Volume 19 — Illinois Appellate Court Reports

<p>1. Interest in land — Descends to heirs. — An interest in land descends to the heirs, and will not pass to an administrator as would a chose in action, or personal estate.</p> <p>2. Agency — To collect. — An agent employed to make or negotiate a contract is not as of course to be treated as having an incidental authority to receive payments which may become due on such contracts. An agent intrusted to receive payment of a negotiable or other instrument is ordinarily entitled to receive it only when and after it becomes due, and not before, unless there be a known usage of trade or course of business in a particular employment or habit of dealing between parties extending the ordinary reach of authority.</p>

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

<p>1. Chancery — Demurrer.—In a bill for divorce plaintiff in error filed a plea denying that, defendant in error was at the time of filing his bill, or since, a resident of J. county, in which the bill was filed, but averring that he was at that time, and still was a resident of W. county, and demanding the judgment of the court whether plaintiff in error ought to make any answer to the bill, etc. Held, that it was error to sustain a demurrer to such plea.</p> <p>2. Office of flea in chancery. — A plea to abill in chancery is proper whenever the defendant wishes to reduce the cause, or some part of it, to a single point, and from thence to create a bar to the suit.</p>

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

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

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

<p>I. Practice — Re-instatement of cause after term expires. — A case may be re-instated for further proceedings after the lapse of a term upon notice to the properparties; and if the parties appear to the cause after it has been re-instated and participate in the subsequent proceedings without objections, want of notice, and the regularity of the re-instatement will he treated'as waived.</p> <p>2. Same — Damages on dissolution of injunction. — If the suggestion of damages are filed at the time the injunction is dissolved, the hearing and assessment thereon may properly be had at any subsequent term.</p> <p>3. Samf. — These suggestions when so filed take the place of a declaration on the bond, and should he so framed as to give the opposite party notice of the damages claimed.</p> <p>4. Same — Bill of exceptions. — Failure to preserve the evidence in the record is fatal on appeal.</p> <p>5. Evidence — “Usual and customary fee;” — In proving damages upon dissolution of an injunction, testimony that a certain fee would be “reasonable ” is not proper and sufficient upon which tobase a decree. It should be, “ Whathas the defendant paid or become liable to pay, and is it the usual and customary fee paid for such services? ”</p> <p>6. Damages — Dissolution of injunction against attorneys. — It is doubtful if a court should allow damages to solicitors for services in securing the dissolution of an injunction against themselves.</p>

<p>Attorney and client — Continuation oe relation. — Where an attorney deposits a county order for his ^client, as security to sureties for signing a bond in an attachment suit against his client, the attorney may, in the absence of proof that he has been discharged, rightfully demand its return and receive it back upon the fulfillment of the conditions upon which it was deposited.</p>

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

<p>1. Leasing op school boom by board. — The leasing of a school room by the board of education for temporary use for school purposes, where there is no permanent school building in the district, or where the school buildings are insufficient to accommodate all the children entitled to attend, is not within the express prohibition of the proviso to section 80 of the statute relating to schools, and this court is not disposed to extend it by construction so as to include it.</p> <p>2. Renting part op church por. school. — The paying of rent to a church organization for the use of a room for school purposes, is not such an appropriation or aid to the church as comes within the prohibition of our constitution.</p> <p>8. Religious exercises before school. — The facts alleged in the bill relative to the employment by the board, of teachers affiliated with the Catholic church, and the fact that teachers and pupils for one hour before sjhool time were required to attend*mass, is not passed upon by the court, inasmuch as it appears the'children acted voluntarily in taking part in such exorcises, and complainant has not shown wherein, as a taxpayer, he has or can be injured by such acts, and does not ask relief from such alleged acts.</p>

<p>Api’eal from the City Court of East St. Louis; the Hon. "Wat. P. Launtz, Judge, presiding.</p>

<p>Wife créditos of husband. — A wife who has loaned her husband 3noney stands precisely like any other creditor of the husband under the laws of this State and he has the right" to prefer her to them if done in good faith.</p>

<p>Mortgage — Tax title. — Where a bill is filed against mortgagors to foreclose a mortgage, and a party who claims the mortgaged premises under a tax deed is made a party defendant, the court should dismiss the bill as to such person. The court has no jurisdiction to adjudicate upon an adverse legal title in such suit. The fact that the tax title was acquired after the mortgage does not change the rule.</p>

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

<p>Ihsubattce. — Where a policy of insurance contained the condition that if the building should be or become vacant or unoccupied for the purpose indicated, as a dwelling house, the policy should become void unless consent was given by the underwriters, it was error for the court to make the liability dependent upon the diligence of the assured to keep the building occupied. Such qualification was not contained in the policy.</p>

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

<p>Fraudulent sale. — IE the purchaser from a fraudulent vendor buys with notice of the fraudulent intent o£ his vendor, he stands in his vendor’s shoes and notice may be inferred from the existence of certain facts and circumstances that would place a man of ordinary prudence on inquiry with reference to the conduct of his vendor. The jury properly found from the evidence in this case that a pretended sale was made with a purpose to defraud the original vendor.</p>

<p>Appeal from the Circuit CourCof Monroe county; the Hon. Wh. H. Sykdee, Judge, presiding.</p>

<p>Eeeoe to the Circuit Court of "Union county; the Hob, Eobeet W. MoCaetjney, Judge, presiding.</p>

<p>Sealed verdict. — It is competent for parties to stipulate for the nonattendance of the jurors where a sealed verdict is opened and read in court, but a mere agreement for a sealed verdict does not have that effect nor deprive the parties of the right to have the jury polled. A rule of court as to sealed verdicts construed.</p>

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

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

<p>Error to the Circuit Court of Cook county; the Hon. Robert W. McCartney, Judge, presiding.</p>

<p>. I. Administration or estates. — Letters of administration relate to the death of the intestate, and the law validates all the acts of the administrator in taking possession of the property of the intestate, and in settle, ment of the estate from the time of his intestate’s death, it such acts would be valid under letters issued prior to such acts.</p> <p>2. Surety — Administrator’s bond. — The same facts which establish a liability of the principal upon an administrator’s bond are competent against the surety.</p>

<p>1. Debtor and creditor — Compos-tion agreement. — In a composition agreement with creditors if the deed contains an absolute release of all debts and Habilites for a consideration then paid by the debtor, the creditor can not he allowed to show by parol evidence, in opposition to the terms of the deed, that a particular debt was not intended to be and was not included within its provisions.</p> <p>2. Same. — A creditor can not recover any part of his debt withheld or reserved from the operation of the composition deed.</p> <p>3. Evidence — Parol.—Parol evidence held competent in this case to show a non-compliance by the debtors with the conditions in the composition deed.</p>

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

<p>Appeal from the Circuit Court of White county; the Hon. Carroll C. Boggs, Judge, presiding.</p>

<p>1. Criminal law — Protection of bank depositors. — In a prosecution under the “ Act for the Protection of Bank Depositors,” passed in 1879, neither knowledge of insolvency nor fraudulent intent are necessary to be alleged in the indictment, nor need they be proved on the trial.</p> <p>2. Same. — But the allegation of insolvency of the banker is a material and necessary one, is affirmative, and must be established by proof on the part of the people as any other material and necessary averment before a conviction can be had.</p> <p>3. Practice. — It is irregular, but not ground for reversal, in the absence of evidence that the party complaining is damaged thereby, for the presiding judge to temporarily absent himself from the court room, leaving a member of the bar upon the bench during the progress of the argument to the jury.</p>

<p>1. Evidence — Impeaching witness. — A witness can be impeached by-showing that he had made statements out of court contradictory to his evidence, but only provided the foundation is laid by interrogating him first as to whether he made the outside statements, fixing time and place, thus giving him an opportunity to explain.</p> <p>2. Same. — A. party, to avoid acontinuance, having admitted that a witness would swear to the facts stated in an affidavit for continuance, can not, on the trial, introduce evidence of admissions made outside of court by the witness whose testimony was referred to in the affidavit for continuance, for the purpose of impeaching him.</p> <p>3. Contract — Consideration—Compromise of pending suit. — The compromise of a suit pending is a good consideration for a contract, and if fairly entered into, a suit may be maintained for its breach as in any other case.</p> <p>4. Attorney and client — Infant.—An attorney of a court of record of an infant binds his client as in any other case, by a settlement or compromise of a pending suit.</p>

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

<p>passenger's earner will not prevent Ins recovering from the other whose negligent act contributed to the injury. They may be sued as any other wrongdoer, jointly or severally.</p> <p>2. Letters of administration — Error.—Where, under the issues, no proof of letters of administration was necessary, an error committed by the court in admitting such letters would be immaterial.</p> <p>3. Negltgenge. — Where deceased was accompanying his stock to its destination and by the direction of the train employes rode on the tender of the engine, an exceedingly dangerous position, especially in the stockyards, where there were numerous tracks used by various roads without any rules or regulations governing the movement of trains, and by a collision of trains in the st ckyards was killed, held, that under the evidence the judgment in favor of deceased’s administrator was proper.</p>

<p>1. Nuisance — Notice.—A grantee of land with an embankment on it which obstructs the flow of water, can not be made liable for permitting it to remain in the condition he found it, although it works injury to another, without a notice to remove or abate it.</p> <p>2. Pleading. — An action on the case for maintaining and continuing an embankment obstructing the flow of water. Held, that under the rules of pleading the court must assume from the plea that the defendant is not responsible for the erection of the embankment, and no notice to remove or abate it being averred, the demurrer to the plea was properly sustained.</p>

<p>1. Insurance — Change in title. — A change of title in violation of the express terms of a policy of insurance would render it void.</p> <p>2. Ratification. — A party can not repudiate the acts of another done in his interest and on his behalf and at the same time retain the fruits of the act.</p>

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

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

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

<p>Banking. — A bank where a draft is made payable has no right to pay it, or apply the money deposited there by the acceptor of such draft, except by the special direction of such acceptor, either verbally, or by check or draft, or some other writing.</p>

<p>1. Statute of Limitation's — Municipal corporation. — The sovereign is not within the Statute of Limitations, and this exemption has been held to include public rights of, and property held in trust for public use by municipal corporations, but it does not include contracts or mere private rights, and as to these latter, the statute may be interposed against municipal corporations as well as against private persons.</p> <p>2. Same — Transfer of property by town — Apportionment of indebtedness. — A town, A, became indebted on a railroad subscription, and issued its bonds therefor. After this liability had been incurred, but before all the bonds were issued, a portion of the territory of the town was transferred to an adjacent town, B, pursuant to the statute. But the supervisors and assessors of the respective towns did not meet and apportion the indebtedness as provided by the statute. More than ten years after the issuance of j the last of said bonds, the supervisor of the town of A served notice upon , the supervisor and assessor of the town of B for a meeting to apportion the indebtedness, to which no attention was paid by the officials of B. The officials of A bring mandamus to compel the holding of such meeting. The defense of the Statute of Limitations of five years is made. Held, that the present controversy affects, not a public right, nor property held for a public use upon a trust, but a mere private right; and it was therefore error to overrule the defense of the Statute of Limitations; that the cause of action accrued before the bonds became due.</p>

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

<p>1. Declarations. — In a case of replevin, where two parties claimed the horse in question, it was error to permit them to introduce in evidence the declarations of their respective vendors, made to third persons, and in the absence of the other. But the declarations of the respective vendors, made before either had parted with his alleged title, and when both were present, would be competent to be shown by either party.</p> <p>2. Suit on replevin bond.- — When suit is instituted upon a replevin bond, and the appellant seeks to defeat a recovery upon the ground that the merits of the controversy were not tried, the burden as to the right of property rests upon him, the same as in the replevin suit.</p> <p>3. Jurisdiction. — Where it was urged by appellant that the court erred in permitting the summons to be amended by attaching the seal, held, that after submitting to the jurisdiction of the court by filing his pleas, the appellant can not be heard upon this question.</p>

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

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

<p>1. Practice — Appeal.—An appeal may be dismissed for want of prosecution where the appellant is present and signifies that he will not prosecute the appeal further.</p> <p>2. Bill op exceptions — Presumption.—When the bill of exceptions states that the appeal was dismissed for want of prosecution, it is fair to presume that the appellant in some way indicated to the court that he would not press bis appeal. The mere fact that he excepted to the action of the court is not sufficient to rebut such presumption. The matter relied upon as a reason why the appeal was improperly dismissed should be expressly shown.</p>

<p>1. Refublication of will, effect of. — The re-execution of the testator’s will and codicils will have no other effect than a republication, and therefore will not revive legacies which have been advanced or satisfied.</p> <p>2. Evidence — Dischabge of lebacy. — Under the evidence in this case, the court is of opinion that it was the clear purpose of the testator in making the payments in question to plaintiff to discharge the legacy, and that it was so understood by plaintiff.</p>

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

<p>1. Public highway by prescription — Presumption.—To establish a highway by prescription it must he shown that the use of it as such has been public for twenty years, adverse or under claim of right, uninterrupted, with the acquiescence and yet without agreement of the owner of the land made within that period. As a rule, the public use of it' for that period as a highway, unexplained, will raise a presumption of the other conditions stated and shift the burden of proof as to them.</p> <p>2. Same — Exceptions.—An exception to the above rule is recognized in the case of wild and uninclosed land and where an open way in a town or village is affirmatively shown to have been so made or left by the owner for his private use though the public also may have used it without objection by him, and where this object and purpose are manifested from the way itself or its especial relation to his other premises.</p> <p>3. Interruption to defeat right. — The interruption to defeat the right by prescription must he an interruption of the right and not simply of the use or possession.</p> <p>4. Levy of taxes. — The levy and collection of taxes on the land by the city against the owner is not conclusive against the claim that it is a public highway.</p> <p>5. Chancery .jurisdiction. — Defendant city was, and for twenty-six years had been, in actual peaceable possession of land for public use, claiming it as part of a legal highway within the city and therefore under its control. Complainant erected a fence thereon and filed a bill in equity for an injunction to restrain the city officials from removing the fence. Held, that the bill is without equity.</p>

<p>1. Lawyer’s fee. — What is a reasonable fee in a given case is a question of fact, to be determined, like others, by the weight of the evidence. The court is of opinion that $6,000 was a reasonable fee in this case.</p> <p>2. Estoppel by judgment.- — -Property which was insured was destroyed by fire communicated by a spark from an engine. The insurance companies paid in full except the appellant company, which, having failed, paid only a dividend of fifty-two per cent. An action was brought by the insured against the railroad company, notice of which was given to all the companies except the appellant. A verdict was returned for the insured for the value of the property as found on the trial. The railroad company filed an interpleader. All the parties were brought in and an interlocutory-decree was made in accordance with the prayer of the bill. The final decree was satisfactory to all except the appellant company, and the question at issue is whether in this suit the adjudication as to the value of the property in the railroad case is conclusive between the appellant company and the insured. Held, that the judgment is not conclusive between them.</p> <p>3. Estoppel must be mutual. — It is essential to an estoppel that it be mutual between the parties to the proceeding in which it is claimed.</p> <p>4. Notice. — The court is of opinion that the notice to the president of the suspended company was not due notice to the company or the receiver.</p>

<p>1. Employe claiming reward. — The mere fact that appellee is an employe of appellant does not conclude him from claiming the offered reward. Keiser y. Cox, 16 Bradwell, 681.</p> <p>2. Reward. — “ $500 reward will be paid to any parties who will secure the arrest and conviction of any person who has injured persons or property by throwing stones or other missiles at the trains of the C. & A. R. R. Co.,” construed not to cover a case where an employe or passenger became involved in a personal difficulty with a stranger, and such missile was thrown at him during, and as a part of, a personal contest.</p>

<p>1. Affidavit fob continuance. — An affidavit for continuance must show reasonable diligence in every direction wherein it is claimed the party is unprepared for trial. It is addressed to the discretion of the trial- court whose action in refusing the application can not be assigned for error unless it is apparent that such discretion has been abused.</p> <p>2. Same — -Counsel engaged in anotiieb suit. — The affidavit stating that counsel’s presence was necessary in the trial of the suit inasmuch as he alone thoroughly understood the facts of the case, and that he would be engaged in the trial of another suit at that time, was not sufficient to warrant a continuance.</p>

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

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

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

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

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

<p>1. Road ard Bridge Act — Notice.—The notice required to be given by the commissioners of highways under section 33 of the Road and Bridge Act of 1883, is jurisdictional, and unless it has been given, the commissioners are not authorized to act.</p> <p>2. Same. — The designation of a general locality or one embracing others commonly known as places, without the particular place, is not a substantial compliance with the statute. The notice in this case held defective, both as to time and place.</p> <p>3. Same — Damages.—Where all that was shown upon the subject of damages accruing to appellee (Road and Bridge Act, §§ 39, 40, 41) was set forth in the following recital in the commissioners’ final order, “that the route of said road, so far as it passes over appellee’s lands (describing the land), passes wholly upon an old established route which was duly laid out and opened many years since, and has been a public highway since 1870, that appellee has personally released all damages accruing to him from laying out a road along said route through his land,’’ the court is of opinion that this is not competent evidence of what is so recited.</p> <p>4. Certiorari — Appeal.—An appeal is .a recognition of jurisdiction. The commissioners not having acquired jurisdiction of appellee’s person, their proceedings were void, therefore there was nothing to appeal from and certiorari was the proper remedy.</p> <p>5. Costs. — It was error to award costs against the commissioners- personally.</p>

<p>Mandamus — Bridge Act. — A petition for im.nd.unus to compel the board of supervisors to make an appropriation in aid of the repairing of a bridge. The application for aid was made under section 19 of the Road and Bridge Act of 1883. On demurrer to the petition, held, that the petition shows a prima facie case for a mandamus; that the language used in section 19 does not clothe the board of supervisors with the right to determine conclusively whether the duty of making the appropriation asked has arisen. Distinguished from the case of People v. Dental Examiners, 110 Ill. 180.</p>

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

<p>1. Sale to creditors. — A debtor, becoming embarrassed, sold his entire stock of goods to certain of his creditors, and gave them a bill of sale, and the creditors, by a written appointment, authorized appellee, a creditor, to conduct the business. Possession of the store was given to appellee, who opened a new set of books, took down the debtor’s sign but did not put up another, employed the former clerks, paid the rent, etc. Replevin was brought by a creditor not participating in this arrangement, and this suit is for damages for the goods seized by the sheriff under such writ. Ho question was made as to the good faith of the sale, but the question at issue whether the sale by the debtor was followed by such a transfer of possession as to vest the title to the property in the appellee, is decided in favor of appellee.</p> <p>2. Damages. — Appellee would be entitled to recover full damages for the goods seized.</p>

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

<p>Defendants not served. — Where there were several defendants, some served and some not, and the clerk in entering np an order used the word “ defendants,” such term would include only those who by their own act or the act of the law had been made the subjects of jurisdiction.</p>

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

<p>1. Reasonable time. — 'Where no time is mentioned'in a contract for the performance of its conditions and it can not be gathered from the language employed what was the intention in this respect, the law will imply a reasonable time, and what is a reasonable time will depend upon the peculiar circumstances of the case.</p> <p>2. Construction on contract. — Where a contract for the sal© of a tract of land contained the provision that if the parties saw fit to survey the land for the purpose of ascertaining the amount of acres contained therein, which by preceding clauses had been provisionally determined, and if such survey should show more acres than shown by the government- survey, the vendee should pay the difference, and if less the amount should be deducted from the purchase money, and the land was sold and the money paid, and seven years after, a survey was made by the vendors and an excess of land over the amount shown by the government survey was found and this action was brought for theadditional payment. Held, that upon a construction of the contract and the undisputed facts in the case no right of action exists.</p>

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

<p>Appeal from the Circuit Court of DeWitt county; the Hon. Geo. W. Heedman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Creen county ; the Hon. C. W. Herdman, judge, presiding.</p>

<p>Illegal sale. — Where a substantial part of the demand upon which a Judgment was based was for the price of certain intoxicating liquors sold at retail and in violation of law, the vendor having no license therefor, held, that the vendor had no cause of action as to the liquors sold in violation of law.</p>

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

<p>Administration of estates — Claims not due. — Sec. 67, Chap. 3, R. S., providing for presenting claims not due for allowance, is to be construed as applying only to cases where the liability is absolute, and not where it is merely contingent, like the liability of an indorser of a promissory note not yet due.</p>

<p>1. Administration — Parties.—In a petition to sell real estate to pay debts, it is not necessary to make those who may be supposed to have claims against the estate not presented for allowance, parties to the petition,* a compliance with the statute is sufficient.</p> <p>2. Same — Rights of creditors over purchasers from: heirs or devisees. — All devises .are fraudulent and void as against creditors, and creditors have a lien against the estates of their deceased debtors for the satisfaction of their debts, which they may assert — and enforce through administration — even against purchasers from heirs or devisees.</p> <p>3. Same — Homestead exemption. — While the provision of the statute which continues the homestead exemption after the debtor’s death for the benefit of the widow and minor children is established, yet after the exemption ceases the right to sell to pay debts of the testator has been fully recognized.</p>

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

<p>Appeal from the Circuit Court of Schuyler county; the Hon. J. 0. Bagby, Judge, presiding.</p>

<p>1. Highway commissioners — Jurisdiction.—It is the petition as filed that gives jurisdiction, and determines the character of the road applied for, and the mere fact that in the proceedings it is afterward designated as a private road, can neither oust the commissioners of jurisdiction nor destroy the force of the original petition.</p> <p>2. Record — Impeaching by parol testimony. — The record of the county commissioners must speak for itself, and can not be contradicted in a collateral proceeding by parol testimony.</p>

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

<p>1. Assignment on accounts — Payment to assignor. — Where a firm, by a bill of sale, conveyed to a bank a large amount of personal property, and by the same instrument assigned and delivered to the bank a number of accounts against various parsons, and a remittance being sent to appellee, a member of the firm, to pay one of the assigned accounts, he sought the advice of hia attorney, and in accordance therewith pocketed the money, and the bank demanded the money and upon a refusal brought this suit, held, that appellee is liable.</p> <p>2. Advice oe counsel — When admissible. — The advice of counsel is sometimes admitted in evidence to show the good faith of a party ignorant of the law, but only in doubtful cases.</p>

<p>A writ of error will not lie to review the finding of the court helow upon a writ of habeas corpus. (Case to determine custody of ward.)</p>

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

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

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

<p>Error to the Circuit Court of Peoria county; the Hon. 2sT. M. Laws, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Charles Kellum, Judge, presiding.</p>

<p>Recoveby back — Special assessment — Tbust fund — Limitation.— A bill in equity filed by appellee against appellant town to restrain the latter from turning over to the road and bridge fund $1,491.40 collected from the property of appellee to pay certain interest on the registered bonds of the appellant and paying a portion of said bonds. The act under which the bonds were claimed to have been issued was void. Held, that as this is a special fund created for a special purpose outside of the ordinary revenues of the town, it becomes a trust fund and must be applied to the purpose for which it was raised or refunded; that the Statute of limitations will not run against the party entitled to the fund.</p>

<p>1. Mining. — The court is of opinion that the fourth section of the statute entitled 11 Health and Safety of Miners” (Sessions Liws 1883, p. 114) is applicable to this case; that the place where the accident occurred was a mine within the meaning of the statute, and the fact that the miners were not actually mining coal at the time, does not affect the question.</p> <p>2. Same. — Where the cause of action was in part based on the statute- and in part on the failure of appellant to use due care by proper appliances to keep the shaft clear of fire damp, it was not error to refuse instructions as to the doctrine of fellow-servants.</p> <p>3. Evidence — -Marriage.—In an action on the case by a wife for damages for the death of her husband the party sued offered the evidence of another woman to prove that the latter was the wife of deceased and not the former. Held, that it was proper to exclude such evidence.</p>

<p>1. Sale op letters patent — Warranty—Fraudulent representations.' — Appellee sold certain letters patent to appellant, and the only warranty given was that appellee held and retained the full and absolute; title to the letters patent. The agreement between the parties set forth that appellee did not warrant the validity of the patents or that they were not infringements. Appellee represented that the patents were genuine and novel, and that he had been offered $25,000 in cash for them. The patents were invalid. ■' Held, that the contract in this case can not be avoided for such false representations.</p> <p>2. False statements as to value. — False statements made by a vendor of property, as to its value or the price he has been offered for it, will not support an action' for deceit</p>

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

<p>1. Alimony pendente lite — Practice.—-The court is of opinion that it is not necessary that the facts to justify an order or decree for the payment of moneys pending a divorce proceeding; for the maintenance of the wife and children of the husband, should appear either upon the face of the decree or in the record. B ut, whatever the rule may be, sufficient evidence appears in this record to sustain the order made.</p> <p>2. Same. — Decrees for alimony pendente lite are interfered with by courts of review only where it is affirmatively shown that the amount allowed is. excessive.</p>

<p>Injunction. — A bill in equity to enjoin the rebuilding of a privy by appellant within five feet of appellees’ line, contrary to the ordinance of the city. Held, that in such a case, where the injury resulting from a nuisance is in its nature irreparable and would result in the loss of health and permanent ruin of property, a court of equity will interfere by injunction.</p>

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

<p>1. Pabol authority to execute chattel mortgage. — Parol authority to execute a chattel mortgage is sufficient. Where one who has parol authority to execute a chattel mortgage, executes it under seal, the seal is surplusage.</p> <p>2. Agency — Referring act to power. — In order to uphold the instrument courts will refer the act to the power that the agent had.</p>

<p>1. Bastardy Act. — A prosecution under the Bastardy Act is a civil proceeding.</p> <p>2. Same — Jurisdiction.—A bastardy proceeding is properly and primarily within the jurisdiction of county courts at their probate term.</p>

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

<p>Mining — Keeping gates closed. — Where gates are placed at the top of ■ coal shafts, as provided by statute, it is the duty of the mine owner to use reasonable care to prevent the gates or bars becoming or remaining open: While the circumstances in this case tended to show negligence in not keeping the gate closed, there were not any facts developed from which willful negligence could he imputed, and it was therefore error to submit to the jury the question of willful negligence.</p>

<p>Master and servant — Instruction—Defective tools. — An instruction that “ the law requires the master to exercise reasonable care in selecting safe tools and appliances which the master is required to furnish for his servants’ use in his employ; and although a tool may be in doubtful safety and although its character may be as well known by the servant as the master, yet if the master, knowing the defect, or if he could have known it by the exercise of due diligence, commands, urges or induces the servant to so use the tool, and the servant is injured by the use of it while exercising due care in his own behalf, then,” etc., held, erroneous in not adding the proviso to the rule, that if the tool or implement was so obviously insufficient that no prudent man would have used it, then there could have been no recovery.</p>

<p>1. Instructions. — Where the court, in telling the jury what should be done in a certain event, used the expression, “ if the jury find the defendant guilty, then they should assess the plaintiff’s damages,” and omitted to say find it guilty under the evidence and instructions of the court, held, that as the court was not instructing the jury how or from what they should find, which had been done in other instructions, there was no error in such omission.</p> <p>2. Instruction as to damages. — An instruction which told the jury that appellee, who was suing for an injury caused by a fall on a sidewalk, would be entitled to recover for pain and anguish, enumerating the different elements of damages, not however, any of an exemplary nature, if, etc., instead of saying the jury may give such damages, was not erroneous.</p> <p>3. Defective sidewalks — Notice—Damages.—In case of a suit for an injury by a fall on a defective sidewalk an instruction which stated in general terms the duty of a city to use ordinary care and diligence in the erection and maintenance of its sidewalks, but which omitted the circumstance of notice to the city of a defective sidewalk, is not erroneous where the question of notice was brought out in other instructions.</p> <p>4. Municipal corporations — Execution.—No execution can issue against a municipal corporation.</p>

<p>1. Rate of interest. — In this State, where a note draws a" certain rate of interest from date, that same rate continues until paid.</p> <p>2. Usury — Forfeiture of interest. — Where a suit is brought upon a promissory note for money loaned, in the making of which the payee contracted to receive more than legal interest, and the defense of usury is successfully interposed, all interest in such case should be forfeited that accrued subsequently to the time the note became due, as well as the usury first taken, which ran to the date of the note.</p> <p>3. Renewal of note — Different payee — Purging note of usury. — The court is of opinion that the transaction in this case was not purged of usury that existed in the original transaction, but as far as the amount due to Martin upon the giving of the new note, January 22, 1872, after deducting the prior usury, is concerned, that sum should be regarded as having been purged of usury, so that it would draw interest from that date at ten per cent, as specified in the note.</p>

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

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

<p>Error to the Circuit Court of De Kalb county ; the Hon. C. W. Upton, Judge, presiding.</p>

<p>1. Assignment for benefit of creditors — Acceptance by assignee . —The possession of the deed of assignment by the assignee at any time after its execution, will constitute a presumption of his acceptance of it from the time it was executed and recorded.</p> <p>. 2. Landlord and tenant — Distraint ""fob rent. — An execution levied on goods on leased premises, prior to the distraint, takes precedence of any claim the landlord may have for the rent of the building in which the goods are kept.</p> <p>3. Statutes. — The Statute of Anne is not a part of the common law in force in this State, it having been passed since the fourth year of James I, since which time English statutes are not in force here.</p>

<p>Bailment — Right op action pob possession. — As against a wrongdoer or trespasser, the bailee, or the one having possession of personal property, has aright of action to recover either in trover or trespass, in case he is disturbed in or deprived of possession. As between such bailee and a mere wrongdoer, the former is the owner and has title to it.</p>

<p>1. Action fob damages against physician — Evidence.—In an action on the case against a physician and surgeon, to recover damages for the want of ordinary care, caution and skill in his management and treatment of a broken leg, evidence to establish his reputation as an ordinarily skillful and learned physician and surgeon is inadmissible.</p> <p>2. What is bequibed of physician. — The law does not require of physicians and surgeons the highest degree of skill, but it demands that they shall possess the ordinary skill of those engaged in the profession, and treat their patients with ordinary skill and care, and exercise their best judgment.</p> <p>3. Instructions. — An instruction that “ mere expressions of opinion by defendant to plaintiff as to the condition of his leg, and that it was doing all right, should not be considered by the jury in deciding as to whether the previous treatment of plaintiff’s leg had been proper,” was properly refused.</p>

<p>1. Habitual drunkenness. — In a suit for a divorce on the ground of habitual drunkenness an instruction that if the jury believed from the evidence that the defendant, for a period of two years prior to the beginning of the-suit, was frequently and customarily or habitually given to the excessive use-of intoxicating drink, and had during said two years or more lost the-power or the will, by frequent indulgence, to control his appetite for it,, then the defendant was guilty of habitual drunkenness, was proper.</p> <p>, 2. Same. — It was not error to refuse' an instruction to the effect that to constitute the habitual drunkenness the intemperance must be such as to disqualify him from attending to his business during the principal portion of the time usually devoted to business.</p>

<p>1. Assignment — Coll ater al security does not affect dividends.— In a voluntary assignment for benefit of creditors under the statute, where one claimant holds collateral security, but not sufficient to satisfy his entire debt, dividends should be allowed to such claimant on his whole claim, and not merely upon the ¡residue only, after deducting the value of the security held.</p> <p>2. Same — Assignee more than a mere volunteer. — While the assignee is a mere volunteer in respect to the property rights acquired from the assignor, yet he is something more than a mere representative of the assignor, in respect to the distribution of the assets of the insolvent estate.</p>

<p>1. Acknowledgment — Defective.—An acknowledgment which omits the word “ known ” is fatally defective.</p> <p>2. Foreclosure — Mortgagee in possession. — In an attempted foreclosure sale for covenants broken, which through informality or for some other reason, is ineffective to pass the legal title, the mortgagee, or his trustee subsequently in possession thereunder, will not be regarded as a trespasser, but as a mortgagee in possession, and might be required, on a bill to redeem, to account for rents and profits to the mortgagor.</p> <p>3. Same — -Attornment.—In such a case where the mortgagee claimed both the right to the rents and the control of the land, and the tenant on the land made an arrangement to hold the place for another year, and paid the mortgagee the rent for the current year, the law would in such case protect the tenant against suit of the mortgagor, and make him the tenant of the mortgagee, even without direction from the mortgagor.</p>

<p>1. Mortgage — Merger.—If a mortgage is the eldest lien, and is for an amount exceeding the value of the premises, and the mortgagee, to avoid the expense of foreclosure, takes a conveyance from the mortgagor, a court of equity will not permit the mortgaged premises to be swept away from him. by a junior judgment creditor without payment of the mortgage, under the pretense that its lien had been lost by merger.</p> <p>2. Partnership — Paving individual debts with partnership assets. — Creditors alone of an insolvent firm have a right to object to an arrangement whereby the notes and accounts of the firm are turned over in payment of a note and discharge of a mortgage held by one member of the firm against the other.</p>

<p>Appeal from the Circuit Court of Ba Salle county ; the Hon. O. Blalíchaed, Judge, presiding.</p>

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

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

<p>Error to the Circuit Court of McHenry county; the Hon. C. W. Upton, Judge, presiding.‘</p>

<p>Error to the Circuit Court of La Salle county; the Hon. George W. Stiff, Judge, presiding.</p>

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

<p>1. Breach of contract — Measure of damages. — Where contracts for the sale of chattels are broken by the vendor failing to deliver the property according to the terms, of the bargain, the general rule is that the measure of damages is the difference between the contract price and the market value of the article at the time when it should be delivered, and if at the time of delivery the article has not risen in value, the vendee, having lost nothing, can recover nothing. This rule applied to brokers and commission men.</p> <p>2. Pleading special damages. — Special damages are not implied by law, do not necessarily accrue from the injury complained of, and must be specially stated and claimed in the declaration. The declaration in this case held insufficient to sustain a verdict for special damages.</p> <p>3. Contract for future delivery. — Where the undertaking on September 20th, was for the purchase of 40,000 bushels of corn for future delivery, and under the contemplated contract the corn could not have been demanded before the last of October, and on September 22d appellants gave appellee notice that they had not purchased the corn when appellee bought on the 22cl at an advanced price, and it was claimed that appellants knew of the sale by appellee on the 19th, of 20,000 bushels of October corn (by which sale no delivery could he made before the 1st of October, and such delivery could not be compelled before the last of October), and at the time for delivery corn was lower than on the 20th, the date of the contract, held, that the damages are merely nominal, the market price being lower in October than on the 20th; that any loss appellee may have suffered from making a sale on the 19th at 55 cents a bushel in connection with his act in buying three days thereafter at 57M cents per bushel to fill such contract was occasioned by his own conduct, and did not grow out of its terms or any supposed assumption of it by appellants.</p>

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

<p>1. Compabisoh op handweitinu. — Where the question at issue was the alleged indorsement of a note by appellee, who denied the signature to be Ms, the admission ini evidence of another note and of appellee’s plea, in order to compare Ms handwriting in such papers with the alleged indorsement would be error.</p> <p>2. Ibstbucttoits. — Instructions must be based on the evidence. As there was no evidence to support the court’s modification of the instruction in question, and its effect was to mislead the jury and injuriously affect appellant, it was error to give it.</p>

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

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

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

<p>Practice. — Briefs in type-writing are not in compliance with rule 22 of this court. The briefs so written are ordered stricken from the files and the judgment reversed, pi-o forma, under rule 27.</p>

<p>1. Practice — Motion to suppress depositions. — A motion to suppress depositions made two days before the trial is in apt time.</p> <p>2. Goods sold by sample — Warranty.—In every sale of goods by sample, the vendor impliedly warrants the quality of the bulk to be equal to that of the sample, and there is no distinction between the contract as expressed in words and as implied by law, and any custom or usage which would be competent evidence to affect the rights of the parties under the warranty implied, would be competent under the same warranty expressed.</p> <p>3. Usage or custom. — No usage or custom can he set up in contravention of the express terms of a contract; but a usage or custom may add new terms not expressed in or covered by the contract, which are incidental and not repugnant to it.</p> <p>4. Board op Trade usage. — Where the usage sought to he proved had reference to the method ot dealing on the Board of Trade, with regard to the time within which inspection and objection to corn sold by sample with an express warranty that the hulk was equal to the sample should he made, held, that evidence of the custom was competent, as this point of inspection and time for objection was in no way covered by the express contract, and as the custom was reasonable and proper, and the parties, being Board of Trade members, must be presumed to have dealt with reference to it.</p>

<p>1. Negligence of hotel proprietor. — An action brought by appellee against appellant, to recover damages for an injury sustained by[appellee from falling down an elevator shaft which had been left unguarded. The premises were kept by appellant as a lodging house and appellee, his guest, while searching for a water closet in the night time, fell down this shaft. Appellant did not have the control of the elevator and never used it. Held, that it was appellant’s duty to have maintained h barrier to the entrance which led to the elevator.</p> <p>2. Practice — Admission of evidence. — It is a matter of discretion with the trial court whether a party will be permitted to give further evidence after his case has been closed and the exercise of such discretion is not ordinarily subject to review.</p>

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

<p>Notice. — Where the form, of the action or of the pleadings gives notice to the opposite party to be prepared to produce a particular instrument then in Ms possession, if necessary, to contradict the evidence of the other party, notice to produce the instrument is not required. Held, that the declaration in this case operated as implied notice to the insurance company to produce the written notice and proof of death.</p>

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

<p>1. Affidavit fob continuance. — An affidavit for a continuance, which fails to show diligence in attempting to obtain the desired testimony, is insufficient.</p> <p>2. Practice — Amendments.—Where the declaration has been materially amended, the defendant has the right to file additional pleas, and a refusal to permit him to file appropriate pleas would be error. The court inclines to the opinion, however, that this rule does not apply until the amendment is actually placed on file; that mere leave to amend does not constitute an amendment.</p> <p>3. Bill of exceptions — Presumptions.—Whenever a party has so framed his bill of exceptions as to leave room for presumptions, such presumptions must be indulged in as will support the judgment of the court below.</p> <p>4. Evidence — Guaranty—Pleading.—Where, in an action of assumpsit on a guaranty of a promissory note, objection was made to the introduction of the note on the ground of variance, it being described in the special counts of the declaration as payable generally instead of at the particular place, held, that the note and contract of guaranty were admissible under the common counts of the declaration.</p>

<p>Survival of action. — In an action on the case, for a personal injury, where the party dies before obtaining judgment, but the death is not the result of the injury, the action survives to the personal representatives, under the provisions of section 123 of the statute in relation to the administration of estates.</p>

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

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

<p>1. Common carrier — Limitation oe liability. — A common carrier can limit his ordinary liability only by a special contract, and the acceptance of a receipt or bill of lading with printed conditions, or notice limiting the carrier’s liability by the owner or shipper of goods without dissent, will not establish such a contract.</p> <p>2. Same — What necessaby to show. — In such case it is necessary to show that the shipper knew of and assented to the exemption, and such assent must be shown by other and additional evidence, and is not the subject of presumption from the terms of the receipt, alone.</p> <p>3. Agent to ship. — One who is the agent of the owner to ship or forward goods, is 'presumed to have authority to accept a receipt from the carrier containing conditions as to liability, in order to procure them to be forwarded.</p> <p>4. Lex loci — Presumptions.—If, in the Slate where a contract is made, there exists as a principle of its common law, established by the decisions of its courts, a legal presumption, arising upon certain acts of parties to a contract, which enters as a rule of evidence into their agreement, compelling or implying, Irom what they do and say, a certain inference or intention, such rule or principle of law will not be applied to the contract in the courts of another State where no such presumption exists, unless upon the trial, proof of the lex loci contractus is made, as a fact to be regarded by the court and the jury in ascertaining the contract between the parties.</p>

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

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

<p>1. Vendor and vendee — Fraudulent representations — When no consideration GIVEN. — When goods are obtained by fraudulent representations by a vendee and no money, note or other thing of value has been given the vendor for them, nothing being required to be done to put the vendee in statu quo, the vendor may, without demand, maintain replevin for the goods against any person not holding them as a bona fide purchaser for value and without notice.</p> <p>2. Trespass or trover — Rescission at trial. — When goods have been obtained by fraud, and notes or other things of value have been given in exchange for them, and the vendor seeks to obtain, not the possession of the goods by replevin, but the value of the goods in an action of trespass or trover for the conversion, then the consideration received by the vendor med not be tendered back before action brought, but may be tendered back o i the trial, and the rescission so made at the trial will be in apt time, and in such case no prior demand need be proved to sustain the trover count.</p> <p>3. Replevin — Rescission—Demand.—But if goods are obtained by fraud and the vendor receives a consideration of any kind therefor from the fraudulent vendee, before he can maintain replevin for the goods, he must return or offer to return to the vendee, the consideration, whatever it may be, before bringing suit, and having done so and thus rescinded the contract, the original taking will, in law, be regarded as tortious and no demand n ;ed be made for the goods. If, however, the goods are taken on a replevin writ, without the contract having been rescinded by placing the vendee in statu quo, yet a return will not be awarded if plaintiff makes out his claim of fraud and the consideration is tendered back on the trial, but in such case the plaintiff will be subjected to the costs.</p> <p>4. Same. — The sheriff set up title to the goods in the alleged fraudulent vendee and claimed the right to hold them under his execution. Held, that the plaintiffs, vendors, were not entitled to maintain their replevin suit, not having rescinded the contract and tendered the vendee his note prior to the commencement of the. action, and this wholly irrespective of the question of demand, and the jury having, on the plea of property, found the title in the defendants, they were entitled to a retorno.</p>

<p>Contract — Patent improvements. — Under the evidence the court and jury were justified in holding that the defendant, in manufacturing and selling the reels with the improvements, was acting under his contract with the plaintiff, and bound to pay him the royalty therein provided.</p>

This was an action of replevin by the appellant against the appellee. Declaration m the cejoit and detioiei. Pleas own cejoit, own detvnet. Property in defendant and a special plea denying the assignment of a promissory note in controversy. Trial by the court without a jury by consent; finding not guilty; writ of retorno hdbendo awarded with costs.