Volume 21 — Illinois Appellate Court Reports

James A. Creighton, Judge, presiding. Statement of the case, by Conger, J. The plaintiff in error assigns as error the judgment of the Circuit Court in sustaining the demurrer to his petition and dismissing the same.

<p>Appeal from the Circuit Court of Macoupin county; the Hon. W. It. Welch, Judge, presiding. '</p>

<p>Appeal from the Circuit Court of De Witt County; the Hon. George A. Herdman, Judge, presiding.</p>

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

<p>Appeal from the County Court of Morgan County; the Hon. M. T. Layman, County Judge, presiding.</p>

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

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

<p>Practice — Error—Assignment of, in Favor of One not Joining in Writ— Issue as to Sanity of Party — Discretion of Court — Suffici ency of Officer's Return-Findings of Decree — Presumption—Recovery of Advances for Payment of Taxes.</p> <p>1. Errors which only affect one who did not join in the writ of error, can not be assigned on his behalf.</p> <p>2. Where, taking the statements in an officer’s return together, it appears that process was properly served, the return is sufficient.</p> <p>3. In chancery the question whether an issue as to the sanity of a party should be referred to a jury is, except in certain special cases, entirely within the discretion of the court.</p> <p>4. Where there is no bill of exceptions nor certificate of evidence, the presumption is that the findings of the decree were warranted by the proof.</p> <p>5. Upon the foreclosure o£ a mortgage the allowance to the complainants of advances for the payment of taxes made after the filing of the bill, is held to have been improx^er under the prayer for general relief — the contingencies which would require, such payment by them being set forth in the bill.</p>

<p>Bill by Commissioners of Highways for Injunction to Prevent the Filling of Ditch — Easement.—Parol License to Enter Premises of Another— Revocation — Statute of Frauds — Pleading—Parties.</p> <p>1. A bill to enjoin the owner and occupant of premises adjoining a highway from filling up an artificial ditch thereon, and without the limits of the highway, does not lie, unless the public has by deed, prescription or condemnation acquired aright to the use of such.ditch as an easement. And it is so held, although at the time of filing the bill the ditch had been in existence thirteen years, had been kept open by the Commissioners of Highways, and the occupant had been paid from public funds for improving it under a contract with the Commissioners.</p> <p>2. A parol license to enter upon or pass over the land of another is revocable at the pleasure of the licensor, and may be revoked by the appropriation of the land to any use inconsistent with the enjoyment, of the license.</p> <p>3. Under the rule that the averments of a bill, when equivocal, must be taken most strongly against the complainant, it must be presumed that the “ contract’’ and the “mutual consent,” referred to were merely verbal, and that the occupant had no title to the land or authority to impose upon it the burden of the easement claimed.</p> <p>4. Such contract and consent, though in parol, were neither void nor voidable under the Statute of Frauds. They amounted merely to a license, which the bill itself shows to have been revoked.</p>

<p>Cities — Mayor, a Member of the Council — Casting Vote of, on Passage of Ordinance.</p> <p>1. The Mayor of a city, though not an Alderman, is a member of its Council, and as such is entitled to vote in case of a tie on the question of the passage of an ordinance.</p> <p>2. An ordinance adopted by the casting vote of the Mayor, will sustain' a prosecution for a violation of its provisions.</p>

<p>Appeal from the Circuit Court of Greene County; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>Appeal from the County Court of Coles County; the Hon. Charles Bennett, Judge, presiding.</p>

<p>Foreclosure of Mortgage — Note by Guardian Payable to his Successor-1Failure of Consideration — Delivery in Escrow.</p> <p>Upon a bill filed to foreclose a mortgage, given to secure a note made by the guardian of a minor and payable to his successor on a promise by the latter to credit the guardianship account of the maker, and to procure an order from the County Court to that effect, it is held: That an answer setting up said promise, a failure of performance, and the pendency of a suit against the maker for the entire balance of said guardianship account, was pertinent; that the promise of the payee did not bind him personally or as guardian, and that the note was either without consideration, or was given upon a consideration which has wholly failed.</p>

<p>Municipal Corporations — Change of Street Grade — Damage to Lot— Damnum Absque Injuria — Variance between Declaration and- Proof</p> <p>1. In an action to recover damages alleged to have resulted from the raising of the street grade in front of plaintiff’s lot, it is held: That the expense of filling up the lot to make it conform to the new street level can not be recovered as damages; that there can be no recovery for obstructing the flow of surface water from said lot, because damages therefor were not claimed in the declaration; and that there should have been no allowance for the appearance merely of the plaintiff’s house, unless caused by the elevationof the street as distinguished from the filling up of the lot.</p> <p>2. It seems that in such cases there can be no recovery for depreciation by effect upon appearance merely because of changes wholly external to the premises.</p>

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

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

<p>Contradictory Evidence — Question for Jury.</p> <p>Where the only ground relied upon for the reversal of a judgment is that the verdict is contrary to the evidence, and the evidence is so contradictory that, in .the opinion of this court, it was for the jury to decide which side was worthy of belief, their finding will not be disturbed.</p>

<p>Appeal from the Circuit Court of Vermilion County; the Hon. J. W. Wilkins, Judge, presiding.</p>

<p>Error in Judgment — Am endment.</p> <p>Where a judgment has been inadvertently entered for the plaintiff instead of for the defendant, an amendment may be allowed upon motion even after the expiration of the term.</p>

<p>Action for Personal Injuries — Survivorship—Statute—Parties.</p> <p>Under See. 123, Ch. 3, R. S., a right of action to recover damageslor an injury to the person survives. This survivorship applies in case of the death of the defendant as well as that of the death of the plaintiff.</p>

<p>Appeal from the Connty Court of Vermilion County; the Hon. J. F. Hughes, Judge, presiding.</p>

<p>In error to the Circuit Court of Moultrie County; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Edgar County; the Hon. J. F. Hughes, Judge, presiding.</p>

<p>In error to the Circuit Court of Fulton County; the Hon. Simon P. Shope, Judge, presiding.</p>

<p>Fraudulent Conveyance — Bill by Widow, Who Joined hilt, to Set Aside —Excuse.</p> <p>The widow of the grantor can not maintain a bill in equity to set aside a conveyance in which she joined as his wife, knowing it to be without consideration and for the purpose of defrauding creditors, unless she can excuse her participation in the act complained of. The excuse that she was too sick to care what she did, is insufficient when it appears that she knew the nature and effect of the deed.</p>

<p>Action by Broker to Recover Advances — Gambling Transactions — Options — Evidence.</p> <p>In an action by a broker to recover advances made to cover losses on purchases and sales of corn ordered by the defendants, it is held: That the instructions as to the strictness with which said orders should be construed were erroneous as applied to the case presented; that under the evidence the transactions in question were not gambling transactions, and that certain evidence as to the “kind” of transactions between the parties was improperly admitted.</p>

<p>In error to the Circuit Court of Vermilion County; the Hon. J. F. Hughes, Judge, presiding.</p>

<p>Action for Use and Occupation — Evidence of Title — Implied Agreement to Pay Rent.</p> <p>1. Possession for sixteen years, and. the payment of taxes under a claim of ownership, is sufficient evidence of title to sustain an action for use and occupation.</p> <p>2. Where it does not appear that a party is an intruder or trespasser •on land, that he holds it against the will of the owner, or that he is to enjoy the land without rent, the law will infer an implied agreement to pay rent.</p>

<p>Personal Injury — Action for Damages — Verdict, Sustained by Evidence —Instructions.</p> <p>In an action by a coal miner to recover damages for a personal injury caused by the falling of a rock from the roof of the defendant’s mine, it is held:</p> <p>That the evidence is sufficient to sustain the verdict in favor of the plaintiff; that an instruction to the effect that if the jury believed any witness had willfully testified falsely they might disregard his testimony except in so far as corroborated by other “ competent ” evidence, is not specially objectionable; and that the court properly refused to give certain instructions asked by the defendant, the point therein contained being fully covered by the instructions given.</p>

<p>Ejectment — Neiv Trial — Delay in Paying Costs — Insufficient Excuse.</p> <p>Upon petition for the vacation of the judgment and for a new trial in an action of ejectment, it is held that a failure to pay the costs for more than a year after the close of the term at which the judgment was rendered is not sufficiently excused by an allegation that the clerk had not computed the amount thereof because of the absence of the files in the hands of some unknown person, it not appearing that the petitioner had used due diligence.</p>

<p>In error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.</p>

G. W. Herdman, Judge, presiding. Statement hy Conger, J. In the fail of 1884 Harts and Foley contracted with Jacob Mangas to construct for them 100 corn plows at §15.50 each, §9 to be paid in cash and $6.50 to be credited on the account Mangas owed them, such payments to be made as the plows were completed. Payments were made from time to time as the plows were completed.

<p>In error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.</p>

James A. Creighton, Judge, presiding. Statement of the case by Conger, J. This is an action of debt by the city against a fire insurance company not incorporated under the laws of Illinois, to recover two per cent, upon the gross receipts of the company for the year 1885.

<p>Life Insurance— Suicide — Construction of Application and Certificate Together as one Instrument — Pleading.</p> <p>1. In an action brought on a certificate or policy of life insurance, the assured having committed suicide, it is held that the application, containing a stipulation excepting death from suicide from the risk, must be construed with the certificate as one instrument.</p> <p>2. An allegation that the assured “ did then and there immorally, wrongfully and wickedly” commit suicide, is substantially an allegation that he committed the act while sane,</p>

<p>In error to the Circuit Court of Sangamon County; the, Hon. J. J". Phillipps, Judge, presiding.</p>

<p>Appeal from the Circuit Court for Greene County; the Hon. Geo. W. Herdmae, Judge, presiding.</p>

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

<p>Claim of Surety Against an Estate — Practice.</p> <p>In a case where the question at issue is mainly one of fact, this court affirms the judgment of the court below, allowing the claim of a surety against an estate, upon a review of the record, without stating the case and its reasons at length.</p>

<p>Life Insurance — Surrender of Wife’s Policy by Husband — Equity Jurisdiction.</p> <p>’Where the husband surrenders a policy of insurance on Ms life, payable to his wife, to the insurance company, in exchange for a policy in favor of his children, and upon his death payment of the latter policy is made to the guardian of the children, the widow can not maintain a bill against the guardian for the amount of the policy, as a court of equity is without jurisdiction, and there is no privity between the parties.</p>

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

<p>Railroads — Killing of Stock — Verdict Sustained — Attorney Fees — Instruction — Practice.</p> <p>1. Where the evidence in support of the verdict is sufficient, if believed, this court will not interfere.</p> <p>2. In an action to recover damages from a railroad company for killing a horse, reasonable attorney fees may be recovered for the second, as well as for the first trial, although the new trial was granted by consent of counsel for plaintiff.</p> <p>3. This court has no basis on which to make an order for an_allowance of attorney fees to the appellee for services here, nor is there any convenient mode for its determination of such allowance, if the appellee is entitled thereto.</p>

<p>In error to the Circuit Court of Fulton County; the Hon. J. C. Bag-by, Judge, presiding.</p>

<p>Damages for Killing Sheep — Finding of Justice under Sec. 30, Ch. 8, R. S., not a Jzidgment — Attempted Appeal — Bond, Void — Estoppel.</p> <p>1. The finding of a Justice of the Peace in á proceeding under Sec. 30, Oh. 8, R. S., for proof of damages for sheep killed or injured, is in no sense a judgment, and no appeal lies therefrom.</p> <p>2. A bond given by a Supervisor upon an attempted appeal from such a finding is absolutely void, and it will not sustain an action.</p> <p>3. The obligors in such a bond are not estopped from, denying the recitals therein contained.</p>

<p>Landlord and Tenant — Term Must be Certain — Construction of Lease —Hule—Quantum Meruit.</p> <p>1. A lease for “ the whole time that he [the lessee] may be postmaster,” is held to have expired with the expiration of the commission held by him at the time of its execution.</p> <p>2. In every estate for years the term must be certain.</p> <p>3. Where the lessee holds over, the lessor may recover on a quantum meruit.</p> <p>4. It is a rule of construction that a contract should be supported rather than defeated.</p>

<p>Jurisdiction — Judgment of Court of Concurrent — When Not a Bar to Suit by Administrator on Notes — ■Fraud—Evidence.</p> <p>1. In all cases of concurrent jurisdiction the court which first obtains it will retain it to the end of the controversy, to the entire exclusion of others.</p> <p>2. A suit by an administrator, on notes payable to his intestate, is not barred by a judgment rendered by a court of concurrent jurisdiction in a fraudulent suit subsequently brought by the wife of the maker in the name of the administrator for her use, she having possession of the notes.</p> <p>3. Copies of the notes sued on are held to he competent evidence, the parties having agreed to their use and the defendant having wrongfully aided in placing the notes in the records of the other court.</p>

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

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

<p>Practice — Dismissal upon Order of Plaintiff.</p> <p>The court below is held to have properly dismissed the cause upon a written order of the plaintiff, there being no proof to impeach the validity and good faith of the order.</p>

<p>Right of Physician to Practice Medicine — Evidence—Sufficiency of.</p> <p>In an action by a physician to recover for medical services, slight evidence of his right to practice medicine is sufficient as against one who called him.</p>

<p>Municipal Corporations — Injury Caused by Excavation in Street by Lot Owner —City Liable for — Practice.</p> <p>1. The duty of a municipal corporation to maintain its streets in a safe condition can not be evaded or delegated to others, and it is liable for resulting damages if it authorizes or permits the owner of an abutting lot to make excavations in front thereof.</p> <p>2. This court will not consider an objection that the damages are excessive, which was not made on the motion for a new trial.</p>

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

J. W. Langley, Judge, presiding. Statement of the ease by Conger, J. This ease was brought into the County Court of Champaign County by appeal from a Justice of the Peace, where appellee sued appellants and one Meibach, to recover for the loss of a steer alleged to have been killed by falling into an open ditch while being driven along the public road, in September, 1885.

<p>Sales-Delivery to Common Carrier, a Delivery to Consignee-Sale of Liquor to Purchaser in another County-Conflict of Authority.</p> <p>1. As a general i~ule, a delivery to a common carrier is held to be a delivery to the consignee.</p> <p>2. Where liquor is sent by express by a dealer in one county to a pur-~ ~haser residing in another, the dealer can not be prosecuted in the latter cou~aty for illegally selling liquor therein.</p> <p>3. Where the question at issue has not been passed upon by the Supreme Court, and the authorities are conflicting, this court will adopt such rule as seems most consistent with sound reason and principle.</p>

<p>Chattel Mortgage of Property Held under Distress Warrant, Valid.</p> <p>1, A chattel mortgage is valid though at the time of its execution a third person holds the property under the mortgagor, and has or claims to have a special property therein.</p> <p>2. In the case presented, it is held that a chattel mortgage of property, which was at the time of its execution in the possession of a third person under a distress warrant, is valid.</p>

<p>In error to the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

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

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

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

O. T. Beeves, Judge, presiding. Statement of the case by Wall, J. This was replevin brought by appellants against appellee. The case was tried once before and appealed to this court, and judgment reversed15 Ill. App. 451. Arnspiger and Lovell were the owners of the property in controversy, which consisted of.a stock of groceries.

<p>Defective Bridge — Action, for Damages — Liability of Highway Commissioners — Instructions.</p> <p>1. In an action against Highway Commissioners to recover damages for injuries caused by a defective bridge, it is held that instructions, from which the jury no doubt inferred that the defendants were bound to know the danger and provide against it, are too broad.</p> <p>2. It seems that Highway Commissioners are not to be regarded as knowing what they might have ascertained as to the dangerous condition of a bridge; that in the discharge of their official duties they are only required to exercise their judgment as reasonably prudent men, and that the duty in question was something more than ministerial in character.</p>

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

<p>Foreclosure of Mortgage — Waiver of Objection to Amount of Decree~ Homestead — Surplus Proceeds of Sale, Protected — Judgment of Justice, Dormant after Seven Tears — Filing of Transcript.</p> <p>1. A mortgagee, by enforcing a decree of foreclosure by a sale of the mortgaged premises, waives any objection to the amount therein decreed to him.</p> <p>2. Where the mortgagee purchases the homestead of the mortgagor at a sale under foreclosure, he can not apply the surplus on other claims against the mortgagor, as to which the right of homestead has not been waived.</p> <p>3. The filing of a transcript of a Justice’s judgment with the Clerk of the Circuit Court more than seven years after it was rendered, creates no lien.</p>

J. W. Wilkins, Judge, presiding. Statement of the case by Conger, J. This was an action on the case for damages which the appellee claims to have sustained by the killing of fcmr horses.

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

<p>Sales — Growing Crops — Possession—Replevin to Recover Property Held by Constable — Official Character of Defendant — Evidence.</p> <p>I. Upon a sale of a growing crop the title and possession pass to the ven- ■ dee.</p> <p>2. The purchaser of a growing crop of corn, where the quantity is considerable, may have it cribbed on the premises where grown, without sub. jecting it to levy for the debts of the vendor.</p> <p>3. In the case presented, it is held, that the evidence shows a complete sale of the corn in question while growing, although it was to be gathered and cribbed by the vendor and the quantity was then to be ascertained or agreed upon by the parties.</p> <p>4. Where the defendant, in an action of replevin, defends on the ground that he was a Constable and took the property in question by virtue of an execution and the direct question of his official character is raised, he must show that he was a Constable de jure. Evidence that he was an acting Constable is inadmissible.</p>

<p>Construction of Statutes — Omission—Opening of Highway s on Toionship Unes — Sec. 57, Ch.lSIR. S. — Omission of Words. — “Either” Construed as Meaning “Each”■ — Mandamus.</p> <p>1. Statutes must be interpreted according to their intent and meaning, and not always according to their letter. When the words are not precise, definite and clear, such construction will be adopted as shall appear most reasonable and best suited to accomplish the general object of the statute. Where any particular construction would lead to an absurd consequence, it will be presumed that some qualification or exception was intended.</p> <p>2. Sec. 57, Oh. 121, R S., attempting to provide for the opening of roads, “ on township or county lines, or from one township into another,” is defective in that the words “ or township ” were inadvertently omitted after the word “county ” in the provision requiring the petition to be ‘1 signed by not less than twelve land owners residing in either county within three miles of .the road.” In the construction of said section this court supplies the omitted words, and holds that “ either ” must be read to mean “each.”</p> <p>3. Upon demurrer to a petition for a writ of mandamus to compel the Commissioners of Highways of the towns of North and South Litchfield to allot to each of said towns a part of a road along the line dividing the towns, for its maintenance, and to apportion the expense of locating the same, it is held: That the road in question was not located according to law, the requisite number of land owners of each township not having signed the original petition.</p>

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

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

<p>In error to the Circuit Court of Hancock County; the Hon. J. H. Williams, Judge, presiding.</p>

O. T. Reeves, Judge, presiding. Statement of the case by Congee, J. This is a controversy between two sets of the creditors of John R. Snyder, who was a banker, doing business in Chenoa, McLean County, Ill. On the 30th day of September, 1883, Snyder made a deed of trust of all his property, both real and personal, to John J. P. Odell. On the 4th of October, 1883, William Wikoff and Alfred R. Kidwell commenced suit in attachment against Snyder.

G. W. Herdman, Judge, presiding. On the 23d of October, 1875, Elizabeth Reddish (now Foyles) was appointed by the Probate Court of Jersey County guardian of her five minor children, including Luella J. Reddish. She was required to give bond with two sureties in the penal sum of §1,700. The bond was given, purporting to be executed by ¡Nathan Campbell and W. R. Seago, the appellant.

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

<p>Bill to Enforce Claim against Estate — Chattel Mortgage — Fraud.</p> <p>Upon a bill filed by two creditors of David Wright, deceased — one by simple contract and the other by a Justice’s judgment on which no execution issued during the life of the decedent — neither of whom has proved his claim in the County Court against the estate, to reach the proceeds of the sale under an alleged fraudulent chattel mortgage, of most of decedent’s estate, the defendants being the mortgagee and the administrator, it is held: That the bill is in effect a creditor's bill, and that the decree can not be sustained, as it ignores the County Court and the rights of other creditors and of the family of the deceased.</p>

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

<p>Appeal from the County Court of Moultrie County; the Hon. Jonathan Meeker, Judge, presiding.</p>

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

<p>Claim, against Estate for Services in Family of Deceased — Gratuitous Services — Presumption—Burden of Proof- — Instructions—Evidence—Question for Jury.</p> <p>1. The fact that a person residing with another has rendered gratuitous services raises no presumption that subsequent services of different character and rendered under different conditions are also gratuitous.</p> <p>2. Where evidence tends to show that a claimant against an estate lived with the deceased as a member of her family, the burden is upon the claimant to show otherwise.</p> <p>3. Instructions which contain all that is really applicable and important, although not every instruction is itself entirely accurate, are sufficient.</p> <p>4. In the case presented, the sole question being whether the claimant was a member of the family of the deceased, it is held: That said question was for the jury, and that certain evidence touching the circumstances of the claimant, the intention of the deceased to make some provision for her and the value of her services and provisions furnished, is not objectionable.</p>

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

<p>Action to Recover Damages Resulting from Fire Set by Locomotive— Secs. 63 and 104, Ch. 114, Starr & C. Ill. Stat. — Negligence—Question for Jury ^Evidence — Slight Error in Instruction.</p> <p>1. Under Sec. 63, Ch. 114, Starr & C. Ill. Stat., it is the duty of a railroad corporation to keep its right of way clear from all dead grass, dry weeds and other dangerous combustible material, during the winter as well as during the summer.</p> <p>2. In an action for damages resulting from a fire set by defendant’s locomotive, in January, it is held that evidence that defendant cut and burned the grass and weeds upon its right of way in September or October previous, is not sufficient to show a full compliance with the law.</p> <p>3. Under the evidence presented, this court holds that it was for the jury to say whether the defendant was guilty of negligence under said section or Sec. 104 of said chapter, and declines to interfere with their verdict.</p> <p>4. A judgment will not be reversed for a slight error in an instruction which could have worked no injury to the appellant.</p>

<p>Execution against City — Proceeding to Recover Penalty for Sale of Intoxicatiug Liquor — Repeal of Ordinance — Practice.</p> <p>In a proceeding to recover a penalty for the sale of intoxicating liquor in violation of an ordinance, this court declines to decide the effect of a repeal of the ordinance in question, as no brief has been filed by appellee, but reverses the. judgment of the court below because it awards execution against the city.</p>

<p>In error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.</p>

<p>Action by Sister against Brother on Note and for Wages — Question for Jury — Instructions.</p> <p>1. Where the question is one of fact and the evidence is conflicting, it is for the jury to determine which side has the preponderance of the evidence.</p> <p>2. In an action by a sister against her brother to recover wages claimed to be due her for services in his family, and also to recover on a note, it "is held that, as-the question of liability rested upon an alleged express contract, a certain instruction complained of contained no serious error.</p>

<p>Mechanic's Lien — Averment in Petition as to Lot'Improved— Completion —Time of — Extension of Time of Payment Beyond One Year — New Note —Effect of Extension on Lien.</p> <p>Upon a petition for a mechanic's lien, a demurrer having been sustained by the court below, it is held: That an averment that the improvements in question were to be made upon a certain lot, although the contract refers to no particular lot or tract, is a proper averment of fact, the truth of which the demurrer, admits; that the completion of said improvements dates from the malting of a working test; that whether a note at nine months was paid by the giving of a new one depends upon the intention of the parties; that the contract, as existing when the performance was begun, must determine for all parties whether a lien was created, and for subsequent creditors,</p> <p>• incumbrancers and purchasers when the limitations prescribed in Sec. ‘28 began to run; and that, subject to the operation of said section in this view of the contract, no indulgence between the parties to it in respect to the time of completing the work, or of paying for it, divested the lien when once attached.</p>

<p>In error to the Circuit Court of Vermilion County; the Hon. J. W. Wilkins, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Moultrie County; the Hon. J. F. Hughes, Judge, presiding.</p>

<p>Defective Sidewalk — Location of — Injury—Action for Damages — Instructions — Negligence—Definition—Notice—Question for Jury.</p> <p>1. Where a sidewalk, built and maintained by a municipality within its corporate limits, is located on the right of way of a railroad company and is necessary for the use of the public, the corporation is responsible for its condition.</p> <p>2. Neither actual nor constructive notice is required to be shown in case of defective construction. n</p> <p>3. Negligence is the want of that degree of care which the law requires in a given ease.</p> <p>4. An omission in an instruction is not error if it is supplied elsewhere in the instructions given.</p> <p>5. Where the evidence is conflicting this court will not interfere with the verdict of the jury.</p>

<p>Negotiable Paper — Action against Payee as Indorser — Former Adjudication as to fact of Payment before Transfer.</p> <p>In an action against the payee as indorser on a note transferred to plaintiff after maturity and payment, it is held: That the defendant is liable for the amount of the note, and that the judgment establishing the fact of payment, in a suit by the plaintiff to foreclose a trust deed securing the note, is conclusive, the defendant having been a party to the foreclosure proceedings.</p>

<p>Railroads — Killing of Stock — Negligence in Leaving Snow in Cattle Guard — Reasonable Time for Removal — Question for Jury — Instruction.</p> <p>1. The statutory duty of a railroad company to maintain suitable and sufficient cattle guards to prevent stock from getting on its track is not complied with when, for an unreasonable time, it permits its guards to remain filled up with snow, ice or any other substance which destroys their usefulness.</p> <p>2. In the case presented it is held: That an instruction touching the liability of the defendant for permitting snow and ice to remain in the cattle guard fairly presented the law to the jury, and that the question whether a reasonable time had elapsed for the removal of the snow and ice, was for the jury.</p>

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

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

<p>Appeal from the Circuit Court of Vermilion County; the Hon. J. W. Wilkin, Judge, presiding.</p>

<p>Negotiable Paper — Notes—Subscription to Educational Institution— Condition — Parol Evidence.</p> <p>In an action by an educational institution on notes made as subscriptions on a proposition to raise $25,000, in sums of $100 and upward, the entire amount to be subscribed before any subscription should become binding, said subscriptions having been made at a time when said institution was engaged in raising a similar fund in sums of $500 and upward, it is he'd: That the acceptance, on account of said proposition, of a subscription of $5,000, constitutes no defense, said second sum of $25,000 having been raised without said subscription, and that parol evidence is admissible to show that the aggregate amount named in the condition of the notes has been actually obtained.</p>

<p>Railroads — Injuries to a Calf while in Transportation — Vicious Disposition — Review of Evidence — Negligence—How Determined.</p> <p>1. Whether a given act is negligent or improper is to be determined by the surroundings and conditions existing at the time, and which were, or ought to have been, known to the party sought to be charged.</p> <p>2. In an action against the appellant, as a common carrier, to recover damages for injuries to a calf alleged to have been sustained while in transportation through the negligence of the defendant’s servants, it is held: That the verdict in favor of the plaintiff is not supported by the evidence; that the calf was properly unloaded at the depot instead of at the stock pen; that, from the evidence presented, the injury resulted from the calf’s vicious disposition, unprovoked by any misconduct by the defendant or its servants, and that an instruction limiting the exceptions to the defendant’s liability to the act of God and the public enemy, was erroneous.</p>

<p>Action on Lost Note — Instructions—Errors—Extent of Search Required —Original Consideration — Question for Jury.</p> <p>In an action on a lost note, alleged to have been made by the defendant’s intestate, the only issue of fact being as to its genuineness, it is held: That many of the instructions, which were too numerous, were erroneous; that the holder was not required to make diligent search for the note “ wherever it might be found;” that it was error to assume that the plaintiff “ knowingly introduced to the jury false and fabricated testimony;” that the jury were improperly authorized to disregard the evidence of certain witnesses; that the suit was not for the original consideration; that it was for the jury to determine the weight of the evidence as to the genuineness of the note, and that it was error to instruct the jury that, in the absence of evidence as to what the consideration was, they might refuse to find the note genuine from evidence of handwriting alone.</p>

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

<p>Exemptions — ¶ 14, Ch. 52, Starr & C. Ill. Stat. (Act of1877) — Schedule —Refusal to Malee — Subsequent Compliance — Reasonable Time — Question for Jury.</p> <p>1. The positive refusal by the owner of personal property to make a schedule at the time of the levy under execution, upon due notice and opportunity given, does not of itself prevent or estop him from making such schedule within a reasonable time thereafter.</p> <p>2. What is a reasonable time for making and delivering the schedule depends upon the special circumstances of each case, and is a question for the jury. In some cases it should be before levy. In others it' will be in time if before sale.</p> <p>3. In the case presented" no question of fraud arises. The owner’s refusal was in ignorance of his duty and without intention to waive his claim. He made and delivered the schedule within a few hours, and as soon as he could get legal advice. Whether the time was reasonable was a question, for the jury.</p>

<p>In error to the Circuit Court of DeWitt County; the Hon. G.W. Herdman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Johnson' County; the Hon. David J. Bakeb, Judge, presiding.</p>

<p>Criminal Lato — Elections—Indictment under Sec. 86, Ch. 46, E. S.— Contents of — Alteration of Ballots — Election of Town Officers — Application of General Laws.</p> <p>1. An indictment charging the defendant, as judge of an election, with having altered and defaced ballots legally voted at such election, need not contain the names of the electors whose ballots are alleged to have been altered.</p> <p>2. The mere fact that a name on a ticket is scratched raises no presumption against a judge of the election that he made the erasure.</p> <p>3. It is no objection to such an indictment that the defendant is charged therein as a judge of election at an election for township officers. The general laws of the State apply to elections for town officers at elections held under the Township Organization Act.</p> <p>4. In the case presented it is held that the evidence does not show the defendant to have been a “ legally qualified judge of election,” another person having been chosen moderator of the town meeting.</p>

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

C. C. Boggs, Judge, presiding. Statement of the case, by Pillsbury, J. The record in this case shows a summons and return as follows: State of Illinois, 1 Edwards County. f The People of the State of Illinois to the Sheriff of McLean County.

<p>In error to the Circuit Court of Edwards County; the Hon. C. C. Boggs, Judge, presiding.</p>

<p>Foreclosure — Usury—Commutation of Amount due on Note — Reversal for Error in Remittitur — Mistake in Amount of Note — Practice.</p> <p>1. This court reverses a decree of foreclosure on the ground that it does not satisfactorily appear that a remittitur, filed by the complainant, will correct an error in the amount of the decree.</p> <p>2. While this court is not inclined to disturb the finding of the court below on the question whether there was a mistake in the amount of the note sued on, it is suggested that either party should be allowed to introduce further evidence on that issue, if desired, upon the rehearing.</p>

Amos Watts, Judge, presiding. Statement of the case by Wilkin, P. J. This was a chancery proceeding to foreclose a trust deed.

Clair County; the Hon. William H. Snyder, Judge, presiding Statement of the case by Pillsbury, J. Company “A,” Belleville Guards, was organized as a part of the militia of the State, and for service rendered the State, and from other sources, it became possessed of quite a sum of money which it deposited with the treasurer of the company, and from time to time, loaned the same.

<p>Appeal from the Circuit Court of Union County; the Hon. Oliver A. Barker, Judge, presiding.</p>

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

Jesse J. Phillips, Judge, presiding. This action is based upon a promissory note as follows: $300.00. Vandalia, Ills., Dec. 10th, 1884. Six months after date, for value received, we or either of us promise to pay to the order of the Farmers and Merchants National Bank of Vandalia, three hundred dollars with interest at eight per cent, after maturity.

Louis; the Hon. William P. Launtz, Judge, presiding. Statement of the case by Wilkin, P. J. On the morning of May 13, 1886, appellee, who was employed by appellant, took passage with other laborers on a construction train of appellant, consisting of locomotive engine and caboose car, at Higbee, Missouri, a station on the line of appellant’s railroad. This crew of laborers had over them a foreman named Cavenaugli, also employed by appellant.

<p>Action of Trespass against Sheriff and Deputy Sheriff — Right of Assignee of Plaintiff in Execution to Control Process — Notice—Fraudulent Sale — Possession—Instructions—Practice.</p> <p>1. The assignee of the plaintiff in an execution has an undoubted right to control such process. But an officer engaged in the service of process is not bound to regard the directions of one whose interest, therein is in no way indicated by or upon such process, or otherwise brought to his attention.</p> <p>2. in an action against a Sheriff and Deputy Sheriff for taking certain horses, it is held: That the evidence justifies the conclusion that the supposed sale of the horses by the defendant in certain executions to his son, the appellant, was fraudulent and void as against creditors; that there had been no delivery of the horses to appellant; that it does not appear that the officer had notice of the assignment of the judgments to the appellant and of his ownership of the executions prior to the levy and sale, and that the instructions when considered together were substantially correct.</p> <p>3. Where the court has sustained an objection to the admission of documentary evidence, the error, if any, is cured by the subsequent admission of such evidence when offered by the adverse party.</p>

<p>Administration — Bill to Recover Amount ■of Claim Allowed through Fraud and Collusion — Advancement—Statute cf Limitations.</p> <p>Upon a bill filed to recover the amount of a claim allowed in the County Court against an estate, it is held: That the claim presented by the father of the deceased was for money advanced to his son as a gift; that it was barred by the Statute of Limitations, and that it was allowed through fraud and collusion between the claimant and the administrator.</p>

, Judge, presiding. For a statement of the case and the conclusions of this court on the merits, see the preceding report of the opinion heretofore filed herein.

Statement of the case by Welch, J. This was a bill filed by the appellant to enjoin the enforcement of a judgment rendered in favor of Eldon H. Baker and Edward A. Baker against Michael Fox, in attachment proceedings against said Fox, and to perpetually enjoin the appellees from selling certain lands and premises in said bill described.

Charles Blanchard, Judge, presiding. Statement of the case by Lacey, J. The .appellant was elected one of the Bo ad Commissioners of the Town of La Salle, on the 7th of April, 1880, and held the office till April, 1883, when his successor was elected. During the first year James Kinder and Edward McGuire were his associates; the second year Charles Degan and James Kinder, and the third year Charles Degan and Richard O’Halleran.

<p>Practice — Bill of Exceptions — Time to File — Extension of — Want of Jurisdiction — Notice.</p> <p>1. When a Judge by an order, has fixed the time within which to prepare. tender and file a bill of exceptions, and the term at which it was fixed having expired and no motion for an extension of time having been made, either in vacation or at a subsequent term prior to the expiration of the time po fixed, he is without jurisdiction further to extend the time.</p> <p>2. In the case presented, it is held: That a notice of an application for an extension of time within which lo file a bill of exceptions, if given as claimed, was insufficient, no time and place for making the application having been fixed, and the notice not having been in writing.</p>

<p>Trust Deed — Release of — Cross-Bill to Restore — Fraud—Acceptance of New Note as Ratification — Review of Evidence.</p> <p>Upon a writ of error to review a decree dismissing a cross-bill, filed to determine the priority and extent of the liens claimed by the cross-complainant in certain lands, and to have the cancellation of a certain trust deed declared void and the trusts therein established, it is held: That the record does not present sufficient evidence to sustain the charge of fraud in procuring the release of said trust deed; and that the subsequent acceptance by the cross-complainant of a new note for the indebtedness covered by said trust deed, with full knowledge of said release, was a ratification thereof.</p>

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

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

C. W. Upton, Judge, presiding; Statement of the case by Welch, J. Peter H. Evans, prior and up to the 29th day of January, 1885, had been engaged in the sale of agricultural implements, wagons, sewing machines, lumber, etc., at Somonauk in De Kalb County, Illinois. During the time he was thus doing business he had procured John Clark and Stephen D. Wright, two of the appellees, to sign notes for him as sureties.

T. M. Shaw, Judge,, presiding. Statement of the case by Welch, J. This was an action of assumpsit brought by appellee against appellant upon a certificate of membership issued by the appellant to Thomas W. Cain, on the 14th day of May, 1883, by which the sum of $2,500 was to be paid within sixty days after the death of said Cain, to his wife, the plaintiff below and present appellee.

<p>Action to Recover Damages for Orerflotving Lands-^Conflict of Evidence —Questions for Jury — Instructions—Pleading.</p> <p>1. Where the evidence is conflicting and there is enough to support the finding, this court will not interfere with the verdict on the ground that it is against the evidence. In such a case the court will not attempt nicely to weigh the evidence on each side, and will grant a new trial only when the verdict is manifestly against the evidence.</p> <p>2. The plaintiff in his declaration must clearly state the nature of the defendant's liability, and must clearly prove that liability as laid.</p> <p>3. In an action to recover damages for overflowing plaintiff’s land, it'is held: That, although the evidence is conflicting, the proof sustains the declaration; that the questions involved were for the jury, and that the instructions given for the plaintiff properly submitted the controverted questions to the jury.</p>

Statement of the case by Lacey, J. This cause of action is based on three promissory notes of date January 2, 1883,-for $1,192.16, due December 15, 1885, with interest at six per cent., executed by the H. A. Pitts’ Sons’ Mfg.

<p>In error to the Circuit Court of Livingston County; the Hon. N. J. Pillsbury, Judge, presiding.</p>

<p>Equity Jurisdiction to Enjoin Judgments at Law — Judgment by Default on Insurance Policy — Service on “ Late Agent ” — Sufficiency of — Fraud.</p> <p>1. As a general rule a court of equity will not take jurisdiction to enjoin judgments at law where there is an adequate remedy at law. It will not review a judgment at law as a court of errors.</p> <p>2. The practice of resorting to courts of equity to enjoin judgments at law should not be encouraged.</p> <p>• 3. Upon a bill to enjoin a judgment by default on a policy of insurance, on the grounds that service on a “ late agent ” of the complainant company was insufficient and that said policy had been fraudulently altered, it is held: That the remedy at law by writ of error is complete, and that if the. judgment was obtained without jurisdiction, it is void even in a collateral proceeding.</p>

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

<p>In error to the Circuit Court of Winnebago County; the Hon. William Brown, Judge, presiding.</p>

Celarles Blahchard, Judge, presiding. Statement of the case by Welch, J. On May 25th at the, regular May term of the Will County Circuit Court, Henry Hellman recovered a judgment against August Schiffer for the sum of §7,203.

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

<p>Chattel Mortgages — Sale to Mortgagee — Validity of — Change of Possession — Sufficiency of — Loan—Practice—Trial without Jury — Finding of Court — How far Conclusive.</p> <p>,1. After verbal sale and delivery of chattel property .or after bona fide delivery of mortgaged chattels to the mortgagee in satisfaction of the debt, the vendee or mortgagee may temporarily loan the same to the vendor or mortgagor or employ the latter to use the chattels in the service of the vendee without invalidating his title. ‘ '</p> <p>' 2. Where the mortgagor merely hitches horses to the mortgagee’s rack for a half hour and then borrows them, the possession of the mortgagee is not long enough to apprise all parties of the change of ownership.</p> <p>3. Where a jury is waived, the finding of the court, like the verdict of the jury, is conclusive, unless it is manifestly against the weight of evidence.</p>

<p>Chattel Mortgages — Sale to Mortgagee — Validity of — Change of possession — Loan—Replevin—Evidence—Vendor can not Impeach Title of Vendee.</p> <p>1. After a valid sale and delivery of chattel property, or after a Iona fide delivery of mortgaged chattels to the mortgagee in satisfaction of the debt and possession taken by the mortgagee, the vendee or mortgagee may temporarily loan such chattels to the vendor or mortgagor, or employ the latter to use them in his service without invalidating his title. But in order to make such transfer of property valid as against third parties there must be a substantial change of possession of such character or duration as would reasonably notify other persons that the property was transferred and the ownership changed.</p> <p>2. In an action of replevin to recover certain personalty as the property of the mortgagor thereof, it is held: That, under the evidence, there was no apparent change of possession of a horse, for which the mortgagor had given a bill of sale to the mortgagee; and that evidence of statements made by the former as to the date of the bill of sale was properly excluded, as the vendor can not be heard after sale to impeach the title of the vendee.</p>

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

<p>Appeal from the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will County j the Hon. Dokrance Dibell, Judge, presiding.</p>

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

<p>Clause 9, Attachment Act, Sec. 1 — Construction of Proviso — Recital in Receipt, a Sufficient Writing — Fraud.</p> <p>1. The substance only of the statements constituting the fraud is required to be reduced to writing, to coniply with the proviso contained in the 9th clause of Sec. 1 of the Attachment Act.</p> <p>2. In the case presented, it is held that a receipt given to the “former guardian ” of certain wards, and signed by the defendant as “ succeeding guardian,” is sufficient within said proviso to charge the defendant who falsely represented that he had duly qualified as such guardian.</p>

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

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

<p>Dominant and Servient Estates — Drainage—Open Ditch — Right to Fill —Injunction—Parol License — Revocation—Review of Authorities.</p> <p>1. The owner of a dominant estate can not by any act of his own acquire the right to collect the surface water upon his land by artificial channels and thus flood his neighbor’s land without" his consent or at least acquiescence.</p> <p>2. When a person makes an artificial ditch upon his own land for his own accommodation, he is not obliged to keep it open as an artificial drain for the purpose of draining the lands of others.</p> <p>3. A parol license to turn water, which has been artificially collected, into a ditch upon the land of another, is valid and revocable.</p> <p>4. In the case presented, it is held that the owner of the dominant estate is not entitled to an injunction to prevent the filling up of an open ditch on the servient estate.</p>

<p>Landlord and Tenant — Abandonment—Action to Recover for Worlc and Labor Performed — Claim of Eviction, not Sustained — Refusal of Landlord to Malee Repairs — Remedies of Tenant.</p> <p>1. Where the landlord in violation o£ his covenant fails to make repairs, the tenant may make them himself, charging the expense against the landlord, or sue for damages for breach of covenant.</p> <p>2. In an action by a tenant against the landlord to recover for work and labor performed by him on the demised premises, after an alleged eviction, it is held: That the failure of the landlord to furnish material for repairs did not amount to an eviction; that certain evidence touching such failure was improperly admitted; that this error was cured by subsequently excluding said evidence; that the evidence does not show such misconduct on the part of the landlord toward the servants of the tenant, nor such action touching the matter of his boarding as to amount to an eviction; and that certain instructions were erroneous, one of which is particularly objectionable because unsupported by any evidence presented.</p>

<p>Judicial Officers — Sow far Protected by Official Character — Justice of Peace — Illegal Commitment to County Jail — Ministerial Acts — Action of Trespass — Evidence—Instructions.</p> <p>1. The judicial character of a Justice of the Peace only protects him from personal liability when the act complained of is within his jurisdiction. ■ •</p> <p>2. In an action of trespass against a Justice for false imprisonment, it is held: That the warrant, trial and fine of plaintiff for maintaining a nuisance, were regular and within the jurisdiction of the Justice; that the order of commitment, which was in the form of a commitment to bind the defendant over to the County Court, placing no limit upon the imprisonment, was irregular and not justified by the judgment; that the issue of the writ was a ministerial act; that the evidence touching plaintiff’s illness and its cause was properly admitted under an amendment to the declaration; and that the instructions, though not strictly accurate, were sufficient.</p> <p>' 8. It seems that Sec. 1, Act of April 12,1879, does not give the Justice the option to designate the place where the offender may be imprisoned, but that said place must be fixed by city or village ordinance.</p>

<p>Railroads — Action for Damages for Personal Injuries Sustained by Passenger in a Collision — Pleadings—Variance—Evidence—Recovery of $5,000, not Excessive — New Trial — Newly Discovered Evidence.</p> <p>1. In an action to recover damages for personal injuries suffered by the plaintiff in a collision while a passenger on the road of the defendant company, it is held: That there was no variance between the declaration and the testimony; that proof of the breaking down of the plaintiff’s nervous system and that his nerve trouble might result in death, was properly admitted; that the rules of pleading did not require the plaintiff to set out in his declaration the evidence relied upon; that the evidence sustains the verdict for the plaintiff; that this court will not interfere with the verdict, the credibility of the witnesses and weight of the evidence being questions for the jury; that the verdict for $5,000 is not excessive; that the court below properly refused to grant a new trial on the ground of newly discovered evidence.</p> <p>2. Newly discovered evidence, which could have been procured by due diligence, or which is merely cumulative, unless decisive in character, is insuEcient as ground for a new trial.</p>

<p>Practice — Execution against School Directors — Motion for Neto Trial— Sec. 56, Practice Act — Motion to set Aside Judgment — Discretion.</p> <p>1. It is error to award general execution upon a judgment against, a Board of School Directors. Such judgment can only be enforced as provided in ¶ 50, Chap. 122, Starr & C. Ill. Stat.</p> <p>2. Under Sec. 56 of the Practice Act the trial court must entertain á motion for a new trial when it is duly presented in writing during the term at which judgment is entered.</p> <p>3. When the defendant was not represented at the trial, a motion to set aside the judgment is addressed to the discretion of the court.</p>

<p>Credibility of Witnesses — Question for the Jury -Newly Discovered Evidence.</p> <p>1. Where the question involved depends on the credibility of the witnesses, this court will not interfere with the finding of the jury.</p> <p>2. Newly discovered evidence which is merely cumulative is insufficient as ground for a new trial.</p>

<p>Appeal from the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.</p>

<p>Practice — Question for Jury — Objections, not Raised Below — Newly Discovered Evidence.</p> <p>1. Where the question involved is one of fact, this court will not interfere with the verdict of the jury unless it is clearly against the weight of evidence.</p> <p>2. An assignment of error based on newly discovered evidence does not lie when it was not specified in the motion for a new trial.</p> <p>3. An objection, raised here for the first time, to the filing of counter affidavits on a motion for a new trial, can not be considered by this court.</p>

<p>Highways — Obstruction—Action for Penalty — Evidence—Act of 1851— . Sec. 52, Chap. 121, R. S. —Official Action — Presumption of Regularity.</p> <p>1. In an action to enforce the statutory penalty for the obstruction of a highway, it is held: That the verdict for the plaintiff is supported by the evidence; that the order of the Commissioners, laying out the road, was properly admitted, although the record showed no assessment and payment of damages, the act of 1851 not requiring a record of anything but the order; that Sec. 52, Chap. 121, R. S., is also applicable; that the evidence shows the 11 road was duly established and opened; and that it established the existence of the road by user for a period of more than twenty years prior to the alleged obstruction.</p> <p>2. Sec. 52, Chap. 121, R. S., making the Town Clerk’s record prima facie evidence of the regularity of official action in relation to highways, applies where the road was established before as well as after its enactment.</p>

<p>Appeal from the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.</p>

<p>Sales — Possession Retained hg Vendor — Fraud—What Constitutes Change of Possession — Replevin.</p> <p>I. An absolute sale of personal property, where the possession is permitted to remain with the vendor, is fraudulent per se and void as to creditors and purchasers.</p> <p>2. To constitute a change of possession there must not only be a delivery to the vendee but a continuing possession by him.</p> <p>3. In an action of replevin by the vendee of personal property against an officer who holds under a levy upon execution against the vendor, it is held; That there was no substantial change in possession, and that the circumstances indicate fraud in fact and in law.</p>

<p>Action for Damages for Removing Structure from Race-way — Evidence —Judicial Notice — Authority of Agents of Corporation — Possession as Evidence.</p> <p>1. In an action to recover damages for removing a certain structure from a race-way which crosses plaintiff's lot, it is held: That the evidence is ample to show that the Elgin Hydraulic Company was the owner of the race-way and had the right to remove obstructions therefrom; that the act incorporating said company being a public act, the courts are bound to take judicial notice of its incorporation; that the plaintiff admitted the incorporation of said company by making it a party defendant; that the evidence shows that the directors of the company, a portion of the defendants, acted in pursuance of the request and order of the company; that no former resolution of the board of directors was necessary to authorize such work; and that the evidence that the structure removed was an obstruction sufficiently supports the finding of the court below.</p> <p>2. Possession itself, as to either personal or real property, as against one who can show no title, is evidence of ownership.</p>

<p>Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the. Circuit Court of Will County.</p>

<p>Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>Landlord and Tenant — Irregular Distress Warrant — Acquiescence-Instructions — Costs—Order to Return Property.</p> <p>In a proceeding claimed to be by distress, it is held: That the distress warrant which authorized the bailiff to take the landlord’s grain rent was an irregular and illegal way of compelling the tenant to make a division according to the lease as claimed by the landlord; that the proceedings under the warrant with the acquiescence of the defendant amount to full satisfaction of the plaintiff’s claims; that the verdict for the defendant was proper; that said verdict should not be disturbed on account of any irregularities contained in the instructions; that the plaintiff was not entitled to costs; and that the court erred in ordering a re turn _ of the property taken under the pretended distress proceedings.</p>

<p>Appeal from the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Iroquois County; .the Hon. Alfred Sample, Judge, presiding.</p>

Statement by Welch, J. Tliis was an action of assumpsit brought by the appellees against the appellants on the 29th of August, 1885, upon two promissory notes; one for the sum of §450 purporting to be executed by the appellants payable to O. H. Queal, and by him assigned to the appellees ; the other for the sum of §1,500 purporting to be executed by the appellants payable to Kate E. Queal and H. S. Towle, adm’rs, etc., by them assigned to John H. Queal, and by him, under the…

<p>Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p> <p>Statement by Lacey, J. This was a suit brought by the appellant in December, 1883, to recover for a bill of lumber which he claimed to have sold to appellee and which was used by the latter in building his dwelling house, in the spring of 1882. The bill was for $1,503.67.</p> <p>Upon proper issues being joined the case was tried by a jury which found a verdict in favor of the appellee and this appeal is taken. The appellant on the trial swore that he sold the lumber to appellee by an agreement with him that the lumber was to be charged to him and to be sent to him at the order of one Lamb, who was a building contractor and had entered into a contract with appellee to build him a house and furnish the labor and materials for the sum of $3,900. The appellee, however, contends that he had no such contract with appellant but that Lamb purchased the lumber of appellant on his own account and that he had nothing to do with the dealings between appellant and Lamb.</p> <p>The appellant, to maintain the issues on his side, produced himself as a witness and his books of account, showing that the lumber was all charged to appellee at the time it was procured and not to Lamb. He also testified that he had an express agreement with appellee that the lumber was to be sold to him and charged to him at Lamb’s order, and that the lumber was so sent. The contract with appellee was made in May, 1882, about the time the contract was let by appellee to Lamb to build the house and before any lumber was furnished. Appellant also produced witnesses in corroboration of his own testimony to show certain statements made by appellee in their presence. These witnesses are James Y. Caughlin, S. S. Fairfield and D. A. Lamb. Fairfield, whose shop was across the street from Byrne’s office, testified to having a conversation with appellee before the house was commenced and bid on the work himself.</p> <p>Afterward he had a conversation -with him about the letting of the contract and appellee told him that there was a man whose figures were $300 or $900 less than witness’s. lie (possibly a week afterward) heard a conversation between appellant and appellee back of appellant’s office near the sidewalk; witness was going across to pick up some lumber from four to ten feet from them. They were talking about the lumber for the house. Appellee said “ to send the lumber and he would pay for it or see it paid.” Appellee said something about going on Lamb’s bond. John W. Caughlin, appellant’s bookkeeper at the time, heard a conversation between appellant and appellee in the former’s office just after a conversation outside the office in June, 1882, in which appellee said to appellant, “as I am going to pay for the lumber I want- good lumber;” and appellant replied, “ Mr. Hartshorn, if there is a stick or board goes out there that ain’t satisfactory send it back.” Also witness presented the bill in suit to appellee for payment September 3, 1882, and told him the amount, and he said “ Don’t I want more than that ? ” I told him I didn’t know that he would. “ Well ” says appellee,' “ that is all right, I will come up and see Mike.”</p> <p>And D. A. Lamb testified in behalf of appellant in rebuttal: “In early part of September, 1882, Hartshorn said to me that this lumber bill of Byrne’s must be getting pretty large and asked me if I knew how much it was, and 1 told Hartshorn it was about $1,500.” Witness had another conversation with appellee after that about the cost of the work done on the house by witness, and appellee said to him, “There is that lumber bill of Byrne’s of $1,500; that" must be paid.”</p> <p>The appellee denied on the witness stand that he had ever authorized appellant to let Lamb have lumber on his account. He also denied the conversation with Caughlin when the. bill of appellant was presented for payment. Lamb didn’t do much after September 9th, after the plastering went on. Appellee also denied the conversation with Lamb in the manner Lamb had testified to.</p> <p>The appellee was corroborated by the testimony of one Horace W. Scholfield, who testified to having a conversation with appellant in regard to sending for the doors and blinds for the appellee’s house, in presence of Caughlin, in which appellant said he would not furnish them; that “Lamb had got évery dollar’s worth of lumber on that job or any other unless he paid in advance.” The evidence showed that appellant had accepted an order from D. A. Lamb, the contractor, on the appellee, about September 8,. 1882, for $1,503.67 for this lumber bill, and which appellee refused to accept or pay.</p> <p>The above, was substantially the case as it appeared before the jury, with the exception of some of the attending circumstances given in evidence.</p>