Volume 2 — Illinois Appellate Court Reports

<p>1. Practice in Appellate Court—Errors to which no exception was taken, not noticed.—Errors assigned in the Appellate Court to the action of the court below in admitting and excluding evidence, will not be noticed, where no exception was taken to the same by the appellant. •</p> <p>2. Verdict against the weight oe evidence.-—In this case the court finds the verdict of the jury so cleai'ly against the weight of the evidence as to be sufficient ground for a reversal.</p>

<p>X. Husband and wife—Agency of husband.—The statute of this State in relation to the property rights of married women, does not allow the wife to appropriate the results of the husband’s skill and labor in a business carried on in her name, to the exclusion of the rights of the husband’s creditors.</p> <p>2. Property purchased by wife.—Where it appears that the wife borrowed" the money with which to purchase material and engage in business, the business being carried on by her husband as her agent, and repaid the money borrowed out of the proceeds of the business, earned by the skillful labor of the husband, it cannot be said that she derived the property from a source other than that of her husband. The transaction will be regarded as an attempt to do indirectly that which is forbidden by the statute to be done directly.</p>

<p>1. Evidence—Proof of discharge in bankruptcy.—The pleadings put in issue the fact of a discharge in bankruptcy, and to establish that fact, appellant offered in evidence the deposition of the clerk of the District Court of the United States, to the effect that appellant filed his voluntary petition in bankruptcy in that court, and the destruction of the files and records by fire. A memorandum of the register in bankruptcy of his final report in the case was also offered in evidence, and the appellant testified that he had received a certificate of his discharge, and that the same was lost. Held, in the absence of proof to the contrary, that the discharge in bankruptcy was sufficiently proven.</p> <p>2. New promise.—To the plea of discharge in bankruptcy, the plaintiff replied a new promise, and a demurrer was sustained to such replication. The replication to the plea of new promise put in issue a fact, as such promise, if made, was a waiver of a defense which the law otherwise permitted the defendant to make, and should have been tried. It was error to sustain a demurrer thereto.</p>

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

<p>1. Wager—Stakeholder.—A stakeholder is in no sense a party to the illegal contract, or in pari üelictu. He is a mere depositary of both parties respectively, with a naked authority to deliver over on the happening of the proposed contingency. If the authority is actually revoked before the money is paid over, it remains a naked deposit to the use of the depositor.</p> <p>2. Recovery of money deposited.— It has been held, under the statute of lt:45, that the loser of a draft in gambling can recover the same of a party who had purchased it from the winner in good faith. The statute of 1874, in relation to gambling, is broader than the former statute, and most certainly allows a recovery from the stakeholder of the money deposited</p> <p>3. Recovery of interest not allowed.—The statute limits the recovery in such cases to the money lost, with costs, and interest on the same cannot be recovered.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edwin S. Leland, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Josiaii MoBoberts,' Judge, presiding.</p>

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

<p>1. Statute or limitations—Money received by collecting agent. —Where a party receives notes for collection, and collects the amount due thereon, it is his duty to pay over as soon as the amount due upon any one note is collected, and his principal can have an action therefor, as to the money received, against him on his refusal to pay it over, and the Statute of Limitations begins to run from the time the money was received.</p> <p>2. Collections not a trust fund.—The sums so collected do not constitute such a trust as will save the bar of the statute. To exempt a trust from the bar of the statute, it must be, first, a direct trust; and second, it must be of a kind belonging exclusively to the jurisdiction of a court of equity; and third, the question must arise between the trustee and the cestui qui trust.</p> <p>3. New Promise.—A promise to pay what is due, if anything, at the same time insisting that nothing is due, is not sufficient to take the case out of the statute.</p>

<p>Appeal from the Circuit Court of Grundy comity; the Hon. Josiah McEoberts, Judge, presiding.</p>

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

<p>1. Cokteact foe sebvices—Coestbuctioe.—Appellee entered into the service of appellant under a written contract, providing, among other things, in a rule of the company, which was made a part of the contract, that “ any employee wishing in good faith to leave the company’s service, may do so at any time without giving previous notice.” Under the provisions of this rule the right of appellee to quit appellant’s employ before the expiration of his term of service is unquestioned. Language contained in another portion of the contract, “that he would not stop work,” etc., cannot, in the light of the whole contract, be so construed as to make it an entire contract.</p> <p>2. Quitting in good faith—Evidence bearing upon that question.—The good faith of appellee in leaving the employ of the company, is presumed until the contrary is shown, yet the motive which induced him to this action is a matter to be fairly submitted to the jury, and hence the question asked a witness, whether he knew of appellee’s joining any strike or combination for the purpose of causing the company to pay him or other miners an advance in wages, was proper, and an answer should have been allowed.</p> <p>3. Practice—Instructions not all appearing in the record.— The objections raised by appellant of the refusal by the court to give instructions asked, cannot prevail, because, although the instruction refused may have substantially embodied the law applicable to the case, yet as the same principles may have been announced in other instructions given by the court, but not incorporated in the bill of exceptions, it is impossible to say that there was error in its refusal.</p> <p>4. Damages caused by leaving service—Recoupment.—The refusal of the court to permit testimony as to the damage occasioned to appellant by appellee leaving before the expiration of his time of service, cannot be considered error, for if appellant left in bad faith, he could not, under his contract, recover for any unpaid service, and recoupment would be unnecessary; and if he left in good faith, recoupment could not be allowed, because any injury the company may have sustained after the termination of the contract would not he the subject of recoupment, since it did not grow out of the same transaction.</p>

<p>1. Excavation in streets — Rights op adjoining owner.—The distinction between the case of an excavation made in a street, and one made by an individual upon his own adjoining land, as respects the right of recovery by the owner of abutting premises, is that such owner has the legal right to use the street; his right of ingress and egress is disturbed, and he may have damages therefor; while if the adjoining proprietor excavates upon his own land no harm is done unless his neighbor’s lot has been disturbed thereby.</p> <p>2. Statements op counsel to jury.—The court intimates that if it appeared in the record, as claimed by appellants, that counsel for plaintiff in his ai-gument to the jury, told them that “ what they ought to do was to award to the plaintiff the amount of the old verdict, and enough more to make plaintiff whole for the trouble and expense occasioned by the new trial,” it would be inclined to reverse for that cause.</p> <p>3. Evidence—Bias op witness.—It is competent, in cases of this kind to show the bias or feeling of witnesses, and in what direction are their sympathies, and questions tending to show a sympathy with one of‘the parties to a cause are proper, and should be allowed.</p> <p>4. Limit op recovery.—An instruction asked by the defendant, that the jury “ should not allow any damage to the plaintiff for any injury done to his premises by the grading of Bridge and Jackson streets, before the 8th day of August, 1870,” should have been given, and itwas error to refuse it. For any injury before that time because of excavations near to, but not on the lots of appellee, there was no remedy.</p>

<p>Appeal from the Oircu.it Court of Livingston county; the Hon. H. J. Pillsbuby, Judge, presiding.</p>

<p>Evidence—Op fraudulent transactions with other parties not admissible.—-Appellant brought replevin for crops levied upon under an execution against her son. On the trial, evidence was permitted to be given tending to show that the son had given a chattel mortgage upon his personal property to his brother, for the purpose of hindering his creditors, and that it had been foreclosed under circumstances that indicated its fraudulent character. The record failing to show that appellant was in any way connected with it, or had any knowledge of its consideration or object, such evidence should have been excluded. It is not even presumptive proof that another and different transaction with other parties is alike fraudulent.</p>

<p>1. Replevin—Declabations op ownebship bt the debtob.—In replevin for property levied upon by virtue of an execution, evidence was permitted of declarations of ownership of other property, by the judgment debtor made to the constable at a time when other executions were presented for payment. The declarations were not made in the presence or hearing of the claimant of the property, nor does it appear that they were made before or after the alleged sale to the claimant. If such declarations were made before the sale, the testimony was irrevelant; if after, it was improper. The judgment debtor cannot by bis own declarations create the evidence upon which the property might be applied to the payment of his own debts, after he had once disposed of it to the claimant.</p> <p>2. Question op pbaudulent sale—Instbuction—Law and pact.— Instructions asked by the plaintiff, wherein the question whether the gift or sale to the claimant was fraudulent, intended to hinder or delay the creditors of the judgment debtor, were properly refused. Instead of the law being stated by the court, both the law and the fact was left to the consideration of the jury.</p> <p>3. Questions op law in instbuctions.—Instructions leaving the jury to settle questions of law, undirected, are erroneous.</p> <p>4. Instructions not referring to the property in suit.—The qualifications attached by the court to the instructions given, were on a collateral subject, and did not apply to the hay and grain, the property in suit. The use of the farm may have been fraudulently given, and the sale of the chattels mentioned in the instructions might have been fraudulent, and yet the renting of the farm may have been fair and honest, and the hay and grain have been raised by the claimant and her husband. The instructions, to say the least, were inapplicable to the controverted facts in issue, and calculated to mislead.</p>

<p>Appeal from tlie Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding.</p>

<p>Submission and award — Pleading—Non bst factum.—Plaintiff brought suit upon an award of arbitrators, and in his declaration counted upon a written submission, and made profert thereof, to which defendant filed a plea denying that such submission was. ever made by defendant. Plaintiff demurred to the plea. 3eld, that the plea presented a good defense. The demurrer admitted the truth of the facts alleged in the plea, and if there was no submission the award was not binding. Where the action is upon an award it is necessary to allege a mutual submission.</p>

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

<p>1. Suit on replevin bond—Breaches.—Appellees executed a bond in replevin, conditioned, first, to prosecute the suit with effect; second, make return of said property, if return thereof be awarded; and third, save and keep harmless the officer in replevying the same. Upon the impaneling of a jury to try the replevin cause, the plaintiff took a nonsuit. This was a clear breach of the first condition in the bond.</p> <p>2. Damages for not returning property—Proof of.—On the trial in Circuit Court for damages, by reason of a breach of the conditions of the bond, the fee-book showing the taxation of defendant’s costs before the justice, was offered in evidence and excluded. This fee bill included items, as costs, for service and return of writ of retorno, etc. If there was a breach of the bond in not returning the property, plaintiff should have been allowed to show the costs incurred in getting the property back, if not all the other items in the bill of costs, and the court erred in excluding the fee bill as evidence.</p> <p>3. Costs on writ of betobno.—The costs of a writ of retorno hdbendo are not the recovered costs in the judgment, but costs accruing after, of enforcing the judgment, and such costs are recoverable under a breach of the second condition of the bond mentioned.</p> <p>4. Recovery of all costs in the replevin suit.—Under the first breach, and perhaps under the others, the costs which the defendant recovered by reason of the failure to prosecute the replevin suit with effect, may be recovered.</p>

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

<p>Assault and batteey.—Appellee commenced a quarrel with appellant and assaulted and beat him so that he was unable for several weeks to attend to his ordinary business. The record fails to show any evidence justifying the assault, and the verdict is so manifestly against the weight of evidence as to require a reversal. Under the evidence, appellant has sustained and should receive substantial damages.</p>

<p>1. Malicious prosecution—What will be considered in such actions.—In cases of malicious prosecution, the question is not whether the plaintiff he really guilty of the crime charged, but whether, under all the circumstances in proof, the defendant had reasonable ground to believe him guilty.</p> <p>2. Probable cause—Motive immaterial.—In this case the appellant found a person fainting from the effects of a wound upon the head; was told that appellee had inflicted the wound; the physician present was unable to tell how serious the wound might prove, and the appellant, on being advised by the physician and an attorney whom he consulted, swore out a warrant for the arrest of appellee. Under the circumstances, appellant was fully justified in taking such a course; there was probable cause, and where this exists, the motive of the prosecutor is immaterial.</p>

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

<p>1. Garnishment—Administrator not subject to, before order of distribution.—An administrator of an estate is not liable to process of garnishment for moneys in his hands as such, before any order of distribution has been made directing the manner of payment.</p> <p>2. General rule.—If the judgment debtor could not recover against the garnishee in a suit by him alone, the judgment creditors suing in his name for their use, must necessarily fail in a proceeling to subject the fund to the payment of their debt.</p> <p>3. Change of liability—Acceptance of order.—It appeared that prior to the garnishee proceedings, the garnishee had received a letter inclosing an order from the judgment debtor to pay the balance coming to him, to his brother, the writer of the letter, and the garnishee had replied that he would do so as soon as he could raise the money. This was a virtual acceptance of the order, and an entire appropriation of the fund beyond the reach of the judgment debtor. In so accepting the order, the garnishee ceased to ■be indebted to the judgment debtor, and was therefore not liable to be garnisheed on his 'account.</p>

<p>1. Mandamus—Requisites of petition.—In a petition for a mandamus, the relator must show'a clear right to have the very act done, the performance of which is sought, and by the person sought to be coerced.</p> <p>2. Taxing illegal fees—Duty of the justice.—Only legal costs are taxable, and before a justice can be compelled to tax costs, it must appear that the fees are proper under the statute. Although the justice may have rendered judgment for illegal costs, he can refuse to issue execution therefor, and if execution has issued, and he should afterwards discover that the costs were illegal, it would be his duty to recall the execution.</p> <p>3. To compel a justice to issue execution.—It was sought to compel a justice of the peace to issue an execution for costs claimed to be due the relator, as shown by the returns on the process. Some of the returns include illegal costs, and therefore, the relator was asking more than he was entitled to receive under the law.</p>

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

<p>Limitation after Judgment.—The record she wing that by the pleadings an'issue to the jury was formed upon the question whether the present action was not barred by the statute limiting the time in which to commence actions after reversal, and there being sufficient evidence upon that point to support the verdict, it will not be disturbed.</p>

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

<p>1. Consign,ok and consignee—Change of consignee.—The rule that while property is in transit a consignor may change the consignee, or other'wise direct a disposition of the property according to his will, does not apply •to-cases where such property is consigned to one who has advanced money with which to purchase the property .consigned, in pursuance of an original agreement to so consign it. In such a case the delivery to the carrier amounts to a delivery to the consignee, and from the time of such delivery the right-of the consignee becomes vested.</p> <p>2. Consignment to factob to sell mat be changed, when.—Where .property is consigned to a factor for the purpose of sale, the consignor may at any time before actual delivery to the factor, change its destination, and 'direct its delivery to another; but where the factor makes advances or incurs liability on the strength of such consignment, he is entitled to reimburse him.self for such advances out of the proceeds! of such sale, and the consignor has no right by any subsequent order to suspend or control such sale, except 'as, respects any surplus not necessary for the reimbursement of such 'advances. ■</p> <p>3. Bights of third parties hating notice of consignee’s claim.— In this" case- the 'consignment to appellants was changed to a consignment to the cashier of a hank at Streator, with the knowledge hy the officers of the hank of appellant’s claim. This being so, the bank is in no better attitude to dispute the right of appellants than the consignors themselves have.</p>

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

<p>Appeal from the Circuit Court of Cook 'county; the Hon. E. S. Williams, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding</p>

<p>1. Principal and agent—Signing as agent.—The particular form of executing a contract not under seal, by an agent, is not material if it indicates a ministerial act on the part of the agent. So an order signed “ Simeon W. King, for A. & R.,” is a good execution of the order for the purpose of binding the principal. It is obvious from the signature, that it was neither given nor received as the order of King, but as the order of A. & R.</p> <p>2. Parol proof .of agency.—It was competent to show by parol that at the time the order was made, appellant was acting as tne agent of A. & R. in making the order, and so informed appellees.</p>

<p>1. Guaranty of note—Authority of partner to guarantee in firm name.—A partner has no authority by virtue of the partnership relations to sign the firm name for any purpose not connected with the partnership business, and he cannot, without express authority from his partners, bind the firm as guarantors of commercial paper not given in the course of the partnership dealings.</p> <p>2. Rights of bona fide holders—Presumption.—Third persons becoming holders in good faith of negotiable paper executed by a firm, are entitled to the presumption that such paper was executed in the course of the partnership business, and upon competent authority, unless notified to the contrary, or put upon inquiry as to the want of power in the partner to bind his firm.</p> <p>3. Notice of want of power.—If on the face of the paper it appears that the firm purports to execute, it not as a principal, but as a mere stfrety or guarantor for some other person, the party taking the paper has actual notice of the fact that it is not signed in the ordinary course of the partnership business, and he must at his peril ascertain that there was a special authority given the partner to use the firm name, as such guarantor, or that the paper was in fact given in the course of the partnership business.</p> <p>4. Individual note of partner.—So, where a note was signed by one partner in his individual name, and by him guaranteed in the firm name, the character in which he undertook to bind his firm appeared on the face of the paper itself, and a subsequent holder of such note takes it with notice that he was seeking to hind his firm as guarantors, and that such undertaking was not in the course of the partnership business.</p> <p>5. Ratification by firm—Waiver of protest is not.—The fact that the other member of the firm, when the note was presented for payment, endorsed thereon a waiver of notice, protest, etc., for the purpose of saving expense, cannot be considered as a ratification or adoption by the firm of the unauthorized act of the partner in making such guaranty; nor is the failure to make prompt denial of firm liability, on such note being presented for payment, sufficient to establish a ratification, or an admission of liability.</p>

<p>1. Divorce—Granted on cross-bill of non-resident defendant.— Where a party complainant, who has resided in this State, over one year, files his bill for divorce, the defendant, though a non-resident, may file a cross-bill in said cause, and pray therein for a divorce from the complainant, although she has not resided in this State for more than a year prior to so suing for divorce.</p> <p>2. Nature of cross-bill.—A cross-bill being considered as a defense to the original bill or a proceeding necessary to a complete determination of a matter already in litigation, the complainant is not required, as against the complainant in the original bill, to show any ground of equity, in support of the jurisdiction of the court.</p>

<p>1. Trespass—Acquittal op co-dependant—Transcript op such judgment as evidence. — In a former suit against appellant and one Cornwall for an alleged trespass, Cornwall was adjudged not guilty, and thereupon appellee dismissed such suit as to appellant. To the present suit appellant pleaded, among other things, that the alleged trespasses were the identical trespasses mentioned in the former suit, etc., and were claimed to have been committed by Cornwall as the agent of appellant, but which, if done, he had no authority, etc. from appellant to do. The transcript of the record in the former suit was offered in evidence and excluded. Held to he error.</p> <p>2. Judgment in pavor op co-dependant.—Although, in actions of trespass, a judgment against one defendant is no bar to an action against another, yet judgment and payment thereof would he, and the record would be admissible to prove the judgment. For similar reasons the record of acquittal of one defendant, is admissible in an action against another, in connection with proof that the latter is sought to be charged for the same acts only by virtue of his relation, as principal, to the former. Where the real actor, none the less liable personally because acting for another, is not guilty, it necessarily follows that the party for whom he acted cannot be. The principal can be no more guilty by reason of the act of his agent than if he had committed the act in person.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.</p>

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

<p>1. Lease—Agreement to pay assessments.—A condition in a lease that the lessee shall “pay all assessments whatsoever levied,” etc., on said premises, does not bind him to the payment of State, county and city taxes for general purposes.</p> <p>2. “Assessment” does not include general taxes.—The word assessment is often used to signify a proceeding which includes taxes, hut in the above connection it was used as a proper, specific designation of the charges upon the property, and in that sense it does not include taxes for general purposes.</p> <p>3. Meaning established by usage.—The popular understanding of the use of the word assessment refers it specifically to those charges imposed upon real property by the city to defray the expense of local improvements, in proportion to the benefits received, and this distinction between assessments and taxes is observed in the enactments of the legislature. The contract in this case is to he construed in the light of the legislation and usage of this State, and these having affixed a definite meaning to the term, the parties are conclusively presumed to have so employeciñit.</p>

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

<p>1. Savings bank—A trustee for depositors.—A savings bank is any institution in the .nature of a bank formed for the purpose of receiving deposits of money for the benefit of the depositors; such deposit and the produce thereof, except so much as shall be required for the necessary expenses attending the management of the bank to be returned to the depositors. A bank of such a character would be a mere trustee for the depositors, and its entire funds, whether made up of the deposits themselves, or of the interest, gains and accumulations thereof, would be trust funds held for the benefit of the depositors. The depositors, in a sense, become members of the corporation and its officers mere trustees for their benefit.</p> <p>2. Joint-stock corporation doing a savings bank business—Rot a trustee for depositors.—A joint stock corporation organized for the purpose of doing business on account of and for the profit of its shareholders, and where the gains and profits belong to the shareholders, although receiving savings deposits on which it agrees by contract with the depositor to pay a certain rate per cent, interest, is not a savings bank in the true sense of the term, and does not become a trustee for such depositor.</p> <p>3. Rights of stockholders.—A bank organized as a joint stock company could not go into operation until possessed of capital stock as required by its charter, and it must be assumed that all who subscribed for and became owners of its stock, acquired all the rights which the law ordinarily gives to stockholders, and the funds, accumulations, and profits of the corporation were held by it in trust for the stockholders and not for the depositors, in the absence of trusts expressly assumed, or arising from special circumstances.</p> <p>4. Relation between a bank and its depositors.—The ordinary relation existing between a bank and its depositors is that of debtor and creditor, and no fiduciary relation as to money deposited arises unless by virtue of some provision in the charter or by-laws of the corporation.</p> <p>5. As to the funds in suit.—A by-law providing that “ all savings deposited in this bank * * * * shall be invested in the stocks and obligations of the United States, or the State of Ulinois, etc,” even if viewed in the light of an express contract, merely pledges the corporation to invest the savings deposited in certain specified securities. It entirely fails to declare whether such investments shall be made on account of the depositors, or on account of the corporation itself. Unaided by something aliunde, however, it does not fix the character of the funds deposited as trust funds,'"or create the relation of trustee and cestui que trust.</p> <p>6. Savings deposit not a trust fund.—By other provisions in the bylaws of this corporation, a specified rate "of interest was to be paid on savings deposits, and the bank became obligated for its payment, without regard to whether the same was realized from the investment of the money by the bank; the depositor might under certain stated regulations withdraw his deposit, and this right existed without reference to the condition of the investment at the time. Had the securities been lost or destroyed without the fault or negligence of the bank, it would still have been liable to the depositors for the full amount of their deposits, and might have been compelled to pay the same. All these considerations inevitably lead to the conclusion that the true relation between the bank and its savings depositors was that of debtor and creditor.</p> <p>7. Evidence as to origin of the fund in suit.—The record in this case fails to disclose any evidence that the money used in the purchase of the securities in suit, actually arose from or was taken out of the savings deposit fund arising from the deposits made by original savings depositors. It also fails to show that any of the persons who were depositors at the time the bank failed, were such at the date of the execution of the deed of trust in question.</p>

<p>• Appeal from the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gr. Eog-ebs, Judge, presiding.</p>

<p>Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, J udge, presiding.</p>

<p>I. Pbincipal and agent—Execution op autuobity.—An agent is bound to pursue the instructions of his principal, and if he deviate therefrom, although with a view to his employer’s interest, he is answerable for any consequent injury. If loss ensue, it is no defense that he intended to benefit his principal, and if he makes a profit thereby he must account to his principal for the whole, notwithstanding he bore the risk of failure.</p> <p>2. Principal should disaffirm within a reasonable time.—It is no doubt incumbent upon the principal to disaffirm the unauthorized act of his agent within a reasonable time after notice thereof, but what is a reasonable time is a question of fact to be determined from all the circumstances of the case.</p> <p>3. Reasonable time in this case.—In this case, appellants by their telegram of Dec. 6th, led appellee to suppose that their purchase for him had been made according to his instructions, and their letter by mail containing explanations to the contrary did not reach appellee’s residence until Dec. 9th. On Dec. 8th, appellee left home on business and did not return until Dec. 16th, when he first received appellant’s letter of explanation, and at once notified them of his disaffirmance of their acts. Under the circumstances this was done within a reasonable time.</p> <p>4. Evidence that purchase was advantageous.—On the trial appellants offered evidence tending to show that the purchase made was just as advantageous to appellee as the one ordered. This evidence was properly excluded. It offered no excuse for a departure from the instructions, that the thing substituted was as valuable as the thing ordered.</p>

<p>Practice—Suit on appeal bond—Amending pleas—Terms mat be imposed.—Suit was brought on a bond for appeal to the Supreme Court. The bond contained the usual conditions for payment of the debt on affirmance of the judgment appealedfrom. The judgment was reversed in Supreme Court, but on a re-hearing was affirmed. To the suit on the bond, defendant plead nil debit to which a demurrer was sustained. Leave was granted defendant to file amended pleas, on condition that he prepare his amended pleas with affidavit showing a meritorious defense, and submit them to the court. Defendant then filed a plea that the judgment had been reversed, with affidavit that the plea was true. This plea was had in that it did not traverse the allegation of plaintiff that the judgment had been affirmed, and it was not error for the court to refuse to allow such plea to he filed.</p>

<p>1. Injury from passing train—Contributory negligence.—Where one knows a railway train to be approaching, which may injure him if he attempts to cross the track before it, the slightest care for his own safety requires him to wait for it to pass. So, where it appears that the deceased was acquainted with the way in which the trains were run, and saw or might have seen the whole situation precisely as it was, but in her eagerness to secure a passage on the train, attempted to cross the track and was struck, there was gross neg-ligence on her part. In such case the absence of the flagman from his post, or the failure to give warning of the approaching train by bell or whistle, is not such willful or wanton negligence on the part of the railroad company as to charge it with responsibility for the accident.</p> <p>2. Measure op damages.—If the company were liable at all, it would he only for the actual pecuniary damage suffered by the next of kin in the death of the person injured.</p>

<p>1. Practice—Appeal prom a justice—Summons to Appellee.—Where, on appeal from a justice of the peace, the bond for appeal is filed with the clerk of the appellate court, and approved by him, summons should be issued to appellee and returned, as required by statute, or his written appearance must be entered therein, before the appellate court can acquire jurisdiction of the cause.</p> <p>2. Erroneous dismissal op appeal.—There having been no service upon the appellee, nor a return of two minis, nor an appearance entered by the appellee in the manner authorized by statute, the court to which the appeal was taken had no jurisdiction to make any order in the case, and it was error to dismiss the appeal on the call of the docket, or to do any act other than to continue the case until the court acquired jurisdiction.</p>

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

<p>1. Judgment by confession—Power of court to set aside—Good, defense must be shown.—In cases of judgment by confession on a warrant of attorney, it is competent for the court, upon a proper showing being made, to so far vacate such judgment as to permit the parties to defend the same; but it is error to allow such right to defend on motion, unless upon the face of the record, or by some other showing, as a foundation of such motion, it shall appear, prima facie at least, that the defendant has a defense in whole or in part, upon the merits.</p> <p>2. Presumption—Error in dismissing suit.—The warrant of attorney not appearing in the record in this case, the court will presume that it was sufficient to justify the court in entering such judgment.- There being no affidavits or other showing of a meritorious defense in support of the motion, it was error to vacate such judgment and dismiss the suit.</p>

<p>Trespass—Failure to prove a joint trespass.—Where the evidence fails to show that all of the defendants were implicated in either of the alleged trespasses, a verdict against all jointly cannot be sustained.</p>

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

<p>1. Sureties on official bond—Offer to show that deficit arose at preceding term: of office—Estoppel.—Where the official report of the city treasurer, made under oath, in pursuance of law, showed a balance of cash in his hands belonging to the city, at the commencement of his second term as treasurer, the sureties on his official bond for that term are estopped to deny that the amount as shown by such report was not in fact so held by him.</p> <p>2. Signing blank bond—Subsequent filling in of blank spaces— A material alteration.—The instrument signed by the sureties was a printed form of a bond, with blanks for inserting in the body the names of the sureties, amount of penalty, office to which the principal was elected and date of election, etc. These blanks were afterwards filled up by the city officials, without the knowledge or consent of the sureties. Held, that as to the ■sureties the bond was absolutely void. 1 •</p> <p>3. Notice to city that bond was signed in blank—Knowledge of city clerk.—The city clerk was, by the charter of incorporation, made the custodian of the official bonds, and the person to whom they should be delivered, and knowledge by him that the bond in suit was signed in blank, is notice to the city of that fact.</p> <p>4. Failure to file bond within required time — Vacation of office.—The statute requiring the city treasurer to take the oath of office and file his bond within fifteen days after his election, is mandatory, and a failure to file such bond within the required time is a vacation of such office, and reheves the sureties from liability on the bond.</p>

<p>1. Sale bt debtob to cbeditob—When not ebatjdulent.—A debtor lias a right to prefer one creditor over all others, and he may sell his property to such creditor, where no lien exists to forbid it; and if the transaction be an honest one, made in good faith, for an adequate consideration, it matters not how many creditors may be prevented thereby from reaching the property. A creditor violates no rule of law when he takes payment of his demand, though other creditors are thereby deprived of all means of obtaining satisfaction of their own claims.</p> <p>2. Possession remaining in debtor.—S. loaned to T. money to carry on his business, with an understanding that the articles manufactured by T. were to be the property of S. until the loans were paid, the manufactured articles remaining in the possession of T. So long as there was no actual delivery of the property to S., it remained, as to third persons, the property of T., and subject to attachment or exeeution for his debts.</p> <p>3. Change op possession—Lien of execution—-Presumption.—There being nothing in the record showing when the execution was received by the . sheriff, it will be presumed that it was delivered to him on the day a levy was made. The attachment having previously been dissolved, the defendant had the absolute power of .disposition over his property up to the time of the levy, and S. having before that time taken possession of the property in good faith in payment of his debt, he is entitled to the benefit of the preference thus obtained.</p> <p>4. Purchase of property attached.—The purchase by S. is not affected by the fact that at the time of the purchase there was a hen by attachment upon the property; such purchase was necessarily subject to the attachment lien, and that hen being defeated by vacation of the attachment, the rights of S. remained unaffected by it. Nor is such purchase while the attachment remained, any evidence of fraudulent intent on his .part to defeat the creditors of T.</p>

<p>Appeal from the Superior Court of Cook county.</p>

<p>Motioh fob hew tbial—Newly discovebed evidence.—The principal item for which judgment was rendered was $100, claimed to have been loaned to appellant. Upon this point appellee testified that he gave appellant the check of third parties for that amount, which appellant afterwards endorsed, and procured to be cashed, and retained the money. This appellant denied. On a motion for new trial, appellant offered to' show, by proper affidavits, that the check was in fact loaned to another party, and admissions of appellee that he had loaned such party money, and also produced the check in evidence, showing that there was no endorsement thereon by appellant, and that he did not know of such evidence at' the time of the trial. Held, that such testimony was vital 'to appellant’s rights, and presented sufficient grounds for a new trial.</p>

<p>1. Construction of wills — Execution of trusts by a court of chancery.—It is a general principle that courts of equity carry trusts into execution only when they are certain and definite in their character; and if a trust is created which by its terms is so vague and indefinite that a court of equity cannot clearly ascertain either the objects or the persons who are to take, such trust will entirely fail, and the property will fall into the general funds of the author of the trust.</p> <p>2. Exceptions to the rule—Charitable bequests.—Trusts for charitable purposes, however, will be upheld although expressed with great generality and vagueness, but this exception is strictly limited to trusts for charity; and in order to give them validity, the language employed must require that the fund be expended for some charity according to the legal signification of the word, and for nothing else. So if the language of the gift leaves to the trustee a discretion to expend the fund for a purpose non-charitable, or for purposes partly charitable and partly non-charitable, it will not be upheld.</p> <p>3. Meaning of the word “ charity ’’—Statute of Elizabeth in force in this state.—The word “ charity ” in its widest sense, denotes all the good affections which men ought to bear towards each other, and in this sense it embraces all that is usually understood by the words benevolence, philanthropy and good will; but the statute of 43 Elizabeth, commonly known as the statute of Charitable Uses, is in fore? in this State; and one of the results accomplished by it being the establishment of an enumeration or kind of definition, standard or test, to which all gifts and grants in trust could be brought in order to determine whether they were charitable, no bequests, since that statute, are deemed within the authority of chancery and capable óf being established and regulated thereby except for purposes within the enumeration of the statute, or which by analogy come within' its spirit and intendment.</p> <p>4. Rule for construing charitable bequest.—In giving construction to the language of a will containing a charitable bequest, if it be found that the testator devoted his bounty definitely and entirely to charity, according to the legal signification of the word, leaving to his trustees no discretion to devote the fund in any event to a purpose not charitable, it must be upheld as a bequest to charity, notwithstanding the uncertainty and indefiniteness of the beneficiaries; but if, on the other hand, there appears to have been a purpose to vest in his trustees a discretion to devote the fund, in any event, or under any circumstances, to a purpose not included within the legal definition of the word, such bequest is too uncertain and indefinite to be upheld.</p> <p>5. Statement—Language of the bequest.—The testator, by the sixth clause of his will, directed that fifty thousand dollars be invested, the increase thereof to be paid to his son during his lifetime, and on the death of the son, the principal sum to descend to his children, “ if he have any, but to the charitable institution hereinafter mentioned (or such other charitable institution as my executors shall designate), in case my said son shall die without issue.” By the ninth clause of said will, the residue, after payment of legacies mentioned was given to certain persons therein named, “ in trust, the same to be by them applied and devoted to the founding or endowing * * * of such a charitable or other institution as in their opinion * * * is most needed * * * and if they shall be unwilling, or deem it expedient to organize a new charity, they may duly certify the same to my administrators or executors, who shall then pay over the same to the lawful managers or trustees of ‘ The Home for the Friendless, ’ in said city of Chicago.”</p> <p>6. Construction.—As to the bequest mentioned in the ninth clause, held, that there is a clear and manifest intention to vest the trustees with a discretion to devote the fund to a charitable or non-eharitable purpose, and that such bequest, so far as the trustees are concerned, is void for uncertainty; and that the same indofiniteness pervading the bequest in the hands of the trustees, extends to and vitiates the provisions of the same clause relating to the Home for the Friendless; and such bequest cannot be enforced by a court of chancery.</p> <p>7. Doctrine of cy pres.—Neither can such bequest be supported under the doctrine of cy pres, for it is not a case of a bequest to charity and a failure of the particular mode in which that charity is to be effected. The doctrine of cy pres cannot be resorted to for the purpose of modifying and restraining the intention of the testator, but where there is an express devise to charity and a failure in the mode of its application, the court under the cy pres power will substitute another mode of devoting the property to charitable purposes.</p> <p>8. Construction of sixth clause.—As to the bequest mentioned in the sixth clause, held, that the manifest intention of the testator being to devote the devise to charity, and nothing else, and a charitable institution—The Home for the Friendless—being named in the will, the executors, in the event of the son dying without issue, might give such bequest to that charity, or select another; that it is a valid bequest to charity, and should be sustained as such.</p>

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

<p>Error to the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding. 1</p>

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

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

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

<p>1. " Separate maintenance—Alimony pendente lite.—In proceedings under the statute, by a married woman for a separate maintenance, alimony pendente lite should not be allowed. The sole object of the suit being for alimony or the obtaining of a sum of money for separate maintenance, such relief should be granted only upon a full hearing of the cause. It was not the intention of the legislature that the relief provided by this statute should be obtained on a preliminary motion made in the progress of the case, and which has the effect of shifting the burden of proof.</p> <p>2. Attorneys’ pees—Presumptions .—The allowance of fees to complainant’s solicitor, was a preliminary finding by the court which it had a right to make, and in the absence of any showing that such allowance was excessive, this court will indulge the presumption that the court below had before it such facts and circumstances as warranted the order in that respect.</p>

<p>Vekdict against evidence.—Appellee brought suit against appellant for a balance claimed to be due for work on a house, done under a special contract, and for extra work. Appellant defended on the ground that the work was not well done, whereby damage had ensued to him, and as to the claim for extra work, pleaded the Statute of Limitations. This court finds from a review of the testimony, that the preponderance of evidence showed that the work was so unskillfully done as to result in damage to appellant, which he was entitled to have set-off against appellee’s claim, and that the claim for extra work was barred by the statute. The verdict being against the weight of evidence, a new trial should have been granted.</p>

<p>Doweb—Assessment by joey.—In a proceeding for dower, where the ■commissioners report that the premises are not susceptible of division, and a jury is empaneled to inquire of the yearly value of the dower therein, the verdict of the jury is like the finding of a fact at law; is alone the foundation of the decree, and is binding upon all the parties until vacated and set aside by the Court. It is not like the trial of a feigned issue out of chancery which the Court may approve or reject in whole or in part, as may appear to him most equitable.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. W. IL McAllister, Judge, presiding.</p>

<p>1. Railroads—Running at prohibited speed—Contributory neg ligence.—Apart from the provisions of the statute, that railroads running their locomotives at a greater rate of speed than is permitted by any ordinance of a city, such railroad shall he liable for all damage done to a person by the negligence of such railroad or its agents, and such injury shall he presumed to have been done by the negligence of such corporation, it is unquestionably the law of this State that a plaintiff whose negligence has materially contributed to the injury of which he complains, cannot recover therefor unless it appears that his negligence was slight, and that of the defendant gross in comparison.</p> <p>2. Liability as appected by the statute.—As affected by the statute above cited, the liability of the railroad company is absolute only in the absence of proof rebutting the statutory presumption of negligence; and when the proof establishes contributory negligence on the part of the plaintiff, the presumption of liability raised by the statute ceases, and as in other cases, the plaintiff can recover only where his negligence is slight, and that of the defendant gross.</p> <p>3. Instruction—Giving undue prominence to testimony.—An ins'ruction that singles out and gives prominence to portions of the testimony is erroneous, i</p>

<p>1. Navigable Streams.—Those rivers must be regarded as public, navigable rivers in law, which are navigable in fact, and they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade or travel are or may be conducted in the customary modes of trade and travel on water.</p> <p>2. User not necessary.—Where a water-course in its natural condition is susceptible of being advantageously used for purposes of transportation by water, it is in law a navigable stream, and this conclusion is not affected by the fact that the stream has never been actually used for that purpose to any great extent. The public easement depends not so much upon actual user as upon the capabilities of the stream for advantageous use as a public highway.</p> <p>3. Nuisance—Where the charter of a railroad company gives it the right to construct its road across a water-course only on condition that the same should be restored to its former state, or in such manner as not to impair its usefulness, a bridge erected over such water-course which does not fulfill this condition of the charter, is both a public and private nuisance, as much so as if it had been erected without legislative authority.</p>

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

<p>Appeal from the Circuit Court of Macoupin county; the Hon. C. S. Zane, Judge, presiding.</p>

<p>1. Chattel mortgage—Right to hold property—Maturity oe debt.—Appellant took possession of certain personal property by virtue of a chattel mortgage, acting as the agent of the holder of the note. An action of replevin in the detinet was brought by appellee, for the recovery of the property. The court, at the request of appellee, instructed the jury that if they found that at the time possession was taken of the property, the note and mortgage had not matured, they should find for appellee; and further instructed them to the effect that a note was not due until three days after the day expressed on the face thereof. Held, that neither of these facts were material to the issue, this being an action in the delinet, for at the time of bringing this suit the note and mortgage had long since matured.</p> <p>2. Indemnity fob existing debt—Payment of original debt.—A note and chattel mortgage were made to indemnify C. for becoming security on a note payable to W. Both the original and indemnifying note and mortgage were endorsed by W. to L., with the understanding that he would sell the property and apply the proceeds to the payment of the original note. Held, that L. could hold the property described in the mortgage; that the original note, and note and mortgage having become united in the same per: son, a collection on the latter satisfied the former pro tanto; that it was immaterial whether C. first paid off the original note and then foreclosed the mortgage, or turned the note and mortgage over to L., who held the original note.</p>

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

<p>Appeal from the County Court of McLean county; the Hon. B. M. Benjamin, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ford county; the lion. Owen T. Beeves, Judge, presiding.</p>

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

<p>1. Municipal corporations—Power to make subscriptions to railroads.—Municipal corporations are created by the Legislature for governmental purposes only, and have no power to engage in commerce or to make subscriptions or donations to railroads, unless the same is conferred by statute; and when such power is given, it must be clearly conferred and strictly pursued.</p> <p>2. Vote for subscription.—Where the statute authorized a town to-subscribe to the capital stock of a railroad, upon a vote taken for that purpose at a regular town meeting, a vote taken at a special meeting called for that purpose, will not confer authority upon the town to make such subscription.</p> <p>3. Consolidation of companies.—Where a statute authorized a town to subscribe a stated amount to each of two proposed railroads, the consolidation of the two companies entitled the new company to the benefits only of such donation as the town could make to either of the former companies.</p> <p>4. Bonds issued without authority—Recitals—Innocent purchaser.—One who purchases a municipal bond issued without authority, or in violation of law, is not an innocent purchaser. The law makes it his duty to look to the authority under which the officers of the municipality have acted. He may rely upon the recitals in the bonds for some purposes, hut not for proof of the authority of the agent or officer of the corporation. Where there is want of authority, such recitals are not binding on the principal.</p> <p>5. Payment of interest no ratification.—The bonds being issued without authority, are void; and the town has no power to ratify them by payment of interest, so as to bind the taxpayer. An act defectively done under authority may be ratified, but one performed without authority cannot.</p>

<p>Emm?, to the Circuit Court of Morgan county; the Hon. Cybus Eplee, Judge, presiding.</p>

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

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

<p>Appeal from the Circuit Court of Vermillion county; the Hon. O. L. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. H. M. Yandeveer, Judge, presiding.</p>

<p>1. Eviction.—The institution of a suit against a party in actual and uninterrupted possession of premises, and the entry of a decree that unless he pay a certain sum the premises will be sold, is not an eviction. To recover for an eviction the party should have surrendered the possession to the holder of the paramount title, or remained until he was removed by due process of law.</p> <p>2. Constructive eviction.—While certain acts have been held to amount to an actual eviction, it cannot he said that a person in possession can retain that possession and recover from his grantor upon the mere claim of the holder of the better title. He should have discharged the outstanding title before bringing his suit for an eviction. A mere agreement to pay the claim is not sufficient.</p> <p>3. Damages on breach oe covenant.—In a suit for breach of the covenant against incumbrances, the plaintiff not having discharged the incumbrance when the suit was brought, is entitled to recover only nominal damages.</p>

<p>1. Landlord and tenant—Accruing rent not reserved—When it passes to grantee—Attornmbnt.—As between the parties, accruing rent not reserved passes hy the deed to the grantee, but until attornment there is no privity of contract between the tenant and grantee for payment of the rent, and the grantee cannot maintain a suit at law against the tenant therefor.</p> <p>2. Statute 4th of Anne not in force.—The statute 4th of Anne, dispensing with the necessity of an attornment by the tenant in order to give a complete remedy by the assignee against the tenant, is not in force in this State.</p> <p>3. Pleading—Evidence.—The release offered in evidence was executed long after suit was commenced, and if competent for any purpose, was not admissible under either of the pleas in the case. The pleas had relation to the situation at the commencement of the suit, and the release certainly did not show non-indebtedness at that time.</p>

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

<p>Contbibutoby negligence. — A plaintiff cannot recover for injuries received through the defendant’s negligence, where his own negligence has contributed to such injuries, unless his negligence was slight and that of the delendant gross in comparison.</p>

<p>Practice in Appellate Court—Filins abstract—Rules .—A mere index to the record, referring to the pages containing evidence, instructions, etc., is not such an abstract of the record as is required by the rules of this court, and appellant failing to file an abstract of the record in accordance with the rules of court, the judgment below is affirmed.</p>

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

<p>Appeal from the Circuit Court of Sangamon county; the Hbn. H. M. Yandeveer, Judge, presiding.</p>

<p>1. Revenue law—Increasing assessment after return made.—As the law stood prior to 1873, an assessor had no right after having once made an assessment, to raise it, without notice to the party assessed, and if he did so it was fraudulent and void, and a bill in equity would lie to restrain the collection of a tax levied on it. Nor has he any such power under the present revenue law.</p> <p>2. Notice of increase should be given.—After an assessment has once been made a party has the right to rely upon it, and he ought not to be compelled to look after the matter further unless he receive notice from the proper authority of a'motion to raise his assessment. The town or county board may lower it but cannot raise it without notice.</p>

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

<p>Attorney’s fees when allowed by court—Rule for determining. —In fixing the amount of attorney’s fee when allowed by the court, the examination should be directed to what is customary for such legal services where contracts have been made in advance with persons competent to contract, and not what is reasonable, just and proper for the solicitor in the particular case. The inquiry should be, not what an attorney thinks is reasonable, but what is the usual charge. In taxing such fees, the chancellor should exercise bis own judgment, and not be wholly governed by the opinions of attorneys as to the value of the same.</p>

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

<p>Mortgage—Priority of lies.—The preponderance of evidence showing that appellant Boone’s deed of trust was first executed and recorded, his equities are superior to appellee’s, and he is entitled to priority of payment.</p>

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

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

<p>1. Pjrobable cause—Malice.—In a suit for a malicious prosecution, it must appear, not only that there was want of probable cause, but that the prosecutor was actuated by malice in causing the arrest. Both must concur.</p> <p>2. Malice not implied.—Malice is a question of fact, to be found by the jury, and not a legal presumption arising- from the want of probable cause alone. The want of probable cause is a fact to be considered in determining the question of malice, but malice ought not to be inferred from it unless the charge is willfully false.</p> <p>3. What is pkobable cause.—Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party making the charge of the guilt of the accused, founded upon circumstances tending to show that he has committed a criminal offense.</p>

<p>Appeal from the Circuit Court of Scott county; the Hon. A. G-. Bubb, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of McLean county; the Hon. B. M. Benjamin, Judge, presiding.</p>

<p>1. Recognizance before a justice of the peace—Number of sureties.—In a recognizance before a justice the statute does not absolutely require there should be more than one surety. All that is contemplated is that the surety offered should be ample, and such as is satisfactory to the justice. The fact that only one surety was taken cannot be made an objection to the recognizance by the surety himself, such bonds being made voluntary by the statute.</p> <p>2. Default—Declaration of forfeiture.—The statute relating to recognizances before justices, does not require that the justice, on default, should declare a forfeiture, but only to enter “default” and “ certify the recognizance with a record of the default to the court having cognizance of the offense.”</p> <p>3. Practice in circuit court.—Where there has been a default taken by the justice on recognizance before him, and it has been certified to the Circuit Court, it is not necessary that such court should in terms declare a forfeiture, before scire facias can be issued. The entering of default is the duty of the justice, not the Circuit Court. This is required only where the party has entered into a recognizance to appear before the Circuit Court.</p>

<p>1. Pleading—Replication—Burden of proof.—Where a plaintiff, byway of replication to the defendant’s plea, alleges an independent fact, the burden of proof is upon him to show the truth of such fact.</p> <p>2. Evidence—“Warranty.—Appellant alleged that he pm-chased of appellees a corn-sheller, which was warranted, and gave his note for the deferred payment; that afterwards that note was surrendered and a new note given in its place. In a suit upon this last note, there was evidence tending to show a warranty and breach, and that the same was not settled at the time of giving the new note. Held, that the court erred in excluding such evidence; that the warranty, if any, might remain even if the note was .paid, unless the same was settled at the time of giving the new note, and this was for the jury to determine.</p> <p>3. Evidence—Bill in chancery.—It was improper to admit in evidence a bill in chancery prepared by appellant to restrain the collection of a judgment, on the ground that the justice had no jurisdiction. The replication in this suit shows that the judgment was void, and proof should have been made by production of the justice’s docket.</p>

<p>Instbuction—Assuming pacts.—It is error for the court to give an instruction which assumes as proved, one of the disputed facts in the case. In a case where there is a conflict in the evidence, it is of the utmost importance that no fact should be assumed as proven, which is controverted.</p>

<p>Attachment—Requirements oe aeeidavit.—An affidavit in support of a writ of attachment, hasecl upon the statutory ground that the debtor has departed from the State, must show that he had left the State “ with the intention of having his effects removed therefrom.” It is not sufficient to allege that he has gone beyond the reach of his creditors, nor does such affidavit amount to an allegation that the debtor was not a resident of this State.</p>

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

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

<p>Error to the Circuit Court of Tazewell county; the'Hon. John Burns, Judge, presiding.</p>

<p>1. Appeal by towh—Bohd must be sighed by supebvisob.—On an appeal by a town, in an action where an appeal will lie, the bond should be signed by the supervisor in the name of the town. A hond signed by the commissioners of highways in an appeal from a suit relating to roads, is irregular.</p> <p>2. New bohd may be piled.—Where the bond for appeal is defective, it is error for the court to dismiss the appeal on motion, but leave should he given to amend. The proper practice would be to require the appellee to enter a rule against the appellant that- unless he files a sufficient bond by a day named in the rule, the appeal will be dismissed.</p>

<p>]. Justices oe the peace—Jubisdictioh.—Justices of the peace have no jurisdiction, either in actions for trespass vi et armis or in actions on the case.</p> <p>2. Relation between teacher and pupil—Ho implied contract.— There is no implied contract between teacher and pupil in our public schools, that the former shall teach the latter. The only contract of the teacher is with the board of directors employing him.</p>

<p>Promissory, Note—Signing as security—Agreement to procure another signer.—Appellee claimed that he signed .the note in question as security, with the understanding that another security should be procured, which was never done, and upon the evidence on this point a judgment was rendered for appellee in the court below. The evidence fails to support the theory of appellee’s defense, while appellant’s position is clearly supported. The finding of the court being against the weight of the evidence, the judgment must be set aside.</p>

<p>1. Execution—When protection to the officer.—An execution in the hands of an officer is a sufficient protection to him when sued by the party against whom he holds the execution, but when he levies upon the goods of a third person, a stranger to the execution, he must produce the judgment as well as the execution to justify the seizure.</p> <p>2. Property purchased by wife—Possession.—The evidence showed that the property in question formerly belonged to the husband of appellant, and was by him mortgaged to B, who took possession under the mortgage, and afterwards sold it, appellant becoming the purchaser; but there was no proof that any funds belonging to the husband were used in payment of such purchase. This was not sufficient to warrant the jury in finding a verdict against appellant as to the ownership of the property; nor does the fact that appellant took possession of the property and returned it to the home, where she resided with her husband, she being the owner of the farm, aid in reaching such a conclusion; nor is it material that her husband may have used and taken care of the property, provided such use and care were not inconsistent with appellant’s rights as owner.</p>

<p>1. Master and servant—Injuries to servant.—An employee assumes all the ordinary hazards arising from the performance of the duties of his voluntary engagement, and if he is injured by any of the ordinary perils of the service, the law will afford him no remedy.</p> <p>2. Railroads—Lessor and lessee—Relation oe servants of the latter to the former.—Where a railroad company leases of another company its track, the trains of' the lessee being allowed to run over such track subject to the control, rules and orders of the lessor, by virtue of an agreement to that effect between the two companies, the lessor will be regarded as the common master of the servants of the lessee while running its trains upon the leased track, and the employees of the two companies as fellow servants of the lessor.</p>

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

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

<p>Appeal from the Circuit Court of Macoupin county; the Hon. C. S. Zane, Judge, presiding.</p>

<p>. Subrogation — Restraining settlement of suit. — Appellants insured the hotel of appellee and on its destruction by fire paid the amount of insurance. Subsequently appellee brought suit against a railroad company for damages for setting his hotel on fire, in which suit appellants asked leave to interplead as parties plaintiff, which was refused. Thereupon they brought a bill to restrain the collection or settlement of the claims against the railroad, and asking to be subrogated to the rights of appellee therein to the extent of their insurance. Held, that the injunction should have been allowed, and retained until the determination of the case against the railroad; that appellants were entitled to receive, to the extent of their insurance, any excess beyond appellee’s loss that might be recovered from the railroad.</p>

<p>levy op execution—Taking frofebty op another—Justification —What must be shown.—Where an officer is sued in trespass by the defendant in execution, the production of the execution is a sufficient defense for his protection, but where the property levied upon is claimed by another, he must show that the execution is based upon a valid judgment.</p>

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

<p>1. Practice—Waiver.—An agreement by the parties that a cause may be tried on a day fixed, is a submission to the jurisdiction of the court, and a waiver of the right to move for a dismissal of the cause on the ground that the cost of a change of venue has not been paid.</p> <p>2. Contract—Variance—Parties.—Appellee declared against appellant as common carrier, alleging a contract to carry appellee’s cattle, etc. Appellant insisted that appellee, with one B, hired a car, paying a stated price for the same, and assuming all the risk of transportation in consideration that appellant would allow the servants of appellee and B. to take charge of the car. If the contract was as is insisted by appellant, it would vary from the one declared upon, as not being between the same parties or in the same terms. But if it should appear that the railroad company fixed the rate per car, and the interest and ownership of the cattle were several, and appellee’s cattle alone were injured, then the right of action would be in him.</p> <p>3. Evidence—Freight-book, way-bill, etc.—The freight-book kept by the agent of the railway company, showing a statement of the contract between the company and appellee, and the way-bill, were competent evidence as being part of the res gestee, and should have been admitted, as they tended to prove the contract as alleged by appellant.</p> <p>4. Instructions to jury—Release oe liability.—It was error to instruct the jury that the fact, if proven, that appellee’s servant was present and assisted in loading tho cattle, does not release the defendant from liability, unless they should also find that appellant agreed if the cattle should be so loaded he would release the defendant from liability. The jury should have been told that such fact might be taken into consideration, along with other evidence, in determining whether there was such an agreement or not. Ho express agreement to release need be proven, but such release would be the result if appellee had assumed the responsibility himself, for a consideration.</p>

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

<p>Practice—Failure op appellee to pile bribes.—Where the defendant in error, or appellee fails to file his brief, in compliance with the rule of this court, the judgment or decree will be reversed pro forma, unless the court, on examination of the record, shall deem it proper to decide the case on its meiits.</p>

<p>Execution—Return—Re-deliyery after return made.—Where a constable received an execution, and two days thereafter returned it to the justice with his return endorsed on the back, it was a sufficient return of the execution, and it then became functus officio; and the fact that he afterward, at the request of the justice, took the execution again and retained it for several months, did not restore it to vitality, or render the constable liable on his official bond for not returning an execution during its life.</p>

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

<p>1. Revenue—Suit eob amount due on eobeeited pbopebtt—What ■must be shown.—In a suit brought to recover the amount clue on forfeited property, the plaintiff must prove the amount clue; that the property has been forfeited, and that all the steps necessary to work a forfeiture have been taken. To create a forfeiture there must have been a judgment, a process issued for the sale of the property, an offer for sale, and a failure to sell for want of bidders.</p> <p>2. Bond eob a deed—Pabties.—The lots in question were listed and assessed in the name of appellant, he having a bond for a deed of the same from T. and W., reciting therein that on payment of the balance of tfie purchase money and all the taxes assessed against the lots, a deed should be executed, etc. HeM, that this bond, if it could confer any right of action on, T. and W. against appellant on a failure to pay the taxes, could only be construed as a covenant by appellant with them to pay to the State a debt for which they were liable, and for the breach of which they alone could sue.</p>

<p>Error to the Circuit Court of Edgar county; the Hon. W. E. Helson, Judge, presiding.</p>