiding.</p> <p>This was an action by appellants, John Y. Farwell & Co. against Barber & Hartman, upon a promissory note, bearing date October 21,1885, whereby the defendants promised to pay the plaintiffs on demand, the sum of twenty-seven thousand six hundred sixty-two dollars and sixty-two cents. October 30, 1885, an attachment in aid was sued out and levied upon a quantity of goods of defendants, Barber & Hartman. By special leave of the court,(Barber & Hartman not appearing to contest the case or attachment proceedings) ¡Robert E. Jenkins, December 15,1885, interpleaded, and in his plea, which was verified by his own oath, set up that the goods seized by the attachment writ were the property of Barber & Hartman at the time of the seizure, October 31, 1885, but that November 2, 1885, the said goods remaining their property, they executed to him, said Jenkins, a general assignment, under the statute, of all their property, for the benefit of their creditors, whereby he, the said Jenkins, became and was invested with all the right, title and interest of said Barfier & Hartman, ,in and to all their property, including that in said goods. The plea then proceeded to traverse all the facte stated,, as the grounds for issuing said attachment, in the.affidavit for film .same, concluding to the country. To that interplea the plaintiffs filed a special demurrer. First. That said interplea does not conclude with a verification, Tout to the country. Second. That said inter-plea contains no prayer for judgment. The court overruled said demurrer, and plaintiffs elected to stand -by their demurrer. Judgment was entered quashing -the attachment and plaintiffs bring the record to this court by appeal.</p>

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

Hollín S. Williamson* Judge, presiding. Plaintiff in error brought an action for slander in the court below.

Joseph E. Gaby, Judge, presiding. In June, 1875, Edward Sanford, a lawyer, and engaged in negotiating loans on real estate at Morris, Grundy county, Illinois, received a letter from Chebanse, Iroquois county, Illinois, applying for a loan of §1,500, on eighty acres of land situated in Will county, about four miles from Loekport.

<p>1. Officer’s return.—While the officer’s return can not he contradicted so as to defeat jurisdiction, it may be done to excuse a default.</p> <p>2. Affidavits.—Where affidavits in support of a motion to set aside a default show a defense to the action upon the merits with all the certainty practicable in such a proceeding, the hearing of counter-affidavits is a vicious practice, and in such case such counter-affidavits will not ordinarily affect the question of abuse of discretion on the part of the court.</p>

Elliott Anthony, Judge, presiding. Plaintiff was tried in the Criminal Court of Cook county, on an indictment for obtaining money under false pretenses. The false pretenses were alleged to have been made in the sale of a certain horse to the prosecuting witnesses.

Henry M. Shepard, Judge, presiding. On the first day of May, 1881, Preston, Kean & Co., by their agent, James Payne, entered into a contract in writing with 'Gilbert A. Colby, whereby they demised to him block four in Hubbard, Crocker & Stone’s subdivision, etc., in Cook county, on which were situated certain smelting works, for the term of three years, reserving as rent the sum of $100 per month during the term; and in and by said contract said Preston, Kean & Co. agreed to…

John G. Bogers, Judge, presiding. The record proper sent up by the clerk contains a plaeita or convening order of the court at a term beginning September 21, 1885, being the third Monday of that month ; it recites that October 5,1885, there was filed in said court a certain judgment note, narr. and cognovit, which are set out in words and figures.

George Gardner, Judge, presiding. April 10, 1880, the Chicago South Branch Dock Company, as party of the first part, entered into… Held: contained the following provisions: “And it is mutually covenanted and agreed by and between the parties hereto, that in case default shall be made in any of the payments of principal or interest, at the time, or any of the times above specified for the payment thereof, and for sixty days thereafter, this agreement and all preceding…

<p>1. Evidence—“Dividend plan”—Right to proceeds.—The court is of opinion that under the evidence in this case complainants did not sell their milk to K., but delivered it to him to be manufactured inlo b liter and cheese on tbs “ dividend ’’ plan, thus retaining the jroperiy in the product after it was manufactured and a right to the proceeds of the same when sold, and that they therefore were entitled to the proceeds of the butter and cheese taken by them out of the hands of the bank’s agents and converted into money.</p> <p>2. Deed of trust—Description of parties.—The court is of opinion that the description of the beneficiaries or parties secured by the deed of tru-t is sufficient.</p>

Richard Prendbrgast, Judge, presiding. Action of covenant was brought in the county court by appellee against appellant and one W. Bedord; appellant alone was served and pleaded non, est factum, and a special plea settingup that he signed the lease as surety for Bedord only, and that this .fact was known to plaintiff.

<p>Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.</p>

<p>Mechanic's lien—Notice oe sub-contractor.—A notice of a sub-contractor, though in the statutory form, was addressed, not to the owner of the building but to her husband, who, though the agent of his wife, the owner, had no interest in the premises to which a mechanic’s lien could attach. lie Id, that the notice was not sufficient.</p>

Gwynn Garnett, Judge, presiding. This case was before this court at the October term, 1885, by the title of A. H. Andrews & Go. v. Stanton, receiver, etc., and an opinion was filed therein reversing and remanding January 6, 1886. That opinion states the facts of the case.

<p>1. Landlord and tenant—Surrender.—The execution and acceptance by both parties, of a lease really intended by the parties as a substitute for a former lease which had been destroyed, must be held as ¡amounting in law to a surrender of the former lease, and of all the rights to which the lessee was entitled thereunder.</p> <p>2. Evidence—Parol, to vary written agreement.—The admission of evidence tending to establish an oral agreement cotemporaneous with the execution of a lease, is a clear violation of the rule which prohibits the acliuis. sion of parol evidence to add to or vary a written agreement.</p>

<p>1. Park commissioners.—By an exception in the act of 1869 creating the West Chicago Park Commissioners, the commissioner who for the time being should be president of the board might have such compensation as president as the board in its discretion should fix, not to exceed $4,000. By the general act of 1871 it is declared that no park commissioner shall receive any salary as compensation for personal services. Held, that as the 1 after provision is utterly repugnant to the exception in lie firmer act, the "aw of 1871 abre gates the act of 1869, as ref ards the discretion as to president’s salary given to the board in the act of 1869.</p> <p>2. Act of 1873.—The act of 1873, repealing in tolo the act of 1871, did not restore to the board the discretion vested in it by the act of 1869. (Act of 1873, § 14.) No act or part of an act repealed by the general assembly shall be deemed to be revived by the repeal of the repealing act.</p>

<p>1. Partnership—Accounts—Statute of Limitations.—A bill in chancery between parties or their representatives for an account, is subject to the limitation of five years, and where the bar of the statute appears on the face of the bill and no circumstances are alleged to take the case out of the statute, the bill is obnoxious to a demurrer.</p> <p>2. Same—Mistake of law.—The court is of opinion that the facts stated in this bill fail to take the case out of the Statute of Limitations, the only ground of relief being a mistake of law, not unmixed with negligence.</p>

Elliott Anthony, Judge, presiding. This case was an action brought by appellee against appellant, to recover the amount of a judgment obtained by one Mary Wells against the city of Chicago, in an action brought in the circuit court, wherein she recovered damages for an injury sustained July 23, 1831, by falling into an open space in front of the lot of appellant. The city paid the judgment before bringing this suit.

<p>1. Insurance—Adjustment.—Where a party was employed by an insurance company to go upon the premises, and in conjunction with representatives of other companies and the assured to make calculations and deductions, and after all proper allowances and deductions were made the proportion of the loss to be paid under the policy was ascertained and stated. Held, that this was an adjustment, and the fact that it was not formally signed and an express promise made in such manner as to conclusively bind the company willjnot, under the circumstances of the case, prevent such adjustment from being received as prima facie evidence of the right of the assured to recover the amount thereby ascertained.</p> <p>2. Same.—A promise to pay the amount may be implied from such adjustment, but the defendant is not estopped by it, and may avail itself of any defense which will show that the implied promise is without consideration.</p>

<p>1. Demurrer.—When judgment is given against a party on demurrer to a pleading, such party, if he wishes to obtain a review of the judgment must stand by his pleading in the court below, otherwise he will be precluded from assigning the judgment for error.</p> <p>2. Jurisdiction—Changing prom daw to chancery.—Courts of chancery and courts of law are, in this State, distinct tribunals. Though they may be presided over by the same judge they possess separate and distinct jurisdiction. Where parties upon demurrer to a declaration elected to take leave to file an amended declaration, and afterward sought to amend by filing a bill in chancery in place of the declaration. Held improper to thus change the action at law to a suit in chancery.</p>

Joseph E. Gary, Judge, presiding. This was an action by appellee against appellant, upon aeon-, tract of insurance, made March 17, 1884, whereby the latter as it is alleged, undertook, for a valuable consideration, to in. sure the former against loss by fire upon one thousand bags of timothy seed then in the Northwestern warehouse, in the city of Chicago, from the 18th day of March to the 10th day of June, 1884. The grass seed mentioned was destroyed by fire May 25, 1884.

<p>1. Instructions.—A refusal to give an instruction -which is in conformity with law, based on the evidence and presenting a view of the case that may be controlling, and which is not covered by any other instruction, will cause a reversal of the case.</p> <p>2. Same—Negligence.—In an action for damages for personal injuries, a modification by the court of several of defendant’s instructions by adding the words “ and he was injured in consequence of his own carelessness and negligence, and not through the carelessness and negligence of the defendant, then the plaintiff can not recover ” was erroneous. The effect of this modification was to direct that the jury must find, besides the facts supposed in the instruction, the further fact that the plaintiff was injured by his own negligence and not by the negligence of the defendant, in order to defeat a recovery, which is not true.</p> <p>3. Same.—When there is a sharp conflict of evidence on a material issue in the case, the instructions should be accurate, clear and perspicuous; and when, in such a case, a reviewing court can see that the jury may have been influenced by improper or inaccurate instructions, the case must be sent back for new trial.</p>

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

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

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

<p>1. Negligence at common law.—A railroad company built a barbed wire fence a quarter of a mile in length on each side of its right of way. There wore no cattle guards or other structures at. either end of the wire fence to prevent animals from entering upon the track or right of wayAppellee’s horse entered on the right of way between the ends of this fence and while there the whistle on a passing freight was blown several, times-The horse became frightened and jumped on the fence and was thereby injured. Appellee brings an action for damages against the railroad company, basing his right to recover on the company’s negligence in the erection and maintaining the fence built in the manner and of the material mentioned, and in blowing the whistle so continuously. Held, that the judgment for appellee was proper under the circumstances of this case.</p> <p>2. Instructions.—An instruction that “ the defendant is not liable for injury to plaintiff’s animal unless it appears from the evidence that the employes in charge of defendant’s engine, willfully and. maliciously blew the whistle on said engine with the intention of frightening plaintiff’s animal and not for the purpose of getting the animal to leave the track and get out of the way of approaching trains.” Held, erroneous.</p> <p>3. Negligence in giving signals.—The right to operate a railroad includes the right to make the noises incident to the movement and working of its engines and to give the usual and proper signals of danger, as sounding of whistles and ringing of hells, hut its agents must he free from negligence in their use.</p>

<p>1. Contract—Sale—Remedies on failure to pat.—In contract for sale and delivery of personal property at a specific and agreed price, when the vendor delivers the property in accordance with the conditions of the contract and the vendee refuses to pay for the same according to the contract, the vendor then has a choice of remedies; he can sue for and recover the contract price or he can reclaim the property and recover as damages for such breach the difference between the contract price and market value of the property at the time and place of delivery.</p> <p>2. Same—-Remedy on failure -to accept.—If the vendee refuses to accept the property and pay for the same under such a contract, the vendor can reclaim the property, and then, after having given notice to the vendee of his intention, he can proceed to sell the property to the best advantage and within a reasonable time, and recover as damages the difference between the net proceeds of sale and the contract price.</p> <p>3. Pleading—-Recovery must conform to.—The plaintiff is bound by his pleadings and must recover, if at all, upon a case made out thereunder.</p>

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

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

<p>1. Setting aside default.—Where defendant’s attorney was also State’s attorney, and was temporarily absent, by leave expressly given by the court, to attend before the grand jury, at the time the default in question was taken, and it appeared that it was through no fault of defendant or his attorney that they were not ready to answer when the cause was called for trial, and the motion to set aside the default was made on the same day that it was entered, it was proper for the court below to set aside the default.</p> <p>2. Warranty.—When vendor of warranted chattels sues for the price, it is competent for defendant purchaser to prove breach of warranty in reduction of damages, although goods were sold at a fixed price and have not been returned; if no offer is made to return goods, the measure of damages is the difference between sum given and real value.</p>

<p>Quo warranto—Vote oe council.—Under the decision of the Supreme Court. (113 Ill. 137), the action of the city council of East St. Louis in sus1 ¡lining the motion to approve the bond of Launtz, who had been, duly appointed to succeed appellant as city treasurer by the vote of four of its eight * 'embers with the vote of the mayor, as in case of a tie, was held to be an ¡ oproval of said bond. The judgment of ouster against appellant in the ji_uo warranto proceeding in the court below, was therefore proper.</p>

<p>1. Promissory note—Suit for interest.—A note for $1,000 given October 20, 1882, contained this interest clause: “with eight per cent, annual interest from date until paid.’’ Ten days after the note became duo suit was brought before a justice of the peace for the interest on said note for one year, and judgment obtained for such interest. In 1884, suit was brought on the same note and judgment obtained for the principal and interest from October 20, 1883. Held, that the judgment obtained before the justice of the peace is not a bar to the second action.</p> <p>2. Same—Interest clause.—The above interest clause must be given the same effect as if it had read “with eight per cent, interest, payable, annually.”</p>

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

In February, 1881, appellant obtained a decree of divorce from appellee, and by it was awarded the custody of their three sons, and alimony for the support of herself and said three sons fixed at the sutn of seventy-five dollars per month, Both p irties married again, appellant beconrng the wife of aman whom the record shows was of ample means. Soon after his marriage to his present wife appellee filed his petition to ojien the former decree as to the custody of the children.