Volume 22 — Illinois Appellate Court Reports

<p>Fraud — Insurance—Combination Building — Action on Notes Given for Premiums — Consideration—Failure of — Expression of Opinion — Degree of Vigilance Bequired — Agency—Evidence.</p> <p>1. Mere expressions of opinion employed in urging or importuning another to engage or invest in any matter are regarded as mere inducement, and form no ground upon which to base fraud.</p> <p>2. The law requires men in their dealings with each other to exercise proper vigilance and to apply their attention to those particulars which may be supposed to be within reach of their observation and judgment, and not close their eyes to the means of information which are accessible to them.</p> <p>4. In an action on four promissory notes given in payment of insurance premiums, it is held: That certain representations made by the agent of the plaintiff touching the rate of insurance were not fraudulent; that if the policy on a sheep barn, which was used for other purposes, was worthless, it would not justify the repudiation of all the notes; that certain instructions, to the effect, that the defendant is not liable if the agent of the plaintiff made any false statements, were erroneous; and that certain evidence was improperly admitted.</p>

<p>In error to the Circuit Court of Whitesides County ; the Hon. John V. Eustace, Judge, presiding.</p> <p>Statement by Welch, J. On the 28th day of April, 1883, the defendant in error loaned to the plaintiff in error the sum of $550 for the term of one year, with interest at the rate of eight per cent, per annum. The interest for the year was paid in advance. To secure the payment of this money, the plaintiff in error together with one ¡Richard Alldritt as security made, executed and delivered to the defendant in error their promissory note and power of attorney in the words and figures as follows:</p> <p>“$550. Morrison, III., April 28, 1883.</p> <p>“ One year after date we promise to pay to the First ¡National Bank of Morrison, or order, the sum of five hundred and fifty dollars, with interest at eight per cent, per annum from maturity until paid; value received.</p> <p>“And it is expressly agreed that if default be made in the payment of the interest when due, the entire principal shall become due and payable, and the holder of this note may proceed at his option to collect the same. And we hereby appoint any attorney of any court of record in any State or Territory of the United States to appear for us in any court, in term time or vacation, at any time after date, and waive the issue and service of process and confess a judgment against us in favor of the then holder hereof, for the amount of the above note, also interest then due, and costs, including $60 attorney’s fee, and to file a cognovit for that amount, and an agreement releasing all errors and waiving all appeal in said cause, and all advantage to which we may be entitled by virtue of any and all exemption laws of the State, and any State or Territory where judgment may be entered by virtue thereof, and that no bill in equity shall be tiled to interfere with the opera-] tion of said judgment, and hereby consent to immediate execution upon the judgment so rendered. All signers to this note are principals. ¡No extension of the time of payment, with or without our knowledge, by receipt of interest or otherwise, shall release us, or either of us, from the obligations of payment.</p> <p>“Witness our hands and seals the day and year above written.</p> <p>“ Thos. Alldbitt, [seal]</p> <p>“ ¡Richard Alldbitt. [seal] ”</p> <p>That at thé maturity of this note and on the 28th day of April, 1884, it was further agreed between the plaintiff in error and the defendant in error that in consideration of the plaintiff in error paying to the defendant in error the sum of §44, interest on the sum of $550 for one year from the maturity of this note, the defendant in error agreed to extend the payment of the $550 for one year, and until the 28th day of April, 1885. That on the 10th day of January, 1885, the defendant in error caused a judgment to be confessed and entered in vacation by the Clerk of the Circuit Court for Whiteside County, on said note, for the sum of $550 and $60 attorney’s fee. That at the next term of the Circuit Court after this judgment was so entered, the plaintiff in error filed his motion in the court, asking to have this judgment vacated. On the hearing of the motion the defendant in error entered a remitter of the unearned interest money, and the court overruled the motion and exceptions were taken, and the case is now brought to this court.</p>

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

Geoege W. Stipp, Judge, presiding. Statement by Lacey, J. This was a bill in equity by appellees against appellants and Henry C. Reed, seeking to foreclose a lien against fifty shares of the capital stock of the Dime Savings Bank, of $100 each, which lien was created byway of pledge by William K. Reed, appellant, to secure the notes of H. C. Reed to the amount of some $3,300, and was substituted in the hands of Levi Kelsey, the father of appellees, who bequeathed the notes…

T. M. Shaw, Judge, presiding. Statement by Welch, J. This was a bill filed by appellee against appellant for an account of partnership dealings. The bill alleges that on the 23d day of February, 1884, the appellee entered into a contract of partnership with the appellant for the term of one year, for the purpose of carrying on the business of selling drugs and other merchandise usually kept and sold by druggists in Wyoming.

<p>Former Adjudication — Restatement of Account — Administration—Mortgage — Subrogation—Interest—Insurance.</p> <p>Upon appeal from a decree based on a restatement of an account in a case remanded by the Supreme Court for that purpose, the principal parties being a divorced wife, to whom had been decreed the title of a tract of land fraudulently obtained from her by her former husband, and the widow of the latter, it is held: That the purchaser of an outstanding mortgage as trustee for the widow was not bound by the former proceedings; that the manner of estimating the rents, whether according to the reasonable value or actual receipts, was open for the court below to adopt any legal method; that it was proper to fix the rental value on the basis of actual receipts, which is all the executor and executrix, the widow, in possession under the mortgage, should be required to pay; that the divorced wife was properly charged with certain sums paid to her on account of alimony in the course of administration from the rents of said land, said payments having been made prior to the establishment of her title to the land and while the estate was believed to be solvent; that she should not be allowed a dividend of forty per cent, on the amount secured by said mortgage merely because such dividend has been paid through mistake on the other seventh-class claims against the estate; that the widow is entitled to be subrogated to all the rights of the original holders of the note and mortgage, she having purchased them with her own funds; that the divorced wife is not entitled to the benefit of the small discount allowed; and that she is chargeable with ten per cent, interest on the principal of said note until the date of settlement, and with the amount paid for insurance.</p>

<p>Appeal from the Circuit Court of Bureau County; the Hon. Dobrencb Dibell, Judge, presiding.</p> <p>Statement by Lacey, J." This was a petition to enforce a mechanic’s lien, commenced in the Circuit Court by appellants, against Sower Brothers, the appellees, to recover the sum of $1,600, balance for remodeling and changing the mill of Sower Brothers into a roller mill, situate on lot 29, in Stoner’s Addition to the Town of Princeton, Illinois, and to subject parts of lots 7 and 8, in subdivision of lot 13 of Stoner’s first addition to Princeton, which joined on the south the said lot 29 to payment of said sum.</p> <p>The petition was filed March 13, 1885, and it appears from the petition, answers and evidence that on the 30'th of June, 1883, the appellants and Sower Brothers gntered into a written contract by which the appellants were to remodel and change the latter’s mill into a roller mill, they furnishing the material and wright work and to complete the mill, and appellants were to have the right to use all the old shafting, gearing and pulleys, belts, buckets and lumber that might be found suitable to the work in the construction, of the roller mill. The mill was warranted to be first class, etc. The mill was to 'be completed and started in successful running order by the 15th September, 1883, consideration $6,600, $2,500 to be paid by Sower Brothers on July.10,1883, and $2,500 when the-mill was finished and started to successful and satisfactory results. For the balance, $1,600, the Sower Brothers agreed to give their notes, bearing seven per cent, interest, payable-in equal payments, payable in six, nine and twelve months from the date of starting the mill. Sower Brothers were to take out all the old machinery and put the building in proper shape to receive the new work, and send such old machinery as might be necessary to the shop of Stewart, Mills & Temple, to Dayton, O., to be refitted, and to pay all freight and deliver the machinery in the mill.</p> <p>Sower Brothers, at the time of making the contract, were the owners of said lot 29, on which was their mill, run for the purpose of manufacturing feed, and also the owners of parts of said lots 7 and 8, lying south of and contiguous to lot 29, on which the mill was situate, only separated by a street thirty feet wide, and purchased by Sower Brothers some years after the mill was built in order to have an open space south. These lots were used somewhat in connection with operating the mill for the purpose of having cribs on them to hold corn to be grbund in the mill for feed, and for the purpose of having a shed on it tu put delivery wagon, horses and buggies while working at the mill. These lots are claimed to be part of the mill property, and subject to the lien, but this is objected to by appellees.</p> <p>All of the material and labor which had been furnished by appellants was paid for by Sower Brothers before the filing of the petition, save the last §1,600. There was some delay on the part of appellants in completing the contract, and instead of finishing the work by September 15, 1883, it was not completed and finished till the 15th of October following. This delay is charged by appellants to be on account of the fault of Sower Brothers in not shipping the old material in time for appellants to refit it and return it in time to fill their contract; but this is denied by Sower Brothers, who claim that it was finished in time. It is hard to tell who is right, but probably it was somewhat the fault of each, and as we do not regard it as material we will not notice the question further.</p> <p>It is certain, however, that Sower Brothers did not attempt to take advantage of the delay, but accepted the mill and gave their notes, dated November 1, 1883 due in six, nine and twelve months from date, in the manner provided in the contract except as to date. It appears that the notes were not taken in satisfaction of the appellants’ claim, and are offered to be surrendered. In April, 1884, the mill was consumed by fire, and the said Sower Brothers becoming insolvent made a deed of assignment to one Eugene 0. Bates, as assignee, in due form of law under the Insolvent Debtor’s Act of 1877, of all their property and effects, for the benefit of their creditors; and said Bates accepted the trust and took possession of the assigned estate. This was all done prior to the filing of the petition. Bates sold a pair of scales which had been attached to lot 29 for §50, and some iron, remains of the mill and detached by the fire, realizing a total net amount of §265.75, all of which was done by consent of appellants, Mrs. Paddock and the assignee, and the money was to be paid out under the order of the court in this case. The notes above described, given to appellants after the assignment, were placed in the possession of the assignee for payment, and the appellants Bad received a dividend on them of §197.58. The opposing claim of Mrs. Anne G. Paddock, a non-resident, originated from the loan of money by her to Sower Brothers, for which the latter gave their notes to her and Eliza Skinner, dated July 2, 1883, and also a deed of trust given at the same time by Sower Brothers on said lot 29 and mill, machinery and fixtures to George S. Skinner, as trustee, to secure the same, and the same was duly recorded July 7, 1883. All these notes were paid except something over §1,000 due to Mrs. Paddock and §150 attorney fees in case of foreclosure, all of which it is insisted is a superior lien on said lot and mill fixtures to the claim of appellants for mechanics’ lien. The appellee, Mrs. Paddock, took this trust and without notice of the contract with appellants, and did not consent to any change in appellants’ contract with Sower Brothers.</p> <p>Lot 29 was not worth to exceed §500 with the engine and remains of the mill, and §300' is a fair valuation for lots 7 and 8.</p> <p>All of the appellees, including the assignee, Bates, objected to the jurisdiction of the Circuit Court on the grounds of the existence of the assignment and what had been done under it.</p> <p>The court, it appears, after taking default of Sower Bros., and duly considering the evidence and argument of counsel, dismissed the petition for want of jurisdiction of the Circuit Court, and from this decree this appeal is brought to this court.</p>

<p>Appeal from the Circuit Court of Peoria County; the Hon. T. ¡M¡. Shaw, J udge, presiding.</p> <p>Statement by Lacey, J. The appellee and one Cary E. ¡Robinson, on January 1,1883, entered into partnership, to be carried on in the city of Peoria, in general hardware and tin business, under the firm name of R. A. Culter & Company. On the 23d day of September, 1884, said Robinson also entered into partnership with appellants to carry on a hardware and tin business, in . which last mentioned firm the. said appellee had no interest. The last named firm was to continue five years, the appellants were to furnish a certain sum each, and said Robinson was to furnish $2,000 in cash and a credit of $3,000 in the first named firm of E. A. Culter & Company, which was to be paid out and used in the common trade.</p> <p>Appellants were to devote their entire time to the business. Eobinson was to receive one-fourth of the profits.</p> <p>In pursuance to the agreement, Eobinson asked his partner, the appellee, for his consent to the credit that he had agreed to furnish to the appellants’ firm out of the firm of E. A. Culter & Company, but did not inform him that it was to continue five years, and appellee did not know that fact till after the goods had been procured. The goods were procured of the firm of E. A. Culter & Company to the amount of $4,-079.12 above all credits, which the firm of Schnebly & Eowcliffe, of which Eobinson was a member, never denied, and in their testimony admit; but appellants insist $3,000 of the amount was not due for five years from the date of their partnership with Eobinson, by virtue of the terms of their partnership agreement.</p> <p>On July 8, 1885, the firm of E. A. Culter & Company was dissolved by mutual consent, and as appellee alleges in his bill he became the owner of all the assets by purchase by him from Eobinson, and Eobinson admits this in his answer. Appellee also testified that he was the owner at dissolution of the claim in question. The books of two firms were' compared by appellants and appellee about August 10,1885, and found to agree, and the balance due was $4,079.12. The appellee brought a bill in equity to collect this balance. Appellants’ answer sets up the partnership agreement with Eobinson, denies their liability with Eobinson to the firm of E. A. Culter & Company as to the $3,000, but admits it as to $1,079.12, and denies their liability to account. The Circuit Court upon the master’s report rendered a decree in favor of appellee against appellants for the sum of $4,225, the full amount of appellee’s claim, and six per cent, interest from about August 10, 1885, the time the books were compared, till the date of decree, March 20, 1886.</p>

<p>In ebeob to the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p> <p>Statement by Welch, J. The La Salle and Chicago Railroad Company was organized under an act entitled “An Act to incorporate the La Salle and Chicago Railroad Company,” approved February 28,1867, for the construction of a railroad from La Salle to Chicago. In 1872 the name of the corporation was by a vote of its stockholders changed to the Chicago and Great Westera. Railroad Company. On the first of March, 1873, the directors of the company by resolution authorized the issue of bonds to the aggregate amount of $8,000,000, the same to be used or sold, and the proceeds thereof to aid in the construction and equipment of the railroad of said company upon the route selected and to be selected therefor, and within the limits prescribed by its charter. One thousand of these bonds, amounting to $1,000,000, were issued, dated March 1, 1873,. and secured by a deed of trust of the same date, conveying to the Farmers’ Loan and Trust Company, of Hew York, all the property and franchises of the company.</p> <p>Prior to this time a corporation, known as the Riverside Improvement Company, organized under an act approved March 11,1869, for the purpose of purchasing, improving and selling suburban property in the vicinity of Chicago, had become largely indebted for the purchase and improvement of certain lands at Riverside, in Cook County. Another corporation known as the Riverside Water and Gas Company, incorporated April 6, 1889, for the purpose of supplying gas and water to the town of Riverside, had also become largely indebted and embarrassed in its enterprises at that place.</p> <p>Emery P. Childs, who was the president of the Riverside Improvement Company, and one of the largest stockholders and vice-president and general manager of the Riverside Water and Gas Company and one of its heaviest stockholders, acquired the control of another corporation known as the Mercantile Warehouse and Loan-Company, and caused its name to be changed to the Chicago and Great Western Railroad Land Company. He then caused the Riverside Improvement Company and the Riverside Water and Gas Company to convey their property to the land company, subject to a large amount of mortgage and other indebtedness. Childs then became the president and general manager of the land company. He also owned a majority of the capital stock of the Chicago and Great Western Railroad Company, and was its president and manager. Instead of using the bonds of the railroad company for the purpose of constructing its road, as required by the resolution of the board of directors, Childs without authority used seven hundred and fifty of its bonds in payment and satisfaction of the debts of the improvement company, of the water and gas company and of the land company.' All of the persons receiving the bonds knowing that the only consideration therefor was the indebtedness of the three companies last named, and that the bonds were wholly void as against the railroad company. Childs also delivered two hundred and fifty of the bonds to Joshua C. Sanders and other persons without any consideration accruing to the railroad company, of which l *the parties receiving them had full knowledge. On the first day of March, 1873, the land company executed its deed of trust conveying certain lands in Riverside, Cook county, to John J. Jewett, as trustee, to secure the railroad bonds above described. Default having been made in the payment of interest on the bonds, suit was brought in the Circuit Court of Cook County in 1875, by F. W. Peck and others, holders of the bonds, for the foreclosure of the Jewett trust deed. A decree of foreclosure was rendered which was modified by the Supreme Court. See Peck v. Chicago and Great Western Bail road Land Company, 112 Ill. 408.</p> <p>On the 14th of October, 1884, complainants became subscribers to the capital stock of the railroad company with a view of obtaining further subscriptions and of constructing the road. Learning that the bonds and trust deed were still outstanding, and an apparent cloud upon the title of the railroad company, they applied to the Farmers’ Loan and Trust Company to release the deed of trust. The company declined to execute a release without an order of court declaring the bonds void, and directing it to release the trust deed. The raih;oad company, Childs being still its president, refused upon the application of complainants to institute the necessary proceedings to obtain such a decree. Complainants thereupon filed this bill, ¡November 27, 1884, in the Circuit Cohrt of La Salle County, against the holders of the bonds, including the plaintiffs in error, the Farmers’ Loan and Trust Company and the railroad company. The bill alleged the facts as stated supra, and prayed that the bonds be declared ultra vires and void, and that the Farmers’ Loan and Trust Company be required to execute a release of the trust deed. Plaintiffs in error answered the bill upon the merits, and neither they nor any of the defendants to the bill raised any question, either by demurrer, plea or otherwise as to the capacity in which complainants brought suit as stockholders in the corporation. Upon final hearing upon the pleadings and proofs, the court found the facts as above recited and granted the relief as prayed for in the bill of complainants, from which decree this writ of error is prosecuted.</p>

John J. Glenn, Judge, presiding. Statement by Welch, J. This was a suit brought by appellee against the appellant before a Justice of the Peace in which the appellee recovered a judgment and the appellant appealed to thq Circuit Court. On the trial in the Circuit Court appellee recovered a judgment from which the appeal to this court is taken. Appellee held a policy of insurance issued by the appellant ■to him insuring certain of his stock.

<p>Appeal from the Circuit Col. fc of Knox County; the Hon.John J. Glenn, Judge, presiding.</p> <p>Statement by Lacey, J. This was a suit in trespass commenced by appellee December 31, 1885, in the Circuit Court, alleging that on the 2d day of July, 1885, the appellant had control of a public sidewalk on the east side of West Street, and wrongfully suffered the same to become dangerous, and that the appellee while using due care, tripped on a loose board, fell and became greatly injured and damaged in consequence in the sum of $5,000. There was the plea of the general issue filed on trial by the court and jury, February 12, 1886, the jury finding verdict for the appellee in the sum of $1,250, on which verdict the court rendered judgment from which the appellant takes this appeal.</p>

<p>Fire Insurance — Action on Policy — Fraud—Preponderance of Evidence, Sufficient to Establish — Instructions—Practice.</p> <p>1. In civil actions a preponderance of the evidence is all that is required to establish fraud.</p> <p>2. In an action on a policy of fire insurance, it is held: That the evidence strongly tends to establish fraud; that the instructions were too favorable to the plaintiff; that the court should have passed upon the question whether certain interrogatories were proper; and that certain statements made to the jury by plaintiff’s counsel were improper.</p>

<p>Appeal from the Circuit Court of Ogle County, the Hon. J. Y. Eustace, Judge, presiding.</p> <p>Statement by Lacey, J. This was a bill in equity, filed to October term, 1882, by the appellants against the appellees, seeking to enjoin the County Treasurer of Ogle County from paying over to the Auditor of Public Accounts so much of the tax as has been collected to pay certain town bonds of the Town of Mt. Morris, in said county, and also the County Collector from collecting the remainder of the tax under the law of 1869, to pay said bonds, there having been already collected and in the hands of the County Treasurer the sum of 84,301.37 of the tax levied for that purpose.</p> <p>The appellants are taxpayers of the said Town of Mount Morris, in Ogle County, residing therein, to the amount of about $200 each annually. It appears from the bill, answers and evidence in the case that the Town of Mount Morris was duly organized under township organization law; that John W. Hitt, Supervisor, and H. H. Clevidence, Town Clerk, issued certain bonds of the said town to the Chicago and Iowa Railroad Company, bearing date May 3, 1875, and due May 1, 1885, of two series; the first for $500 each, numbered from one to fifty, inclusive, and the second for $1,000 each, numbered from fifty-one to seventy-five, inclusive; making in all seventy-five bonds, aggregating the sum of $50,000, each with coupons attached drawing ten per cent, interest, the interest payable annually. The taxes were sought to be collected under the Act of April, 1869. The vote of the legally qualified electors of the town, under which the original authority is claimed to issue the bonds, was taken under Secs. 11,12 and 13 of the charter to incorporate the Chicago and Iowa Railroad Company, Private Laws 1869, Vol. 2, page 163, which is set out in full, on the 30th day of June, 1870, at a town meeting, under proper notice. The bonds were voted as a donation, and the sum of $75,000 was voted instead of $50,000, as was afterward issued. The election was held as a special town meeting, presided over by a moderator, and without the judges and clerks required at general elections. The bonds were duly registered in the Auditor’s office, at Springfield, and the taxes were duly levied as stated in the bill. It appears that after the vote to issue the $75,000 in hand to the company was taken, and after the railroad was very nearly completed and the bonds were about to be issued, according to the vote, to wit, on the 11th day of November, 1871, one Daniel J. Pinckney and five others, all residents and owners of real and personal property located in said town, and which property was liable in common with the other taxable property in the said town to taxation for State, county and township purposes, filed their bill in equity in the Circuit Court of Ogle County against the said Railroad Company, the Town of Mount Morris, Charles Newcomer, its Supervisor, and Henry H. Clevidence, its Cleric, praying that the issuing of the said bonds be perpetually enjoined, and that the assessment and collection of any taxes upon the taxable property in the said Town of Mount Morris to pay said bonds, or any part thereof, be perpetually restrained. The bill sets up in proper form and makes these points against the validity of the said proposed bonds: That the ballots cast were illegal and void, in that the voters voting had no power to determine whether the Town should make any donation, or to bind or obligate the Town to make any donation or to issue bonds; and that in truth and fact there were no legal and valid votes or ballots cast at said election.</p> <p>The bill purports to ask relief in favor of the complainants and all other tax-payers of the Town of Mount Morris.</p> <p>It sets up particularly the manner of posting the notice, the provisions of the sections of the charter under which the vote was purported to be taken, and particularly its requirement in regard to calling and holding an election. Among other requirements is this: “ And it [by the charter] was further expressly provided that such election should be held and conducted and returns thereof made as was provided by the township organization law in towns organized under said law.” It further showed that Frederick B. Brayton, the Town Clerk, received the necessary petition of the requisite number of taxpayers on June 9, 1870, and that the Town Clerk posted the notices in proper form, of an election to be holden on June 30, 1870, for donation for $75,000 to said railroad company. It further showed that the Town Clerk called the meeting to order on June 30, 1870, at the place and time mentioned in the notice, between 9 and 10 o’clock, a. m., where the voters had assembled, and that M. T. Holier was chosen moderator of the meeting, and during the continuance of the meeting acted as such and was sworn; that the polls were kept open till six o’clock in the evening, and upon canvass there was 57 majority for the donation. ■ It (the bill) objects that the notice posted for the election was void, because it failed to fully state the object of the election and the rate of interest the proposed bonds were to bear, etc. This was about the full scope of the Pinckney bill. To this bill the railroad company answered separately. The town and the Supervisor joined in an answer. Both answers admitted in affirmative terms the manner of holding the election, and the manner was proved on the hearing by a 'copy of the record. Upon a hearing the Circuit Court perpetually enjoined the town and its officers from issuing and the railroad and its agents from receiving the bonds in question. The defendants took the case by appeal to the Supreme Court, where, on a second hearing on the merits, the decree of the Circuit Court was reversed and the bill dismissed. The judge, in writing the opinion of the Supreme Court, states that the principal points relied on by the appellant to prevent the town from issuing bonds are: Fwst. The Constitution of 1870 prohibits a donation by a town to a railroad corporation. Second. The vote was void, because the notice of election and the petition were defective.</p> <p>The Supreme Court held both the points against the appellees in that case. In the meantime H. H. Clevidence, Super! visor, had been succeeded by John W. Hitt. Upon petition of tax-payers, after the decision in the Supreme Court against the town, he called a special town meeting and laid the proposition of the railroad company before them to take $50,000 instead of $75,000, which was a rebatement of all interest, and $25,000 of the principal sum voted, and the tax-payers voted unanimously to accept it. At the annual town meeting, occurring within eighteen months thereafter, on April 6, 1875, the action of the special town meeting was approved and ratified, with thanks to the Supervisor who brought about the settlement. Under these circumstances the bonds in question were issued and delivered to the railroad company. One of the defendants. The German Fire Insurance ConqDany, relying on the judicial sanction of the bonds and of the compromise, purchased of them to the amount of $26,500. Chester H. Williams, under the same circumstances, purchased two of the same bonds, and he is one of the defendants, and Benjamin F. Hedrick, another of the defendants, purchased two other of the bonds of $1,000 each.</p> <p>The taxable property as assessed by the Town Assessor was §1,147,640 for the year 1874, and as equalized by the Board of Supervisors of Ogle County it was §997,441, and by the State Board of Equalization §692,057, and for the year 1875 it was assessed by the Town Assessor §1,233,822, and by the County Board of Equalization §1,009,822, and by State Board of Equalization §691,884.</p> <p>The court below, upon the hearing, dismissed the bill, and from that decree this appeal is taken. The town continued to pay the annual interest on these bonds so issued till the commencement of this suit.</p>

<p>Garnishment — Service of Process — Effect on Lien Claimed by Sub-Contractor — Jurisdiction of Justice when Judgment Exceeds §200.</p> <p>1. The service of garnishee process works an appropriation of so much of the amount due the judgment debtor as equals the amount of the judgment with costs and interest.</p> <p>2. Such service defeats to that extent a lien claimed by a sub-contractor of which notice is not served upon the defendant until after the service of the garnishee process.</p> <p>3. A Justice of the Peace has jurisdiction in garnishee proceedings to render judgment for the full amount of the judgment with costs and interest, although it exceeds ¡$200.</p>

<p>Appeal from the Circuit Court of Grundy County; the lion. Dobbence Dibell, Judge, presiding.</p>

<p>Statute of Frauds — Contract to floio Water through Drain across Another’s Land — Action to Recover Consideration — Evidence.</p> <p>1. An action does not lie to recover the consideration of a contract which is invalid under-the Statute of Frauds. Such contract does not bind either party, and can neither be made a ground of action nor defense.</p> <p>2. A parol contract for a right to flow water through a drain across the lands of another is void, such right being an interest in lands within the Statute of Frauds.</p>

<p>Canal — -Sec. 16, Chap. 19, R. S- — Construction—Negligence—Act of Providence■ — Instructions.</p> <p>1. Sec. 16, Chap. 19, R. S., prohibiting acts by reason of which any substance may be washed into the canal, is highly penal in character and can not be extended by construction. It does not make it an offense to do that which without the statute is innocent and lawful, and which of itself could work no injury to any one. The acts prohibited by said section are only such as might be done on the property under the control of the commissioners. As to acts done on their own property by citizens their liability remains unchanged.</p> <p>2. In a proceeding to recover the penalty provided by said section, it is held: That the defendant in the use of its own property was not required to foresee and provide against unusual, extraordinary and unexpected floods; that a concurrence of negligence with the act of Providence was necessary to charge the defendant; that an act of Providence, within the meaning of the rule exempting the defendant from liability, was not necessarily an unprecedented flood or freshet; and that there was no error in giving and refusing instructions.</p>

<p>Statute of Frauds — Original Promise — Evidence—Question for Jury.</p> <p>1. Where the evidence is conflicting its credibility and weight are for the jury.</p> <p>2. An original undertaking, although for the benefit of another, is not within the Statute of Frauds.</p>

<p>Landlord and Tenant — Distress—Evidence—Admission—Compromi se— Instructions.</p> <p>In an action of distress for rent, it is held: That evidence concerning an alleged statement of accounts tending to show an admission of indebtedness by the defendant was properly admitted; that such admission was not made by way of compromise; that, if said evidence was erroneously admitted, it worked no injury; that an instruction having no basis in the evidence was properly refused; and that another instruction was properly modified by the court.</p>

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

<p>Agency — Commissions—Action to Recover — Affirmance upon Review of Evidence.</p> <p>In an action to recover commissions for selling a farm, this court, upon a review of the evidence, affirms the judgment of the court below for the plaintiff.</p>

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

<p>Administration — Sale of Real Estate by Administrator — Right of Purchaser to Rents Subsequently Accruing.</p> <p>1. In the sale of real estate under the statute, an administrator has no power to impose conditions. He can simply sell the rights of the heirs, no more and no less, a sale by him being equivalent to one by the heirs.</p> <p>2. In the case presented, it is held; That the original lease by the husband of an heir of the premises subsequently sold by the administrator, was in effect a lease by the heirs as tenants in common; (hat the sale on September 24th carried with it the right to the grain rent subsequently to-become due; and that the doctrine of emblements has no application.</p>

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

<p>Appeal from the Circuit Court of Henry County; the Hon. Author A. Smith, Judge, presiding.</p>

<p>In error to the Circuit Court of Whitesides County; the Hon. John V. Eustace, Judge, presiding.</p>

<p>Sales — Conditional Executory Contract — Fulfilment of Condition— Delivery — When Unnecessary — Remedies of Vendor — Costs.</p> <p>In an action to recover the contract price of a corn planter and check-rower, it is held: That the transaction between the parties concerning said implements was a conditional executory contract of sale; that upon the fulfilment of the condition the defendant ceased to hold possession as bailee, and thereafter held as vendee; that, as vendee he is liable for the full contract price; and that the general judgment for costs only affected costs not theretofore adjudicated.</p>

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

<p>Sales — Express Warranty of Quality, Exclusive — Action to Recover Balance Due on Contract Price of a Steam Boiler — Repairs—Instructions —Evidence—Scientific Books, Inadmissible.</p> <p>1. The expression of a warranty as to quality in a contract of sale excludes any implication of a further warranty as to quality.</p> <p>2. In an action to recover the balance of the contract price due on a steam boiler, it is held: That the warranty of quality was that the boiler should be as durable as any now in use; that the real issue which should have been submitted was whether the proposed manner of repairing would have made the boiler as durable as any now in use; that the instructions given did not impose upon the plaintiff as great a burden as the law and his contract required; that the instructions should have submitted the .question whether notice of the cracks in the boiler was given to the plaintiff within a reasonable time; that the reading of scientific books to certain witnesses on their cross-examinations was improperly permitted; and that the burden of proof to show a breach of the warranty was on the defendant.</p> <p>3. Scientific books are inadmissible as evidence in chief, or when offered to impair the evidence of expert witnesses.</p>

<p>Master and Servant — Action for Wages — Issue as to Term of Employment — Bate of Compensation — Evidence—Instructions—Practice—Examination of Witnesses — Discretion.</p> <p>1. Where the evidence is conflicting this court will not interfere with the verdict of the jury merely because a different result would have been as satisfactory.</p> <p>2. Where, in a contract for services, the minds of the parties meet as to the rate of compensation but not as to the term of service, or where the employment is at will for a stipulated rate of compensation, a recovery may be had in an action for wages at the agreed rate.</p> <p>3. In the case presented, it is held: That the plaintiff was entitled to quit work at any time, the jury having found that no fixed term was agreed upon; that the defendant was not entitled to damages for time lost by the plaintiff; that there was no substantial error in the admission of evidence; that certain errors in the rejection of evidence produced no injury; that the rulings of the court upon the instructions were substsntially correct, with the exception of one instruction calling special attention to a single fact or circumstance not of a decisive character; and that said error is not sufficient to justify a reversal.</p> <p>4. The manner of conducting the examination of witnesses must be left to a considerable degree to the sound discretion of the trial court.</p>

<p>Railroads — Action for Damages for hilling Colt— Bes Adjudícala— Evidence — Instructions—Contributory Negligence — Attorney Fees— Estoppel.</p> <p>1. A fact which illustrates by experiment the condition of the subject-matter of the issue involved is admissible as direct evidence bearing upon said issue.</p> <p>2. In an action against a railroad company to recover damages for a colt killed by one of defendant’s trains, it is held: That certain evidence of the previous conduct of domestic animals in regard'to a certain cattle guard, which tended to prove a defective construction of the wing fence on one side thereof, was properly admitted; that the matter of said fence was not involved in the former appeal to this court; that the verdict of the jury is sustained by the evidence; that the plaintiff does not appear to have been guilty of contributory negligence; that there was no error in the rulings of the court below upon instructions; and that the plaintiff was entitled to claim attorney fees although he introduced no evidence on that point at the former trials.</p>

<p>Appeal from the Circuit Court of Bureau County; the Hon. George W. -Stipp, Judge, presiding.</p>

<p>Municipal Corporations — Defective Sidetoalk — Action for Damages for Death of Child of Tender Tears — Gross Negligence — Damages—Verdict for §1,000, not Excessive — Instructions—Evidence.</p> <p>In an action by an administrator to recover damages from a municipal corporation, resulting from the death o£ his intestate, the infant son of the administrator, alleged to have been caused by a defective sidewalk, it is held: That the evidence clearly shows that the sidewalk was in a dangerous condition and that the city authorities were guilty of gross negligence with reference thereto; that there is nothing to show contributory negligence on the part of the father; that the verdict for the plaintiff for $1,000 was not excessive; that the law implies a pecuniary loss, the child being a minor but four months old; that a certain instruction was properly refused, its substance being contained in two others given; and that the letters of administration issued to appellee were conclusive of his right to prosecute the suit.</p>

<p>Homestead — Waiver in Mortgage — Foreclosure—Distribution of Surplus — Marshalling Assets.</p> <p>1. Upon a sale of land under a mortgage containing a waiver of homestead exemption the mortgagor is entitled to the exemption out of the surplus as against subsequent judgment creditors.</p> <p>2. It. seems that where a mortgage waiving homestead covers both homestead and other lands, a court of chancery will neither marshal assets at the instance of judgment creditors, nor at the instance of the mortgagor compel the mortgagee first to sell the lands in which there is no homestead right.</p>

<p>Garnishment — Appeals from County Court to this Court — Jurisdiction of County Judges — Statutes—Limitations—Justice's Judgments.</p> <p>1. County Judges do not have, and did not in 1877 have, any jurisdiction to act as Justices of the Peace; the proviso contained in Sec. 7 of the County Court Act of 1874 as amended May 21, 1877, being inoperative and void in the absence of any provision of law conferring such jurisdiction.</p> <p>2. An appeal lies from the County Court directly to this court from a judgment in a garnishment proceeding, such proceeding being a common law case within the meaning of the statute.</p> <p>3. A Justice's judgment is “ an evidence of the indebtedness in writing” within the meaning of Sec. 16 of the Statute of Limitations, and the time within which an action may he brought thereon is ten years.</p>

John J. Glenn, Judge, presiding. Statement by Lacey, J. This was an action in assumpsit, by defendant in error against plaintiff in error, based on the fo1lowing certificate of deposit, viz: “Deposited with First National Bank, by William H, Brooks.” “ Monmouth, III., June 2,1883. “Dolls.

<p>Municipal Corporations — Defective Sidewallc- — Action for Personal Injury — Liability of Defendant, Denied.</p> <p>1. A municipal corporation is not an insurer against accidents to individuals upon its sidewalks, but is only bound to exercise reasonable diligence in keeping them in a reasonably safe condition.</p> <p>2. In an action against a municipal corporation to recover damages for an injury resulting from a defective sidewalk, this court reverses a judgment for the plaintiff on the ground that the verdict is contrary to the law and evidence.</p>

<p>Forcible Entry and Detainer — Possession—Evidence—Instructions.</p> <p>1. In an action of forcible entry and detainer, upon a review of the evidence, it is held: That the defendant was never out of possession; that the plaintiff never had such actual and peaceable possession as would give him a right of action under the statute; and that there was no material error in giving and refusing instructions.</p> <p>2. It is proper to refuse an instruction which is in substance and form substantially identical with instructions given.</p>

<p>Beal Property — Conveyance Procured by Fraud — Possession of Grantor as Notice — Presumption—Evidence.</p> <p>1. The actual occupancy of premises is notice of whatever right, title, interest or equity the occupant may have therein.</p> <p>2. Where the grantor of real estate remains in possession, all persons bolding under the grantee are chargeable with notice of all claims of the grantor, both legal and equitable, and if the original conveyance was procured by fraud, such persons can not be protected as innocent purchasers.</p> <p>3. In the case presented, it is held: That no presumption can be entertained that the purchaser of a note secured by trust deed would not have ascertained by inquiry that the original conveyance was fraudulent.</p>

<p>Action to Recover for Domestic Services Performed for an Uncle — Presumption — Statute of Limitations — Instructions—Practice—Interest.</p> <p>1. The presumption that services performed by one while residing with a near relative were intended to be gratuitous, is weaker where the relationship is distant than if near, especially if the parties had not previously been domiciled together.</p> <p>2. In the case presented, it is held,: That the evidence sustains a verdict for the plaintiff; that the claim is not barred by the Statute of Limitations;/ and that certain modifications in the instructions asked were proper.</p> <p>3. An objection not based upon an assignment of error can not be considered by this court.</p> <p>4. Under Sec. 3, Chap. 74, R. S., where the entry of the judgment is delayed, interest on the verdict may be made a part thereof.</p>

<p>Appeal from the Circuit Court of Bureau County; the Hon. George W. Stiff, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Knox Coun'y; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DeKalb County; the Hon. O. W. Upton, Judge, presiding.</p>

John J. Glenn, Judge, presiding. Statement by Welch, J. On the 19th day of June, 1882, Alfred E. Mead, one of the appellants, negotiated a loan through L. I). Holmes, from the appellee, for the sum of ¿2,500, and executed to appellee his promissory note therefor, payable two years after the date thereof with interest thereon at the rate of 8 per cent, per annum.

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

Johr J. Glerr, Judge, presiding. Statement by Baker,' P. J. William Hester died testate on the 23d of December, 1877. Letters testamentary were issued January 9, 1878, to appellant, George L. Clifford, the executor appointed in the will. The third clause of the will was as follows : “ 3.

Isaac Gr. Wilson, Judge, presiding. Statement by Lacey, J. This was a suit commenced on the 21st day of April, 1884, in the Circuit Court by the appellee against the appellant based on an insurance policy against loss by fire, issued by the latter to the former in the sum of $1,000 for one year on vehicles manufactured and in process of manufacture and all material and stock for the manufacture and finish of the-same, contained in the four story building of and belonging to…

G-eoeoe W. Stipp, Judge, presiding. • Statement by Lacey, J. Henry B. Chapman died testate June 6, 1881, and bequeathed by his will, among other things, §1,000 to the appellee, who was his brother, to be paid to him at the testator’s decease, and further made this provision: “And having and reposing implicit confidence in the goodness and kindness of my dear wife I rely upon her to make- and all needful provision for the future wants of my brother Sylvester.” His wife,…

<p>In error to the Circuit Court of Henry County; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Foreclosures by Executors of Vendor's Lien — Bight of Action Survives • — Quit Claim Deed — Executory Contract — Possession of Purchaser — After-acquired Title — Estopqiel—Statute of Limitations.</p> <p>1. A quit-claim deed conveys in fee whatever estate the grantor has, and it implies that he has an estate to convey.</p> <p>2. The lien of a vendor does not expire with his death, and it may be foreclosed as a mortgage by his executors.</p> <p>3. The purchaser of land in possession under an executory contract of purchase holds under the title of the vendor, and in all proceedings for the recovery of possession by the endor, he is estopped from disputing his title.</p> <p>4. Upon a bill filed by the executors of the vendor to foreclose as a mortgage the vendor’s lien on certain premises, which is witnessed by a bond for the conveyance thereof and certain notes for the purchase money therefor, it is held: That the cause of action survived; that the right to maintain it was not lost by lapse of time, the debt not having been barred by the Statute of Limitations; that the purchaser, and those holding under him, can not set up an after-acquired title against the vendor’s lien; that before setting up such title they must surrender possession, especially as the strength of the vendor’s title rested on the Statute of Limitations; and that the decree of the court below is not to be understood as foreclosing any rights which the defendants have under said after-acquired title.</p>

<p>On petition for mandamus.</p>

<p>Landlord and Tenant — Forcible Entry wnd Detainer — Confession of Judgment — Motion to Vacate — Execution of Lease — Agreement for Extension — Evidence.</p> <p>1. A lease, containing a warrant of attorney to confess judgment in forcible detainer, is sufficient to authorize such confession, if duly executed by the lessee, although executed in the name of the lessor by his agent without proper authority.</p> <p>2. In the case presented, it is held: That, as the bill of exceptions does not preserve all of the evidence, it will be presumed that sufficient evidence was heard to warrant the court below in refusing to vacate the judgment entered by confession on the lease; and that the affidavits preserved in the record do not sustain the lessee’s claim of a binding contract for an extension of the tenancy.</p>

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

<p>Jurisdiction — Cases Relating to the Revenue — Sec. 88, Practice Act— Bill for Injunction.</p> <p>1. This court has no jurisdiction of an appeal from a decree upon a bill to restrain the collection of taxes.</p> <p>2. A proceeding to restrain the collection of taxes is within Sec. 88, Practice Act, as amended June 3, 1879.</p>

<p>Practice — Verdict Based on Conflicting Evidence, Sustained — Set-off— Running Account.</p> <p>Where the evidence is conflicting, and it does not appear that the jury were misled or actuated by passion or prejudice, this court will not interfere with the verdict.</p>

Murray F. Tuley, Judge, presiding. Statement Per Curiam. By stipulation of the parties the above entitled cases were heard and decided together and the record made in the first entitled case is to be regarded as the record in all, as they relate to the same subject-matter.

Lobin C. Collins, Judge, presiding. Statement by Moban, J. This was an action by appellant to recover against appellee upon a note made by appellee to the order of Graff, Abrahamson & Co. The n -te was indorsed by Graff, Abrahamson & Co. and by Kiaus & Mayer.

<p>Garnishment — Assignment of Indebtedness — Rights of Assignee, Protected — Evidence—Date of Instrument as Prima Facie Evidence.</p> <p>1. In garnishee proceedings courts of law will notice and protect the interests of equitable owners of choses in action.</p> <p>2. Where the indebtedness sought to be reached by garnishee process has been as-igned in good faith for a valuable consideration prior to the service thereof, the rights of the assignee will be protected.</p> <p>3. In the case presented in the absence of evidence to impeach the consideration of good faith of the transaction, the assignment is held to be a valid transfer of the indebtedness sufficient to vest an equitable title thereto in the assignees. It is also held: That the evidence shows the assignment to have been prior in time to the service of the attachment writs; that the declarations of the assignors concerning the assignment are competent evidence against the attaching creditors; and that the burden of showing that the assignment was subsequent to the service of the attachment writs, was on the attachment creditors.</p> <p>4. The date of an instrument is only prima facie evidence of the time of its execution.</p>

<p>Bill to Hove Notes and Trust Deed Canceled as Forgeries — Decree Affirmed — Estoppel.</p> <p>1. This court, upon a review of the evidence, which was conflicting, affirms a decree of the court below ordering certain promissory notes and a certain deed of trust to be brought into court and canceled as forgeries.</p> <p>2. Even if the complainant recognized or admitted the genuineness of the notes in question, such admission can not be given the force of an estoppel in the absence of evidence that the defendant was injured thereby.</p>

Elliott Anthony, Judge, presiding. Statement Per Quriam. This was an action in assumpsit brought by appellee to recover damages for a failure by appellant to deliver coal ordered under a contract. The evidence showed that appellee wrote to appellant the following letter: “ Geneva, May 14, ’79. “ Mb.

<p>Slander — Words Actionable per se — Charge of Theft — Practice—Admission of Evidence — Bemittitur. ,</p> <p>1. In an action to recover damages for slander, it is held: That the words, 11 she is a thief,” “she stole 5530,” and other words to the same effect, are actionable pe.r se; that the evidence sustains the finding of the jury; that the defendant is guilty of uttering and publishing said words; that the instruction given for plaintiff was proper; and that the damages are not excessive.</p> <p>2. The admission of evidence can not be assigned for error where proper objections were not interposed at the trial.</p> <p>3. The practice of entering a remittitur of a portion of the damages in cases sounding in damages, to avoid a new trial, is well settled in this State, and such remittitur is not to be taken as a confession that the jury were actuated by passion and prejudice.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. O. A. Harker, Judge, presiding.</p>

<p>This court affirms the judgment of the court below without entering upon an analysis of the evidence or a discussion of the principles of law applicable thereto.</p>

<p>Injunctions — Dissolution—Jurisdiction—Damages.</p> <p>Upon the dissolution of an injunction at the direction of the Supreme Court, the Circuit Court may assess the damages to which the defendant is entitled, before the dismissal of the bill ’</p>

<p>Sale by Corporation of Stock Pledged to Secure Stock Note — Bill to Set Aside — Want of Diligence — Acquiescence—Fraud.</p> <p>1. Upon an amended bill to set aside a sale by a corporation of certain stock p'edged to secure the payment of a stock note made by the complainant and containing an assignment of the stock with power of sale, it is held: That the complainant was not sufficiently diligent in attacking said sale as fraudulent; that his acceptance o£ a check for the amount claimed by the defendant to be the balance due him and his delay in moving to set aside said sale, sustain the inference of acquiescence; and that the evidence fails to show that said sale was in fact fraudulent.</p> <p>2. Where a power to sell property pledged, either at public or private sale, contains no provision for notice to the pledgor of the time and place of sale, such notice is waived.</p>

<p>Sales — Guaranty—Notice of Acceptance — What Sufficient.</p> <p>The notice of the acceptance of a guaranty need not he formal nor express. It is sufficient if it comes to the guarantor from the person for whom he is bound.</p> <p>The case of Newman v. Streator Coal Co., 19 Ill. App. 594, distingu'shed.</p>

<p>Practice — Judgment by Default — When Set Aside at the Same Term— Set-Off and Recoupment.</p> <p>1. A judgment by default will not be set aside in order that the defendant may maintain a mere cross-action; but where the defense includes matter of recoupment the judgment may be set aside for sufficient cause.</p> <p>2. Where it appears by affidavit that the defendant has a meritorious defense to the merits, it is usual, under the practice in this State, to set aside a default at the term at which it is entered, if a reasonable excuse is shown for not having made the defense; and in such case the point of having a meritorious defense is altogether the more important of the two required.</p> <p>3. In the case presented, it is held: That the defendant should not be debarred from making his defense merely by reason of the fact that his attorney miscalculated the progress of the court’s business to the extent of twenty minutes, especially as the case was taken up out of its order.</p>

Elliott Anthony, Judge, presiding. Statement by Horan, J. This was an action of trover against appellant brought by appellee to recover the value of 180 cases and 100 bales of cotton bats. The bats were shipped by appellee to Fbwler & Co. for sale on commission in regular course of trade. Fowler & Co. advanced to appellee on the goods $1,200 and paid for freight on them $79.20. The bats were stored in appellant’s warehouse.

<p>Instructions — Slight Inaccuracy — Comparative Negligence— Errors— Assignment of — Damages for Personal Injury — Whether Excessive.</p> <p>1. Where the law is correctly stated in the instructions given, a slight departure from strict verbal accuracy in one instruction will not justify a reversal, unless the circumstances of the entire case compel the conclusion that the inaccuracy in fact misled the jury.</p> <p>2. In an instruction on comparative negligence it is best, though not necessary, to state the hypoth sis of ordinary care, and to nse the word “ slight” instead of “ some” in describing the negligence of the plaintiff.</p> <p>3. An instruction for the appellee stated in the same terms as one given for the appellant can not be assigned by him as error, he having induced' the court to treat it as correct.</p> <p>4. The appellant can not assign as error a modification of an instruction asked, which could not have injured him.</p> <p>5. In an action by an employe against his employer for damages for a personal injury, a verdict for $2,030 is held not to be so excessive as to show an unreasonable exercise of the discretion of the jury.</p>

<p>Trespass — Distress—Eviction—Punitive Damages — Whether Excessive —Question for Jury.</p> <p>1. In an action of trespass, if the circumstances warrant the allowance of punitive damages, the question of damages, within reasonable limits, is for the jury.</p> <p>2. In the case presented it is held, that a verdict for $6,500 is not so excessive as to show passion or prejudice on the part of the jury.</p>

Ejrk Hawes, Judge, presiding. Statement by Moran, J. This action was brought by appellee to recover damages for a failure on the part of appellant to perform the following contract: ■ “W. McHenry, HI, Nov. 15, 1883. Bought this day of R. W. Stafford, 1,500 bids, medium (1200) Pickles @ $4.50 1,000 “ sniall _ (2400) “ @ 5.25 500 “ gherkins (3500) “ @ 5.50 Less 2-)- per cent., terms cash on delivery, goods to be taken between this date and January 1,1885.

Rollin S. Williamson, Judge, presiding. Statement by Moran, J. Action was brought by appellant, in the court below to recover damages from appellee for refusing and neglecting… Held: as appellant claims, until the loan papers were completed and the loan closed. On June 2d, appellee executed a trust deed to secure the loan, and the same was placed on record, but the loan was not closed, as there had been some delay in furnishing abstracts, and paying off taxes and so forth.

Elliott Anthony, Judge, presiding. Statement by Moran, J. This was an action of replevin to recover possession of certain household furniture which had been taken by the Sheriff on a writ of attachment against one Isaac A. Rice, the husband of appellee, and which appellee claimed was her separate property purchased with her own money.

Elliott Anthony, Judge, presiding. Statement by Hoe an, J. Appellees brought an action of covenant against appellants to recover rent which accrued under the terms of a lease between the parties, the term of which commenced February, 1884, and extended till April 30, 1886, unless the term should be before then determined. The premises rented were “ the third floor of the building known as Hos. 83 and 85 Wabash Avenue, also 15x65 feet in the basement of said building.

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

<p>Deceit — What Necessary to Prove — Knowledge of Plaintiff — Inference of Improper Motive.</p> <p>1. To recover in an action for deceit it is only necessary for the plaintiff to prove that the representation was false; that the party making it knew it to be false; and that the plaintiff relied upon it as true, was induced to act upon it, and was injured.</p> <p>2. The motive of the defendant'in making the false statement is wholly immaterial. The law infers an improper motive, if what the defendant says is false within his own knowledge, and is the occasion of damage to the plaintiff.</p>

<p>Carriers — Delay -in Transportation — -Action for Damages — Ecidence— Question for Jury — Remittitur.</p> <p>1. The showing of a bill of lading to a witness in rebuttal to refresh bis memory as to the dates of shipment does not make it admissible for other purposes on cross-examination.</p> <p>2. Where the testimony is conflicting the verdict will be sustained though its correctness may be doubtful.</p> <p>3. An error by the jury in assessing actual damages, where the damages are computed on the value o£ goods damaged or destroyed, is not evidence of passion or prejudice.</p>

<p>Corporations — Sale of Capital Stock — Fraud.</p> <p>In an action against a corporation to recover damages for fraud, in the sale of certain shares of its capital stock, this court., upon a review of the record, affirms the judgment of the court below for plaintiS.</p>

<p>Master and Servant — -Action' for Personal Injury — Comparative Negligence — Instructions—-Sufficiency of — -Duty of Master as to Machinery Furnished.</p> <p>-1. The jury should not be left to apply the doctrine of comparative negligence without being told that in no event can the plaintiff recover if he has failed to exercise ordinary care.</p> <p>2. Where the instructions, considered as a series, do not present contradictory propositions between which the jury may choose, and where, when so considered, they fully and fairly state the law, an omission of one of them is not a ground of objection.</p> <p>8. In the case presented, it is held: That the jury were sufficiently instructed; that there was no substantial error in the modification and refusal of instructions asked; that a certain modification as to the master's duty, touching the kind of machinery furnished, could not have prejudiced the defendant; alud that the allowance of $6,500 as damages is not so excessive as to warrant the interference of this court.</p>

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

Elliott Anthony, Judge, presiding. Statement by Bailey, J. This was a suit brought by Sarah A. Heno, Charles A. Beño and Eugenia M. Little against the Pittsburg, Fort Wayne & Chicago Bailway Company, to recover damages for a breach by the defendant of the covenants contained in the last paragraph of the following contract: “ Articles of agreement,, made this twenty-eighth day of July, A.D. 1880, between Sarah A. Beño and Charles A. Beno, her husband, and Eugenia M. Little…

<p>Confession of Judgment-on Warrant in Lease — Unfilled Blanks — Ambiguity — -Presumption as to Evidence — Practice.</p> <p>Upon appeal from an order denying a motion by the defendant to vacate a judgment by confession entered under and by virtue of a warrant of attorney contained in a lease, it is held: That certain unfilled blanks in the warrant of attorney create no such material ambiguity as to affect the validity of the instrument; that, as the judgment appears to have been entered in open court and as there is no bill of exceptions showing the contrary, it will be presumed that all necessary evidence was heard to warrant its entry; and that the defendant can not complain of an order of the court below, denying amotion by which he has not been prejudiced.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Gwyee Gabeett, Judge, presiding.</p>

<p>Appeal from the Probate Court of Cook County; the Hon. ‘ J. C. Knickerbocker, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. Statement by McAllister, P. J. This is an appeal by the O., B. & Q. E,. P. Co. from a judgment recovered against it by appellee Flint in the sum of §10,000 damages, besides costs, for a personal injury to the latter occasioned March 18,1885,'and, as it was alleged, through the negligence of the former, resulting in the loss of appellee’s arm.

C. B. Smith, Judge, presiding. Statement by McAllister, P. J. This was an action of trover, brought May 16, 1884, in the court below by appellees, Hardy & Metzger, against appellants, Martin S.-& J. H. Robison,, to recover for the wrongful conversion by the defendants of 40,000 bushels of flaxseed. Plea, the general issue, trial by jury and verdict and judgment against the defendants for $6,121.05 damages, and they appeal to this court.

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

Joseph E. Gary, Judge, presiding. Statement by Moran, J. The judgment from which this appeal is prosecuted was rendered in the court below upon a stipulation of facts as follows: “ On the 30th day of December, 1885, the plaintiff's sold to the defendant four car loadslrof broom corn, then stored in the Continental Warehouse on Kinzie Street, in the City of Chicago, at the rate of éj- cents per pound.

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

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

<p>Divorce — Solicitor's Fees and Alimony — Order Pendente Lite.</p> <p>1. This court will not interfere with an order in divorce proceedings allowing solicitor’s fees and alimony pendente lite, unless it is very clearly shown that there has been an abuse of discretion.</p> <p>2. While in making such orders the court will always be governed by the condition in life of the parties, the property of the husband, the necessities of the wife and children and their condition of health, it is not necessary that it shall be shown that the husband has property or money when the order is made, to justify it.</p>

<p>• Practice — Action of Debt on Appeal Bond — Proper Assignment in Plaintiff's Declaration — Form of J udgment — How Error may be Cured— Reversal — Amendment of Declaration.</p> <p>1. In an’action of debt on appeal bond the judgment order should be for the debt, the penalty to be discharged by the payment of the damages assessed.</p> <p>2. Where the judgment order is for both the debt and damages assessed, the error may be cured in the trial court on motion even after the term, the error being merely a clerical inadvertence.</p> <p>3. In the case presented, it is Jield: That while the error might be corrected by the entry of the judgment in proper form in this court, the cause must be remanded because there is no proper assignment in the plaintiff’s declaration of breaches of the condition in the bond.</p>

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

<p>Appeal from the Circuit Court of Cook County; the Hon. Loren 0. Collins, Judge, presiding.</p>

Mubjbay F. Tuley, Judge, presiding. Mr. Geobge W. Staotobd and D. W. Munn, for appellant. The court, should have, by the decree, preferred the actual advances made by appellant on account of the patents.

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

<p>Practice — Appeal from Justice — Time of Filing Transcript — Continuance— Waiver.</p> <p>1. Upon appeal from a Justice of the Peace, where the transcript of the judgment is not filed ten days before a term of court, the cause does not stand for trial at that term, and, except with the consent of both parties, can not be tried.'</p> <p>2. Where the court has improperly refused a continuance, the defendant does not waive the error by taking part in the trial and contesting the plaintiff’s claim upon the merits.</p>

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

<p>Agency — Action to Recover Commissions on Sale of Real Property— Instructions.</p> <p>1. An agent employed to purchase property can not become the agent of the vendor.</p> <p>2. A person who attempts to act as the agent of both parties to a transaction, without disclosing such fact to his principals, is precluded from recovering compensation for his services.</p> <p>3. In an action against the vendor of certain real property to recover commissions upon the sale thereof, in which the evidence tended to show that the plaintiff, when he undertook to act for the defendant in making the sale, was in fact the agent of the vendee, and that the fact of such agency was not disclosed, it is held: That the court improperly refused an instruction submitting the question raised by such evidence to the jury; and that an instruction given, which ignored said question, was erroneous.</p>

<p>Limitations — Sec. 11, Chap. 83, S. S. — Whether Applicable to Prior Trust Leed — Practice—Affirmarice.</p> <p>Upon a bill filed to enjoin the foreclosure of a trust deed, charging that, under Sec. 11, Chap. 83, R. S., the right to foreclose has been lost and is perpetually barred, and that said trust deed is no longer a lien upon the lands therein described and is a cloud on complainants’ title thereto, it is held: That, as the rights of the parties depend upon whether said section applies to a trust deed executed prior to its enactment, as its construction by the Supreme Court seems desirable, and as this court has been unable to sustain the position of the complainants, it is best simply to affirm the decree and allow the case to go directly to the Supreme Court.</p>

<p>Húsband and Wife — Personal Liability of Wife for Family Expenses.</p> <p>Sec. 15 of the act in relation to husband and wife, imposes upon the wife a personal liability for indebtedness incurred for the expenses of the family, and not merely a charge upon her property to be enforced by proceedings in rem.</p>

<p>Commencement of Suit — Demand Must be Due — Plea of Non Assumpsit — Sales—Instructions.</p> <p>1. A suit can not be maintained to recover a demand which is not due at the date of its commencement.</p> <p>2. The objection that the suit is prematurely brought is available under the plea of non assumpsit.</p> <p>3. In the case presented, it is held: That the burden of proving the maturity of the debt was upon the plaintiffs; and that there was error in giving and refusing instructions.</p>

<p>Practice — Appeals from County to Circuit Courts — Secs. 95 and 213, Ch. 37, R. S. — Constitution of 1870.</p> <p>1. In a common law case no appeal lies to the Circuit Court from a judgment rendered by the County Court.</p> <p>2. It seems that the Constitution of 1870 deprived County Judges of their powers as Justices of the Peace.</p>

<p>In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.</p>

<p>Appeal from the County Court of Cook County; the Hon. Hichaud Peendeegast, Judge, presiding.</p>

<p>Trespass — False Imprisonment — Ageney—-Respondeat Superior — Execution — Levy—Duty of Constable — Evidence—Instructions.</p> <p>1. The doctrine of respondeat superior applies only to acts performed by an agent within the scope of his employment.</p> <p>2. In an action of trespass for false imprisonment, it is held: That the superintendent of the mills of defendant corporation was not authorized to institute or prosecute suits in its behalf; that the court properly instructed the jury to find the company not guilty, there being no evidence to charge it with any responsibility for the trespasses complained of; that the evidence of the complicity of another defendant, though conflicting, is clearly sufficient to sustain the verdict for the plaintiff; that the Constable’s duty first to levy the execution on the property of the defendant therein, did not depend upon the permission of said defendant; and that this court will not review the instructions in detail where the objection thereto is merely general.</p>

<p>Municipal Corporations — Public Picnic — Whether a, Nuisance — Second Appeal — -Res Ad judicata.</p> <p>1. Upon a second appeal this court will treat all rules of law established by its former decision as res adjudicata.</p> <p>2. In the case presented, this court declines to reconsider its former decision that a part of a village ordinance, declaring all public picnics to be nuisances regardless of their character, is invalid.</p>

Elliott Anthony, Judge, presiding. Statement by Bailey, J. This was a prosecution for a violation of an ordinance of the village of Desplaines, brought by said village against Benjamin Poyer before a police magistrate, and afterward taken by appeal to the Criminal Court. The cause being tried in that court, by agreement of parties, without a jury, the defendant was found guilty and adjudged to paya fine of $15 and costs, and from that judgment he has appealed to this court.

<p>Appeal from the Superior Court of Cook County; the Hon. Gwtnn Garnett, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. Statement by Bailey, J. This was a prosecution by the Village of Desplaines against Benjamin Poyer for a breach of the following ordinance of said village: ‘•Section 1.

<p>Sales — Fraudulent Representations — Negotiable Paper — Failure of Consideration — Note—What Establishes Negotiable Character of — Fraud In Obtaining — Practice—Ref au It.</p> <p>1. To render representations fraudulent the person making them must know or have reason to-believe them to be false.</p> <p>2. A person selling property in good faith, and without any knowledge that it is defective, and who makes no warranty as to its quality, is guilty oí no wrong, and the fact that it is not what the purchaser supposed it was, dues not constitute a failure of consideration.</p> <p>3. The character of a promissory note as negotiable paper is established when it is acquired by a bona fide holder before maturity, and notice of original defects does not aifect subsequent holders either before or after maturity.</p> <p>4. It seems that in this State the fraud in obtaining a note, which, when proved, throws upon the holder the burden of proving that he obtained it for a valuable consideration, is fraud in obtaining the making and execution thereof, and not fraud in the consideration.</p>

<p>Ik error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.</p>

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

Thomas A. Moran, Judge, presiding. ■ ■ Statement by Bailey, J. This was a bill in chancery brohght by Henry S. Monroe, trustee, against Celia W. Wallace and Cythera M. Bappleye, to determine the respective equitable rights and interests of the defendants in and to a certain tract of land described in the bill.

<p>In error to the Circuit Court of Cook County; the Hon. Thomas A. Moran, Judge, presiding.</p>

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

<p>Action to Recover for Goods Sold — Presumption—Question for Jury— Instructions.</p> <p>1. Where an inference of fact is to be drawn from facts in evidence, such inference is for the jury and not for the court.</p> <p>2. Mere silence on the part of a debtor, when a bill is presented, can not be treated as a conclusive presumption that the amount of the bill is correct.</p> <p>3. When the jury have been fairly instructed on the issue submitted, and the verdict is not manifestly against the evidence, this court will not interfere.</p>

<p>In error to the Superior Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.</p>

<p>In error to the Criminal Court of Cook County; the Hon. Hurray F. Tuley, Judge, presiding.</p>

Hemet M. Shepabd, Judge, presiding; Statement by Moran, J. Appellant and one John Ragor, being the owners of certain real estate situate in the Lafraniboise Reserve, on December 27, 1873, conveyed the same by trust deed to Elias Greenbaum to secure appellant’s note for 811,000, payable to his own order three years from date, indorsed by him in blank and delivered to said Greenbaum.

<p>Practice — Confession of Judgment — Time and, Place of Indorsement of Order by Judge — Entry of Judgment — Issue of Execution.</p> <p>1. Upon a writ of error to review the action of the court below in refusing to grant a motion to change the record of a judgment by confession, to show that the Judge’s indorsement to enter judgment was made outside the court room and before the opening of the court, and upon certain other motions, it is held: Thit in the absence of evidence to show where it .was made it must be presumed that the order was made at the place where, by law, the court was authorized to be held; that there was no error in the refusal of the court to alter or amend the record in the manner suggested; that motions to vacate the judgment and to quash the execution, on the ground that-at the time it was issued there was no record entry of the judgment, were properly overruled; and that the refusal of the court to expunge from the cognovit an unauthorized agreement, providing that no appeal or writ of error should be prosecuted nor bill in equity filed, is not such error as to justify a reversal.</p> <p>2. A term of court, though running through several weeks or months, is to be regarded as one day, the court being open until the expiration of the term or adjournment sine die.</p> <p>3. The words “ enter judgment,” written by the Judge upon the papers in a confession proceeding that have been submitted to the court for . inspection and judgment, indicate that the court has considered the matter and intends by those words to render a judgment for the amount confessed • in the cognovit, and that such minute or memorandum fully authorizes the spreading on the record by the clerk of the full and formal judgment order.</p> <p>4. A reviewing court may not interpret the court’s minutes or memorandum or expand them into formal and complete orders, but when the ' court itself does so during the term, and the record shows them duly entered, the recital thereof is conclusive.</p>

John C. Bagby, Judge, presiding. Statement by Moran, J. This action was brought by plaintiff in error to recover for personal injuries sustained and for the loss of certain baggage caused by the reason of an accident on the defendant’s railroad, alleged to have occurred while said plaintiff was being transported as a passenger thereon.

<p>Negotiable Paper — Indorsement—Contract of Guaranty.</p> <p>In an action against an indorser, as guarantor of certain promissory notes, it is held: That the only liability of the defendant was that of an indorse'-, the mere fact tint it placed its name twice on each note, being insufficient to authorize the holder to write over one signature, or both, a contract of guaranty.</p>

<p>Evidence — Parol, Inadmissible to Alter or Vary Terms of Condition in a Mortgage — Admissibility of Former Decree — Privity—Colorations— Defense of Usury — Sec. 11, Gh. 74, R. S.</p> <p>1. Parol evidence is inadmissible to alter or vary the terms of the condition in a mortgage by enlarging it from specified kinds of indebtedness to others not embraced but excluded by the language of the condition.</p> <p>2. Sec. 11, Ch. 74, R. S., which prohibits corporations from interposing the defense of usury, is held to apply to a case wherein the defendant corporation was not a party to the usurious transaction alleged.</p> <p>3. One not a party to a judgment or a decree may sometimes be bound thereby by reason of privity of law, of blood, or of estate.</p> <p>4. In the absence of fraud or collusion, it seems that those claiming under a second trust deed are bound by the decree in a foreclosure proceeding, adjusting and establishing the amount of the grantor’s indebtedness secured by the first trust deed, although they were not parties to such proceeding.</p>