Volume 20 — Illinois Appellate Court Reports

<p>1. Ratification—Presumption of.—To establish a case of authority by ratification, there must be some substantive proof; it must not rest upon probability or conjecture. When the intention with which an act was done is not clear, the presumption of ratification is far less strong where no relation of agency existed. Under the evidence in this case, held, that there was an entire absence of proof of any authority, either actual or apparent, in the party soliciting the advertisement, to bind the defendant by any contract, and that there was no subsequent ratification.</p> <p>2. Damages—Failure to insert advertisement.—The rule applicable to sales of personal property, viz., that where the article is one that can be bought in. the market the proper measure of damages for the breach of the contract to deliver is the difference between the contract price and the market price at the time of the breach, would apply to a ease for damages for a breach of a contract to insert an advertisement in a newspaper if an advertisement of like character was readily obtainable in the market.</p> <p>3. Damages when it is not possible to obtain article in market. —The rule that where one contracts to supply a thing which is not otherwise obtainable, the measure of damages for a failure to deliver is the difference between the-contract price and the cost of obtaining the best equivalent or substitute the purchaser can obtain on the occasion for the purpose, does net apply in this ease, because it does not appear that the advertisement, contracted for could not be readily obtained in the market at the contract price, and further, because plaintiff has never expended any sum of money in obtaining any such substitute or equivalent,</p>

Joseph E. Cart, Judge, presiding. This was an action of assumpsit, brought by Augustus W. and Frank L. Bitzinger, copartners under the firm name of Bitzinger & Co., against the Merchants National Bank of Chicago, upon a bill of exchange or check for $2,000, drawn upon the defendant by A. & J. S. C. Harrison, of Indianapolis, Indiana, payable to the order of William Haerle, and by him indorsed to the plaintiffs.

Thomas A. Moran, Judge, presiding. This is an appeal from the decree of the court helow, sustaining a demurrer to dismissing the bill of appellant, dissolving a temporary injunction which he had obtained, and assessing damages for the wrongful suing out of such injunction. .The bill was brought by Poyer, the appellant, against the village of Des Plaines, S. Garland and August Moldenhauer, the latter being a justice of the peace of said village, to restrain them and each of…

Ejek Hawes, Judge, presiding. This was replevin by appellee against appellant for a piano. It appeared from the evidence that in February, 1883, Lasher went to the salesroom of the Chicago Piano Storage Co. to advance money on a mortgage which he was taking on a piano being sold by said company to a Mrs. M. E. Potter. Lasher testified, on the trial, as follows: “Was present at the sale and saw and heard the storage company sell to Mrs. Potter, the piano.

John G. Rogers, Judge, presiding. This was an action of debt brought by George A. Follansbee and ten others, as joint obligees, against Burns and Taylor, as obligors, in an injunction bond dated May 27, 1884, in the penal sum of five hundred dollars, conditioned for the performance of covenants.

John G. Rogers, Judge, presiding. This was an action brought by appellee, to recover from appellants money paid to them on a certain transaction in Denver and Bio Grande stock.

Joseph E. Gaby, Judge, presiding. Appellants are a wholesale grocery firm. In April, 1884, it was ascertained that a customer of the firm, who owed about fifteen hundred dollars, was embarrassed and was about to have a judgment entered against him, under- which it was feared his whole stock would be sold out and appellants would get nothing of what was due them.

Murray F. Tuley, Judge, presiding. In this case Wollensak filed his bill in chancery against Briggs, alleging the execution by Briggs of two contracts in writing, by which he agreed to construct for the complainant two certain machines, one for making speaking tubes, and the other for making speaking tube elbows, which machines were to embrace and embody various new and useful improvements and inventions made, and to be made, by the defendant, and to assign such improvements…

Joseph E. Cast, Judge, presiding. This was an action of trover brought by appellees, West, Andress & Co., commission merchants, against the appellant, Hide and Leather National Bank, both of Chicago, to recover for the alleged wrongful conversion of two warehouse receipts for corn of plaintiffs, issued by the Wabash elevator, one of which, bearing date Jan. 31,1884, was issued to Culver & Co. for 3,696 bushels, the other of date Feb. 5,1884, was issued to Ricord & Brother…

Elliott Anthony, Judge, presiding. This was an action in assumpsit to recover against plaintiff in error on five promissory notes made by him payable to defendant in error.

<p>1. Gambling contracts.—To bring a transaction within the provisions of section 130 of the criminal code, it is not essential that the contract should, on its face, purport to give to the party an option to sell or to buy; but if the real intention of the parties at the time of making the contract is to deal only in options to be subsequently adjusted or settled upon the basis of the differences in the market price and not by the delivery of the commodity sold, the transaction is a gambling contract within the prohibition of the statute, even though it may, upon its face, purport to be an absolute contract for the sale or purchase of such commodity for future delivery.</p> <p>2. Same—Principal and agent.—Where a broker, commission merchant or other agent undertakes to deal for bis principal in contravention of the statute above mentioned, and in doing so makes disbursements or paya losses growing out of such dealings, he can not recover from bis principal the money so paid on his commission.</p> <p>3. Instructions—Intention to deal in options.—The finding of the jury in this case that no express contract by which plaintiffs agreed to deal for defendant exclusively in options, to be settled by the payment of differences, was proved, must be taken as conclusive, but the defendant was entitled to have the jury instructed as to whether, from the evidence, an intention on the part of both the plaintiffs and defendant to embark in a series of gambling transactions was not established by implication, and as to the consequences of such intention, if established.</p>

Joseph E. Gary, Judge, presiding. This was debt, by appellee against appellant, impleaded with Thomas J. Martin and William A. Graham, upon a bond in the penalty of seven thousand dollars, dated June 15, 1881, made to appellee as marshal of the Northern District of Illinois, by said Martin and Graham, Abrahams, the appellant, signing as surety.

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

<p>1. Exception in enacting clause of statute.—It is a general rule that where exceptions are contained in the enacting clause of a statute creating an offense and giving a penalty, they are regarded as so far descriptive of the offense that they must be negatived in the indictment, information or declaration as the case may be. But it is otherwise where the exception comes in by way of proviso to the statute.</p> <p>2. Act to bbgülate pbactice of medicine.—The court is of opinion that in this case no mention of the exception or negation contained in the proviso to section seventeen of the “ act to regulate thg practice of medicine in the State of Illinois ” was necessary in the indictment, but it was necessary as part of the description of the offense to negative in the indictment the several exceptions contained in section fifteen of such act.</p> <p>8. When physician’s license or qualifications presumed. —Wince the question of license or qualification of a physician arises collaterally in a civil action, between party and party, or between the physician and the one who employed him, the license or due qualification under the statute to practice will he presumed. In the case, however, of prosecutions on behalf of the public, license or due qualification under the statute is not presumed, and it rests with the defendant to prove it.</p> <p>4. Constitutionality of act.—The court, refuses to pass upon the constitutionality of this act.</p>

Sidney Smith, Judge, presiding. This action was brought hv appellants to recover against appellees on a bond given by Bartlett as principal and the other appellees as sureties. Bartlett was paymaster of the railroad company, and failed to pay over something about twenty-six thousand dollars of the money of the company, which came into his hands.

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

<p>Privileged coir-romcATioNS.—A client can not be made to disclose any communication between himself and his legal adviser which his legal adviser could not disclose without his permission. But where a witness on direct examination goes into the matter of consultations or communications with counsel, he may be compelled to answer fully on cross-examination. In this case the witness, on her direct examination, made no reference to conversations with her attorney, and therefore she could not be cross-examined as to such conversations.</p>

Elliott Anthony, Judge, presiding. Suit was commenced in the Superior Court of Chicago on July 2, 1884, by appellee against appellant, and a declaration was filed, which set out a general contract for doing work ordered by plaintiff, and contained eight special counts thereon and the common counts.

<p>1. Attachment—Damages, in suit on bond.—-In an action upon an attachment bond, if a portion of the property attached was owned by other parties and was taken by the owners from the attaching creditors, and the residue was subject to the lien of a valid chattel mortgage, and was taken from the attaching creditors by the holder of the mortgage and sold to satisfy said mortgage, the plaintiff can not recover damages for the value of the property.</p> <p>2. Practice—Correctness of verdict presumed.—The bill o£ exceptions failing to show that all the evidence at the trial, or even all the evidence heard upon the question of damages, is preserved, the correctness of the verdict as to the damages can not be questioned in this court.</p> <p>3. Surety—May plead as set-off a demand dub to his principal. —A surety on a bond when sued alone can plead as a set-off a demand due to his principal whore he shows that the demand has been assigned to him, or where he makes the set-off with the concurrence and consent of his principal.</p>

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

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

<p>Garnishment—Corporation—Alleged trust eund.—Where a suit in attachment was brought against an association and a bank was summoned as garnishee, and it was insisted that the money in the bank was a trust fund, the equitable ownership of which was in the members of the association in proportion to their respective rights, and therefore that it should not be applied to the satisfaction of a judgment against the association in favor of one of its members, held, that since in a suit at law by the association against the bank to recover the amount of said deposit none of the equitable matters attemped to be set up in the garnishee’s answer could have been pleaded in defense, they are not available in this proceeding.</p>

<p>1. Check not indorsed—Equities.—Where a check is not indorsed by the drawee, the party to whom it is given does not occupy the position of a bona fide holder for value, but the check is open to all defenses and equities.</p> <p>2. Same—Fraudulent representations—Notice to bank.—A bill in chancery brought by complainant against defendants, his son, the bank and the stock exchange, praying that a certain check for §500, drawn by complainant upon said bank payable to the order of the son, and alleged to have been obtained by fraudulent representations and without consideration, be declared null and void and ordered to be canceled. The check was delivered by the son to the stock exchange without indorsement, as a margin to protect a deal in stocks, but on the same day and before the check had been presented for payment at the bank, the son notified the bank not to pay it. The officers of the bank, however, said that they could not refuse payment without notice from the complainant, the drawer, and thereupon certified the check. Held, that the finding of the court below that the check was obtained from complainant by fraudulent representations and without consideration was sustained by the evidence; that the bank was duly notified not to pay or certify the check before it was presented for certification; that the decree that said check was null and void and that it be canceled, and that said bank place to complainant’s credit the amount of the check, was proper.</p> <p>3. Same—Bank’s negligence.—The bank can not complain that while the decree requires it to place the amount of the check to the complainant’s credit, it fails to protect the bank against the possibility of future litigation by requiring a surrender and actual cancellation of the check. In a suit in which the bank was praying no relief, the court was not bound to protect it against the consequences of its own negligence.</p>

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

Kirk Hawes, Judge, presiding. This was an action on the case originally brought in April, 1876, by Jeremiah dowry and Alexander Reid against the city of Chicago, to recover damages for the injury to the property and business of plaintiffs, as owners and operators of a certain stone quarry situated near to a certain artificial channel, cut and made by the State of Illinois before the year 1849, as and for a feeder to the Illinois and Michigan canal, which said first mentioned…

' Appeal from the Superior Court of Cook county; the Hon. Gwynn Gabnett, Judge, presiding.

Sidney Smith, Judge, presiding. This action was brought by the executrix of the last will of Herman 0. Glade, deceased, to recover from appellee, who was the survivor of the firm of Schmidt & Glade, of which Glade, deceased, was a member, a debt due to the deceased by the firm on the ground that appellee had, for a valuable consideration, assumed and .agreed to pay it.

John G.' Bogers, Judge, presiding. Appellant filed in the Probate Court of Cook county a Cairn against the estate of Frederick W. Guderyahn, deceased, on March 12, 1881, at the adjudication term. The claim was placed on the claim calendar, and was continued from term to term until February 9, 1885, after the expiration of more than two years from the issuing of letters testamentary, when it was called and dismissed for want of prosecution, claimant not appearing.

Lobin C. Collins, Judge, presiding. This was an action to recover for the killing of John James Hart, who, at the time of the accident which caused his death, was a teamster engaged in unloading coal from one of appellant’s cars, in the village of Evanston. It was usual to place cars which were to be unloaded at Evanston on a side track where teams were driven up close to the cars and the freight unloaded.

<p>1. Replevin.—A writ of replevin will not lie except against a party who takes and retains possession; and when an officer has fully executed a previous replevin writ and has no further control of the property in controversy, a suit in replevin can not be maintained against him.</p> <p>2. Same—Officer—When writ is protection.—Where a replevin writ is executed by replevying the property from the possession of the defendant in the writ, the writ is a complete protection to the officer, irrespective of the real ownership of the property.</p> <p>3. Voluntary assignment—Exclusive jurisdiction.—In the matter of voluntary assignments under our statute the county court is invested with exclusive jurisdiction to control, administer and distribute the trust estate and to control the assignee in the discharge of his duties.</p> <p>4. Same—Aid of other courts may be invoked by assignee.—But it does not follow that the jurisdiction of other courts may not he invoked in aid of the administration of the estate by the county court, and the exercise of such ancillary jurisdiction has never been held to be an invasion of the rule upon which the claim of the county court to exclusive jurisdiction must rest.</p> <p>5. Same—Assignee’s suit subject to same defenses as any other. —A replevin suit brought by a general assignee is subject to the same rules as those governing similar suits brought by any other party; and as the law entities a defendant in replevin to litigate not merely the right, of possession but the right of property, the assignee adopting that form of action must he held to have adopted it with all its incidents.</p>

Elliott Anthony, Judge, presiding. This was an action by Powers against the city of Chicago, to recover damages for a personal injury, viz., the fracturing of his thigh hone, by slipping and falling while going to his dwelling house, abutting upon a public street of said city called Haynes Court, and while, as he claimed, he was in the exercise of reasonable care, by reason, as it was alleged, of the negligence of defendant, its agents and servants, in permitting a certain…

John G-. Rogeks, Judge, presiding. Wilbur F. Storey died October 27, 1884, and on December 6, 1884, there was presented to the Probate Court of Cook county, by Eureka C. Storey, his widow, a petition stating that said Wilbur F. Storey left a last will, which was dated February 1, 1881, in which she, said Eureka C. Storey, was named as executrix; that he left real and personal estate in Cook county, and that he left surviving him his said widow, and his brother, Anson L.…

Hollín S. Williamson, Judge, presiding. This was an action of assumpsit, the declaration consisting of one special count and the common counts.

Kirk Hawes, Judge, presiding. This suit was brought by appellee in justice’s court, against appellant, Haines, to recover for advertisements of the Grlen Flora Mineral Spring Water, inserted in the Inter Ocean newspaper. On appeal to the circuit court, there was a trial by jury, resulting in a verdict and judgment for appellee against Haines in the sum of §136.65, besides costs, from which the latter took an appeal to this-court.

<p>1. Parties—Foreign executor.—A foreign executor, appointed by the court of another State, may properly appear in a suit in the courts of this State and defend the interests of his estate, and is a proper party for that purpose. He may, under the statute, appear in court in any form in which it may become necessary for him to properly prosecute or enforce any of the claims of the estate of his testator.</p> <p>2. Chancery—Mortgages—Strict foreclosuhb.—In this State, in view of our statute, it is only in exceptional cases where the interest of both parties manifestly require it, that strict foreclosures will be decreed. Such foreclosures are not proper, as a general rule, where there are incumbrances upon the property or creditors, or purchasers of the equity of redemption.</p> <p>3. Same—Bills to redeem.—No such restrictions, however, are imposed upon courts of equity in entertaining bills to redeem. In such cases the material question is whether the complainant is entitled to redeem from the incumbrance, and if suck right is established, he is permitted to redeem irrespective of the relative value of the property, or the claim of third persons.</p> <p>4. Same.—An offer to redeem in a bill of this character is neither necessary nor material.</p> <p>5. Same—Decree.—Upon a hill to redeem, where there are no peculiar facts and circumstances taking the case out of the ordinary rule, the com-' plainant can not claim as right to have a decree entered for the sale of the mortgaged premises as in cases of foreclosure subject to the statutory right of redemption; and it is not error for the court to refuse to decree a sale, but to enter the decree usual in cases of bills to redeem.</p> <p>6. Redemption—In bill to redeem, discretionary with the court.—Upon a bill to redeem, the time within which the redemption is to take place rests within the sound discretion of the court in view of all the circumstances, but the time which seems to have been usually adopted is six months.</p> <p>7. Evidence—Oe judgments against complainant properly excluded.—Evidence of judgments against the complainant in this case was properly excluded.</p>

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

<p>1. Vendor and vendee—Fraud.— Where goods are fraudulently obtained and subsequently sold to an innocent third party, who has no notice of the fraud, and he sells them to another party w ho has actual notice aliunde of the original fraud, the latter will get a good title to the goods.</p> <p>2. Practice—Amendment instanter, must be made at farthest within twenty-four hours.—Leave to amend instanter expires at farthest at the end of twenty-four hours after it is granted, and any amendment filed after that time without any further leave of court, or the attention of the court being in any way called to it, will properly be ignored by the court, and the case will be disposed of as if such amendment had not been filed.</p>

Murray F. Tuley, Judge, presiding. On January 5, 1886, in the Circuit Court of Cook county a bill was filed by the defendant in error against the Texas Continental Transportation Company, the plaintiffs in error and others, alleging that complainant had recovered a judgment in the Superior Court of Cook county against the said Texas Continental Transportation Company for upward of thirteen thousand dollars; that an execution on said judgment was duly issued, and was returned…

<p>1. Supplying lost record.—Every court of general jurisdiction has inherent power to supply its own lost or defaced records.</p> <p>2. Same—What necessary to snow.—Upon a motion to restore to the files a portion of the record which has been lost, all that is necessary to entitle the party to the relief asked for, is proof that such record once existed and that it has disappeared and can not be produced. The evidence in this case justified the court below in granting leave to plaintiff to restore the record by filing a copy of the entry of appearance.</p>

<p>1. Negotiable instbuments—Notice.—Where a party is about to receive a bill or note, if there are any such suspicious circumstances accompanying the transaction or within the knowledge of the party as would induce a prudent man to inquire into the title of the bolder or the consideration of the paper, he shall be bound to make such inquiry, or if he neglects to do so, he shall hold the bill or note subject to any equities which may exist between the previous parties to it.</p> <p>2. Writing on noté putting indorsee on inquiry.—Where a line was drawn over the words “ order of ” in the printed blank form on which a note was written and on the margin of the note in red ink was written “ This note is not negotiable,” held, that the words written on the margin are to be taken as a part of the note, and that they were sufficient to put the indorsee on inquiry so as to charge him with equities between the original parties to the note.</p> <p>3. Notice.—Where the matter of which express notice is proved is merely a circumstance collateral to the main fact with notice of which it is sought to charge the party, the collateral circumstance, if sufficient to put him upon inquiry leading to the truth, will, in general, be regarded as good notice of the ultimate fact to be established.</p>

Rollin S. Williamson, Judge, presiding. This was an action brought by appellant Wickersham, as assignee, under the provision of the statute concerning voluntary assignments, etc., of Mark D. Shay, against appellee Beers and one Coney, Beers alone having been served with process. The declaration contained two special and the common counts.

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

Hehry M. Shepard, Judge, presiding. On August 27, 1885, appellee Lehn conveyed certain real estate to appellees, Helmont Kasch and Arie Yan Deursen, by absolute warranty deed, for the consideration,… Held: and that the grantees should assist him in delaying, defrauding and hindering complainant and other creditors.

John V. Eustace, Judge, presiding. This is an appeal from an order of the Circuit Court of Carroll county, dismissing the petition of appellants, which was filed in the County Court of Carroll county, and which alleged that appellants were the sisters and only heirs at law of Charles Medler, deceased, and claimed that they are entitled, as such heirs at law, to all the property left by the said Challes Medler, remaining after the payment of the specific legacies mentioned in…

Eollin S. Williamson, Judge, presiding. This was an action by Mrs. Chase against the city of Chicago, to recover for a personal injury, occasioned by plaintiff stepping into a hole in the sidewalk of one of the public streets and thereby breaking one of her legs. There was a tidal upon a sufficient declaration and plea of general issue, terminating in a verdict and judgment for defendant, and the plaintiff _ brings error to this court.

<p>1. Negligence—When case may be taken from joky.—Where the evidence is undisputed as respects the want of ordinary care on the part of the person injured and culpable negligence is clearly shown, the trial judge may decide the question as matter of law, and take the case from the jury; but the evidence must show rashness, culpable negligence of the injured person, so clearly, as not justly or fairly to admit of any other conclusion.</p> <p>2. Amendments—Practice.—Where ^the supplemental bill of exceptions, purporting to amend the former one, was ordered signed and sealed long after the time for filing a bill of exceptions had expired, and was filed in this court by leave of court, held, that the practice in such case is to consider the matter open to inquiry, whether such amendment is entitled to any consideration or not; that in this case it was unauthorized and should be totally disregarded.</p>

Murray F. Tuley, Judge, presiding. Mr. C. Beckwith, for plaintiff in error; that the “ act in regard to horse and dummy railroads” approved March 19, 1874, did not operate as a repeal of the city charier, cited Starr & Curtis’ Stat., 472. The bill was properly filed by the attorney general: R. S. Ch. 14, § 4.

Elliott Anthony, Judge, presiding. On the 20th day of December, 1884, Ithiei B. Farnum and George G. Farnnin brought their suit in assumpsit in the superior court, by attachment, against Mrs. L. B. Connor, and caused the Hanover Fire Insurance Company, of New York, and the Citizens Fire Insurance Company, of New York, doing business under the name and style of the Underwriters Agency of New York, to be summoned as garnishees.

<p>1. Evidence.—The court is of opinion that the court helow was justified in finding that the proof of the negotiation of the securities to appellant, prior to their sale and delivery to appellee, was too uncertain and unsatisfactory to justify a decree in appellant’s favor.</p> <p>2. Agency—Fraud.—Where one of two innocent persons must suffer by the fraud of a third, it must be the one who placed it in the power of such third person to commit the fraud. As appellant, who claims to have boug.,t from his brother-in-1 iw the securities in question (a bond and deed of trut, the time for payment of the bond having been extended by an instrum 3nt signed by the parties) placed these securities in the hands of his brother-in-law a,nd clothed him or permitted him to clothe himself with the indicia of ownership, he is bound by the latter’s sale of such securities to an innocent purchaser.</p>

Murray F. Tuley, Judge, presiding. This record shows that the Board of Trade of the city of Chicago is a body corporate, created by an act of the legislature of this State, passed February 18, 1859, and that the appell ant, Pitcher, was admitted as a member thereof some eight years ago.

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

<p>1. Statute of Frauds.—The court is of opinion that the contract set up under the oral lease which the defendant’s evidence tended to establish was not within the Statute of Frauds, as the evidence failed to show that the oral lease sought to be proved was for the term of one year from the expiration of the then existing lease, or for any other fixed or definite term, and therefore it does not appear thatyaid contract could not have been performed within one year.</p> <p>2. Practice—Reviewing judgment of circuit court.—In reviewing the judgment of a circuit court on appeal, the reasons assigned by the circuit judge for his decision are immaterial. It will be presumed that he duly considered and passed upon every question presented by the record before him, and if bis decision can be sustained upon any grounds fairly deducible from the pleadings and evidence, the judgment will be affirmed wholly irrespective of the reasoning which the judge may have adopted in arriving at his decision.</p>

John G. Rogeks, Judge, presiding. This was an action of trespass for assault and battery brought by appellee to recover damages, for an alleged battery upon him by the brakeman of the appellant, when appellee was a passenger on the cars of appellant. The pleas were the general issue and son assault demesne.

This was a suit brought by Eosa Cohn, widow of Joseph Cohn, deceased, against the District Grand Lodge No. 4, Order KA-her Shel Barzel, to recover the sum of $1,000, payable by the rules of the order to the widow, or other designated beneficiary of deceased members of the subordinate lodges in the district, out of the endowment fund in charge of said Grand Lodge.

<p>Chancery.—The court is of opinion that the evidence in this case supports complainant’s theory that the surrender of ail his property and means of support to his son-in-law, was upon the consideration that the latter would support him during his life, and was not a mere gift. The son-in-law refusing to perform his contract, equity has jurisdiction to rescind such contract.</p>

Elliott Anthoky, Judge, presiding. This was an action of assumpsit by appellees against appellants to recover for a bill of goods sold to appellants by one Holmes, who was a traveling salesman in the employ of appellants. Holmes had in his possession the usual lines of samples of appellees’ stock, and the course of business was for Holmes to take orders for goods and send them in, and appellees filed them or not as they saw fit. He had no authority to collect for the firm.

Kirk Hawes, Judge, presiding. This was an action of debt brought by defendant in error upon an undertaking given to prevent the levy of an attachment in an attachment suit brought in the District Court of Montana, in and for the county of Choteau, by said defendant in error, against one W. H. Burgess, to recover on a promissory note of said Burgess, given by him to defendant in error, for merchandise.

<p>1. Attachment creditor garnishing citizens of another state— Assignment.—A delivered to B a voluntary deed of assignment, made under and in conformity with the laws of New York, where it was executed. B, the assignee, accepted the trust and took possession of all the property, effects and estate of A. The day after the assignment, 0 sued out a writ of attachment against A in Chicago, and garnished D and others who were residents and citizens of Illinois, and who were indebted to Ain divers sums of money on open accounts. A, B and C were residents and citizens of New York,, where they did business. The assignee came in by way of interpleader,, setting up the facts in the case and claiming the funds as such assignee - There was no creditor of the attachment debtor,, who was a citizen or resident of Illinois, to question the operation of the assignment upon the funds aforesaid, in the hands of the garnishees. Held, that said assignment was operative as against the attachment creditor prosecuting his remedy in this State.</p> <p>2. Assignment Off another state preferring certain creditors.— It is not against the public policy of this State to recognize such assignment^ although it provides for preferences as permitted under the Mew York law. At common law a debtor in failing circumstances had the right to prefer one creditor over another, and the provision in our statute against preferring creditors has no relevancy to any assignment made out of this State.</p>

<p>1. Plea ln abatement—Pending- op suit.—In an action of forcible detainer brought to recover possession of certain premises, an action pending founded upon a supposed forfeiture of the lease of the premises before the expiration of the term by reason of an alleged failure to pay rent pursuant to a notice to do so, under the statute (which suit afterward turned out not to be maintainable, because the proper statutory notice had not been given) was pleaded in abatement. Held, that the pending of such suit was not sufficient to sustain the plea in abatement. They were not the same identical causes of action.</p> <p>2. Judgment upon plea in abatement.—In ordinary actions at law in courts of record, the judgment on the finding of the issues for the plaintiff upon a plea in abatement, is interlocutory or final according to the nature of the action. If the action be for damages in assumpsit or tort it is interlocutory. But if it be in debt for a sum certain or for a specific recovery of land or goods, it is final. Such rule applies to the statutory action of forcible entry and detainer.</p>

<p>1. Services rendered—Recovery under indebitatus count.— With respect to debts for work and labor or other personal services, and for materials used in performing the work, it is the rule that if preceded by the defendant's request, then, however special the agreement was, yet if it were not under seal, and the terms of it have heen performed on the plaintiff’s part, and the remuneration was to be in money, it is not necessary to declare specially, and the common indebitatus count is sufficient.</p> <p>2. Same.—Under an indebitatus count in assumpsit or debt the plaintiff may recover, although there be no evidence of a fixed price.</p>

<p>1. Practice—Amendments.—In an action on the'case, defendants, failing to appear, were defaulted, and the plaintiff’s damages were assessed by a jury at $250. Before final judgment defendants appeared by attorney and entered their motion in arrest of judgment, on the ground of misjoinder of counts, which motion was overruled, the plaintiff at the same time, by leave of court, amending her declaration by striking out the objectionable counts. Defendant then moved to set aside the verdict, and for leave to file a plea of not guilty instanter. Held, that the action of the court in overruling such motions and rendering judgment for plaintiff for $250 and costs was proper.</p> <p>2. Same—Presumption.—In support of the judgments of courts of general jurisdiction, the law will indulge in any reasonable presumption not rebutted by the record itself, and upon that principle it will he presumed that the court who heard the evidence would not have permitted the amendment above and given judgment on the other counts, if any portion of the evidence adduced before the jury had app.ied to any of the counts expunged.</p>

Rollin S. Williamson, Judge, presiding. This was an action by Baier against the Anglo-American Packing and Provision Co., to recover for a personal injury to the former, occasioned, as it was alleged, by the negligence of the latter. Upon a trial under the plea of general issue, the plaintiff below had judgment for $7,500, exclusive of costs, and defendant below brings error to this court.

Elliott Anthony, Judge, presiding. In this case William H. Stubbings obtained judgment by confession against Cornelia Martin, in the Superior Court of Cook county, for $3,630.83, and costs, and afterward, at the same term of court, the defendant appeared and entered her motion to vacate said judgment, and to be permitted to interpose her defense to the action; which motion was denied, and the defendant brings the record to this court by writ of error.

<p>1. Executions—Levy.—Where a sheriff has in his hands an execution, and levies upon personal property, and reduces it to possession, it is then in the custody of the law, and it is not essential to the lien of other .executions in his hands or subsequently received, that they should be formally levied.</p> <p>2. Same.—Where the property was sold under the first execution of de. fendanfs, and the proceeds paid over to them, and their lien was then extinguished by the reversal of their judgment, complainants, who had the second execution, would be entitled to the fund. Defendants having obtained possession of such fund with notice of complainants’ rights, are properly chargeable as trustees holding said fund for the benefit of complainants.</p>

<p>1. Sale—Fraud—Suit for price affirms sale.—The bringing of a suit to recover the price of goods or to recover damages for fraud in inducing the vendor to sell them, proceeds upon the theory that the vendor has parted with his title, and is therefore in affirmance of the sale.</p> <p>2. Attachment—Title to attached goods.—An attaching creditor acquires no title to the goods attached by means of his attachment writ., and no right of action against a third person, who may take them from the officer or destroy them.</p> <p>3. Replevin—Verdict.—In a replevin suit, where the defendant pleads property in several different parties, and the verdict of the jury is returned not guilty, and property in a certain one of those parties, but the evidence contains nothing to show title in that party, hut on the contrary shows the title to have been in one of the other parties in whom it was pleaded, held, that this is such error as to reverse the case.</p> <p>4. Evidence—Attachment affidavit not evidence.—An affidavit upon which an attachment was issued, is not competent evidence in the trial of a replevin suit, brought by a third party to recover possession of the goods attached.</p>

<p>1. Insolvent debtor—Practice—Appeal.—On an appeál of an insolvent debtor from a finding of the county court that malice was the gist of the action in which he had been arrested upon a ca. sa. a judgment of the circuit court, reversing such finding and judgment of the county court, and remanding the cause with directions to allow the debtor to schedule, etc., is final within the meaning of the statute granting appeals to this court.</p> <p>2. Same—Requisites for imprisonment.—A wrong and intention to commit the injury, are necessary to deprive the debtor of the right to a discharge from arrest and imprisonment.</p> <p>3. Same—Practice—Malice often determined from the pleadings.—When malicious torts are charged in the declaration, and the declaration is admitted by a default or proved at the trial so that a judgment for damages results, the declaration alone furnishes sufficient, and perhaps the only competent evidence that malice was the gist of the action.</p> <p>4. Same—Burden of proof as to malice.—The burden of proof that malice was not the gist of the action, lies upon the debtor seeking release from arrest and imprisonment.</p> <p>5. Same—Practice—Release of debtor dnder appeal bond.—The release of a debtor on his appeal bond pending the appeal, is clearly contemplated by the statute.</p>

This was an action in assumpsit brought by appellants against appellees, to which appellees pleaded in abatement the pendency of a suit in which an attachment issued in the United States Circuit Court for the District of Colorado.

Henry M. Shepard, Judge, presiding. This was a suit in chancery brought by Frederick Lipp against Charles J. Kallbom and Mary C. Kallbom, his wife, to foreclose a trust deed upon certain described real estate, executed by the latter to one Frederick Freudenberg, August 5, 1881, and duly recorded; which trust deed was made to secure the promissory note of said Kallbom, bearing the same date as said deed, whereby they promised to pay to said Lipp the sum of one thousand…

Elliott Anthony, Judge, presiding. This was an action of assumpsit brought by appellee as the payee, against appellant as the maker, upon two promissory notes, both bearing date at Chicago, November 6, 1883, one payable in eight and the other in twelve months after date.

Lorin C. Collins, Judge, presiding. This was an action of debt- commenced before a justice of the peace, to recover a penalty for an alleged violation of an ordinance of the town of Palatine. Appellant was lined by the justice, and appealed the case to the Criminal Court of Cook county, where the case was heard by the court without a jury, and a fine of eleven dollars assessed against the appellant. The following are the facts so agreed to by the parties. 1.

John Gr. Rogers, Judge, presiding. It appears that William H. Scoville died in this county intestate, May 28, 1884, leaving Emma Scoville, his widow, and three children, as his only heirs at law, viz.: William II.

Elliott Anthony, Judge, presiding. This was an action by appellees against appellant, upon a policy of insurance issued by the latter to the former June 21.1884, whereby appellant insured appellees, in the sum of one thousand dollars, upon certain specified parts of a steam saw mill situate upon leased ground, and situate at Duluth, in the State of Minnesota, against loss or damage by fire or lightning, for the period of one year from June 28, 1884.

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

Elliott Anthony, Judge, presiding. This action was brought by appellee to recover from appellants the proceeds of the sale of certain cattle and hogs made by appellants’ firm, as commission brokers, at the Union Stock Yards, in Cook county, for Holderman Bros., who were engaged in purchasing stock in the country about Pontiac, and also in the vicinity of Rantoul, Ill., and shipping the same to Chicago market for sale.

Joseph E. Gary, Judge, presiding. This was an action on an insurance policy to recover for the loss, by fire, of the house insured by the policy, situated in Miles City, Montana. The policy was dated January 29,1884, the fire occurred February 11, 1884, and this suit was not commenced until August 25,1885.

Lorin C. Collins, Judge, presiding. A petition for mandamus was filed in the circuit court, which petition is in the words following: State of Illinois, County of Cook, ss. In the circuit court, of the June term, A. D. 1886. To the Honorable Lorin C. Collins, one of the judges of the said court.

Henry M. Shepard, Judge, presiding. Appellant filed its bill of complaint in the superior court, and obtained a preliminary injunction restraining appellee from laying mains and pipes in the west division of the city of Chicago, in violation of a contract set out in the bill.

<p>Temporary alimony—Bill eor separate maintenance.—In a bill for separate maintenance the court has power to grant temporary alimony.</p>

Kirk Hawes, Judge, presiding. This was an action brought July 6, 1875, by the appellant, Scammon, against the insurance company, appellee, upon a policy of insurance issued January 2, 1874, by the latter to the former, upon a building of the plaintiff known as Ho. 209 Michigan avenue, in the city of Chicago, insuring the same in the sum of 85,000 against loss by fire, from January 4, 1874, to January 4, 1875.

Kirk Hawes, Judge, presiding. An action was brought by appellee against appellant, impleaded with Jules T. Gfuibout and Tryon J. Woodward. The issue tried was upon a plea by appellant denying joint liability. It appeared that in the spring of 1884, appellant being the pwner of a system of commercial reporting and rating, in part consisting of certain boobs or forms which had been copyrighted by him, sold a one-third interest to one Black, and another third to Woodward.

Henry M. Shepard, Judge, presiding. Appellant was the contractor for building three houses, one for his co-defendant in each of the above entitled cases. Appellee was a sub-contractor and furnished material for the construction of each building. Hot having received his pay from the contractor, appellee served notices on each of the owners, and afterward filed his petition in each of the cases to establish his lien.

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

<p>1. Depositions—Practice.—After a deposition taken in a canse has been read without objection upon one trial, it can not afterward be objected to on account of any defect existing at the time it was so used.</p> <p>2. Commission to take deposition.—Where a commission to take, the deposition of a non-resident witness, without being directed to any particular person as commissioner, was directed to any judge, master in chancery, notary public or justice of the peace of the county in which the witness resided and was executed by a notary public of that county, held, that this mode of directing a commission is warranted by the statute.</p> <p>8. Waiver op objections.—-A motion to suppress a deposition upon a specific ground is a waiver of all other grounds of objection.</p>

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

<p>Usurious contract.—A note made in 1876 as follows : “ Three months after date for value received we promise to pay * * * with thirty per cent, per annum after maturity for non-payment when due, and a reasonable attorney’s fee if collected by suit.’ Held, that such contract was not usurious. As the note was made in 1876, the act of 1879, making such contracts usurious, did not apply to it.</p>

William C. Jones, Judge, presiding. It appears from the record in this case that Lutes, appellee’s intestate, and his brother, failed in the clothing business in the spring of 1879, and made an assignment for the benefit of their creditors. The firm was owing the appellants more than all their other debts combined.

Jesse J. Phillips, Judge, presiding. Action on the case, by the appellee against George W. Bassett, the father of her husband, charging him with wrongfully and maliciously enticing her said husband to separate himself from her, whereby she was deprived of his society, affection, protection and support, for which she seeks to recover damages. The general issue and the Statute of Limitations of two years were pleaded, to which last plea a demurrer was sustained.

<p>Pleading;—Trespass.—In a case of trespass to real estate, where defendants in a plea seek to justify their acts in entering upon and taking possession of a portion of the premises of plaintiff against his consent, by virtue of pi'Or ceedings claimed to be had under drainage -laws of this State, such fads should be stated as to show to the court, upon the face of the plea, that Iho plaintiff’s land had been legally taken and appropriated, under the statuté for drainage purposes. .</p>

Clair county; the Hon. Amos Watts, Judge, presiding. The appellee, with six other men, all in the employ of appellant, were sent by the foreman of the work to load a car standing upon the side track, with iron bars and plates. Two men were required upon the car to take the plates from the other workmen upon the ground, who handed them up, and properly place them for transportation.

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

George W. Wall, Judge, presiding. Action upon an insurance policy issued October 4, 1884, to one James Gordon, upon machinery, etc., in his mill at Sparta, in this State, and by him assigned with consent of the appellant to appellee, who purchased the mill property before the loss. The defense was made that the insured, James Gordon, overvalued the property, and also misrepresented in his application the amount of incumbrances upon the property.

<p>Quo WARRANTO—COURTS INQUIRING INTO ELIGIBILITY OF ALDEBMEN. —The power conferred upon the Common Council of East St. Louis to judge of the qualification of its members, does not oust the courts of jurisdiction by quo toarranto to inquire into and determine the eligibility of a person assuming the duties and powers of alderman, and admitted to a seat as such, and to render judgment of ouster against him, if he is found ineligible.</p>

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

<p>1. Agency.—An agent employed to settle a debt can not purchase it for himself. One who agrees to act for another is not allowed to deal in the business of his agency for his own benefit, or to do an act having a tendency to interfere with the proper discharge of his duties.</p> <p>2. Purchase or a debt by agent.—A, as agent of a church, undertook to collect its assets and apply such collections to the payment of a note secured by trust deed, -given by the church to B. A bought the note of B, neglected to collect- all the assets, but represented to the church that it was out of debt. The first intimation the church had of A’s purchase was the recording of the trust deed years after the assignment- of the note. The church thereupon brought a bill against A, to procure the cancellation and surrender of the note. A filed a cross-bill claiming to be the assignee of the note, and praying that payment be made. Held, that A can not recover anything upon the note, and that the church is entitled to the relief prayed for.</p>

<p>Construction on contract.—A party to a contract will be held to that meaning which he knew the other party supposed the words to bear, if this can be done without making a new contract. A physician agreed with a board of supervisors to give the paupers of the county “medical treatment” for a stipulated price. Construed, that “ medical treatment” included services in surgical cases.</p>

Clair county; the Hon. George W. Wall, Judge, presiding. This action was instituted by the city of Belleville to recover a penalty provided by ordinance for the obstructing of a street in Chandler and Abend’s addition to the city. The road of appellant runs in a northwest and southeast direction through such addition, crossing Richland, Spring and Illinois streets running north and south, and Sixth and Seventh South streets running east and west.

<p>1. Unauthorized signing op note—Ratification.—Where a person without authority signs another’s name to a promissory note, the subsequent assent and ratification "by the latter of such signing is equivalent to an original authority and confirms what was originally an unauthorized and illegal act.</p> <p>2. Estoppel.—Where a son, without authority, signs his father’s name to a note, and the latter, by admissions as to its genuineness, or by promises to see that it is paid, induces the holder of it to delay talcing steps to collect it from the son until the son has left the State, the father is estopped from afterward denying the execution of the note.</p>

<p>Error to the Circuit Court of Franklin county; the Hon. E. M. McCartney, Judge, presiding.</p>

Amos Watts, Judge, presiding. This suit was brought by appellant against appellee on a certificate of insurance issued to her husband, Bobert Suppiger, for §5,000, by which it is provided that upon due notice and satisfactory proof of the death of the said Bobert, filed with the secretary of appellee, an assessment should be made upon all the members for the full amount named in their respective certificates, and the sum so collected, less cost of collection, to be paid to…

<p>Appeal from the County Court of Fayette county; the Hon. Jacob Fouke, Judge, presiding.</p>

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

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

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

Amos Waits, Judge, presiding. Trespass quare clausum fregi% with e’aim for damages for tearing down the barn, shed and fences of the plaintiff ; with justification by the defendant that the locus in quo was a street in the village of Germantown in said county of Clinton, and he was ordered by the village trustees to open the streets, and in doing so necessarily bad to commit the acts charged to be trespasses.

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

William C. Jones, Judge, presiding. The facts may be briefly stated to be that John S. Castle, a contractor and builder and dealer in building material, erected a dwelling house for defendant in error, Roderick, upon which he liad a lien for his payment.

C. C. Boggs, Judge, presiding. Previous to September 25, 1870, there had been a correspondence between F. Ryhiner & Co., of Highland, Illinois, and Gruner, Haller & Co., of Berne, Switzerland, on the subject of loaning money of capitalists residing in Switzerland, in this State. Of that date the former addressed to the latter a lengthy communication in the nature of a proposition to become their agents to negotiate such loans.

<p>1. Certiorari.—The office of the writ of certiorari is to bring before the court awarding it the record of the proceedings of the inferior tribunal, and if from the record it shall appear the proceedings of the inferior tribunal were irregular for want of jurisdiction of the parties and subject matter, or the court exceeded its jurisdiction, or otherwise proceeded in violation of law, the court should quash and vacate the entire proceedings, otherwise if. should dismiss the writ.</p> <p>2. Same—Laches.—Mere lapse of time alone, short of the limitation for prosecuting a writ of error, will not bar the issuing of a common law writ of certiorari.</p> <p>3. Justice op peace exceeding jurisdiction—Drainage commissioner.—Appellant, a justice of the peace, in August, 1885, upon the petition of a land owner in the district, issued a citation commanding appellee, who had been appointed in 1879 a drainage commissioner by appellant’s predecessor, to appear before him and make report. Appellee reported, appellant made an order rejecting appellee’s report, finding the sum of $5,214.99 in his hands belonging to said district, and ordering him to pay over and deliver the same, together with books, etc., to the three commissioners appointed by appellant as appellee’s successors. Upon writ of certiorari, held, that the court properly quashed the proceeding and order.</p>

<p>Appeal from the County Court of Perry county ; the Hon. S. G. Parks, Judge, presiding.</p>

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

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

This was a bill by appellant, the wife, against appellee, the husband, for a divorce upon the grounds of extreme and repeated cruelty and adultery. Upon issues formed by answer and replication a hearing was had, at which the principal witnesses appeared and gave their testimony orally before the chancellor, who dismissed the bill for the reason that the said charges were neither of them sustained by a preponderance of the evidence.

The court decides: 1. That from the restricted nature of its jurisdiction as respects some of the matters involved, and the obvious propriety of having the Supreme Court pass upon the case, it will sub-serve no useful purpose for it to enter upon a statement of the case, or a discussion in detail of the questions presented by this record. 2.