Volume 23 — Illinois Appellate Court Reports

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

<p>Sales—Warranty—Evidence—Instructions—Error without Prejudice.</p> <p>In an action to recover for a breach of an alleged warranty upon the sale of a cow, it is held: That the admission of subsequent statements made by an agent of the defendant, though erroneous, did not prejudice the defendant; that the evidence of men experienced in the cattle business was competent on the question of damages; and that an instruction given for the plaintiff, though not technically accurate, taken in connection with those given for the defendant, could not have misled the jury.</p>

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

<p>In error to the Circuit Court of La Salle Comity; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>In error to the County Court of La Salle County; the Hon. Hiram T. Gilbert, Judge, presiding.</p> <p>In connection with this case see the following case of Hoadley v. People.</p>

Lt error to the County Court of La Salle County; the Hon. Hiram S. Gilbert, Judge, presiding. In connection with this case see the preceding case of Burke v. People.

<p>Husband and Wife—Agency—Evidence—Threshing Machine—Secs. S and 4, Gh. 70, R. S.</p> <p>1. In an action against a wife to recover the amount of an indebtedness alleged to have been incurred by the husband as her agent, it is held: That the evidence shows that the husband had continuously acted as the agent of the wife in the management of her farm for a number of years; that this fixes her legal liability for indebtedness connected therewith, although'she may have had no actual notice of such indebtedness; that the scope of the husband’s agency did not extend to the borrowing of money; and that the agency, as to money borrowed, can not be proved by the husband’s statements.</p> <p>2. An action to recover for services rendered with a threshing machine can be maintained, although the tumbling rods and boxes of the machine were not boxed, unless it appears that the machine in question was run by horse power.</p>

<p>Corporations-Authoriljj of President to Execute Judgment Hotes-Confession of Judgment--1!Iotion to Vacnte-Practice.</p> <p>1. The president of a corporation is not authorized, simply by virtue of his office, to confess a ~uclginent against the corporation or to execute a ~var-rant of attorney empowe~ing another to do so.</p> <p>2. Where a judgment is entered in vacation, evidence necessary to its validity should be filed aiid preserved in the record. But all that is requireci to impose upon the clerk the duty to enter up the judgment is, that the papers filed with him make out a prim~ fcteie case.</p> <p>3. Affidavits and exhibits are admissible in support, or in resistance of a motion to vacate and set aside a judgment by confession, as well as upon a motion to open the judgment to admit a defense on the merits.</p> <p>4. Upon a writ of error to review the aotion of the conrt below, in overruling a motion to vaoate and set aside a judgment by confession on certain judgment notes, exeonted by the president and the plaintiff as secretary of the defendant corporation. it is held: That the papers filed with the clerlr, made out a sullicient prima fade case to authorize the entry of the judgment; that the judgment notes with warrants of attorney, authorizing confessions of judgment, were unauthorized; that the plaintiff had ample notice that the authority given by the board of dire3tors to the president to cxecute papers in connection with a certain contract and to the secretary to alEx the corporate seal thereto, was expressly limited to such papers as were necessary to carry into effect the contract made, including simple promissory notes with mortgage security; tbat affidavits in support end in resistance of tbe motion to vacate the judgment were properly admitted by the court below; and that the judgment should be vacated and the plaintiff remitted to his ordinary remedy at law.</p>

<p>Drainage—Open Ditch—Right to 'Fill—Pa,rol License—Revocation—Injunctions—Weight of Evidence—Number of Witnesses.</p> <p>1. A parol license to use a ditch upon the lands of another, is revocable.</p> <p>2. The weight of evidence upon an issue of fact is not determined merely by the number of witnesses who testify.</p>

<p>Principal and Surety—Appeal—Subrogation—Pleading—Evidence— Admissions of Deceased Principal.</p> <p>1. Where a judgment against a principal debtor and his surety- has been appealed by the former without the consent of the latter, the surety upon payment of the judgment is equitably entitled tobe subrogated to the rights of the judgment creditor against the surety on the appeal bond.</p> <p>2. In the case presented, it is held: That, although the allegation of suretyship in the bill should have been more specific and definite, the bill and amended bill considered together sufficiently support the decree in favor of the complainant, especially in view of an admission contained in the answers; that the representatives of the judgment creditor and the principal in the appeal bond were not necessary parties; that it is to be presumed the court disregarded certain incompetent evidence; and that certain declarations of the principal in the appeal bond, who was deceased, were properly admitted.</p>

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

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

Clark W. Upton, Judge, presiding. This was an action of assumpsit brought by the plaintiff in error to recover from the defendant in error the sum of §875, being thirty-five per cent, of the par value of one hundred shares of the capital stock of the plaintiff in error under the following contract: “Capital $3,000,000. Shares $25.

<p>Sales—Agency—Warranty—Parol Evidence—Instructions.</p> <p>1. As a general rule an agent who has power to sell has authority to do all that is necessary and usual in the course of the business of selling. If it is usual in the trade to warrant, the agent has authority to warrant.</p> <p>2. Where one contracts with the agent, and the principal recognizes the transaction, a warranty by the agent is a warranty by the principal.</p> <p>3. Parol evidence of a warranty made on behalf of the plaintiff by its agent is admissible, although the agent subsequently gave a personal warranty in writing.</p> <p>4. Where one of several pleas presents a defense to the entire action, and it is sustained by the evidence, a partial defense presented in another plea is not an admission of liability.</p> <p>5. An omission in an instruction is not error if it is supplied elsewhere in the instructions given.</p> <p>6. Instructions which, taken together, are accurate and clear, are sufficient, although not every instruction is itself entirely accurate.</p> <p>7. It is not error to refuse instructions which are not based upon the evidence, or which present questions embraced in others already given.</p>

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

<p>Appeal from the Circuit Court of Kendall County; the Hon. C. W. Upton, Judge, presiding.</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 La Salle County; tliQ Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the County Court of La Salle County; the Hon. Hikam T. Gilbebt, Judge, presiding.</p>

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

<p>Trustee's Sale—Bill to Redeem—Settlement—Estoppel—Usurp.</p> <p>Upon a bill to redeem certain premises on payment of the balance of a loan made to the complainant, secured on said premises, after abating the interest because of usury, it is held: That a certain quit-claim deed made by a third party at the request of the complainant, said third party having accepted a conveyance from him. for that purpose, affirmed and ratified the trustee’s deed to the defendant and amounted to a complete settlement of the entire matter.</p>

<p>Mechanic's IAen—Agency— Evidence.</p> <p>1. The statute does not give a mechanic’s lien in favor of one furnishing labor and materials under a contract with a tenant for life.</p> <p>2. The existence of an agency can not be established by the admissions of the supposed agent.</p> <p>3. The evidence in the case presented does not show a ratification by the owner of the supposed agent’s acts.</p>

<p>Hitsband and Wife—Liability of Wife for Family Expenses—Sec. 15, Chap. 68, R. S.—Construction by Iowa Courts, Adopted with Statute.</p> <p>1. The liability of the wife for family expenses, under Sec. 15, Chap. 68, R S„ is not limited to indebtedness incurred for necessary family expenses. The statute applies to the expenses of the family without limitation or qualification as to kind or amount, and without regard to the wealth, habits or social position of the party.</p> <p>2. The husband may contract in his own name for the support and welfare of his family, and the wife’s consent is not required to charge her with liability for indebtedness so incurred.</p> <p>8. Goods purchased by the husband for his individual use and used by him exclusively, constitute a family expense within the statute.</p> <p>4. In the case presented, it is held: That the wife is liable for the goods purchased by the husband for his own use: and that he was not, as shown by the evidence, living separate and apart from his family.</p> <p>5. The adoption of a statute of another State generally carries with it the construction of the statute by the courts of that State.</p> <p>6. The construction by the courts of Iowa of the statute in question does not conflict with our laws or the practice prevalent under them.</p>

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

<p>Payment—Application of—Receipt—Burden of Proof—Instructions.</p> <p>1. A receipt in full of “ account ’’ does not mean in full of notes and claims.</p> <p>2. The burden of proof is upon him who alleges that such a receipt was intended to cover a note.</p> <p>3. In an action against a surety on a note, wherein this court reversed a former judgment for defendant for errors in the instructions, it is held: That the objectionable features of an instruction, assuming that a receipt in full of “ account ” was prima facie evidence of the payment of the note, were not removed by a certain modification of the instruction; that another instruction which this court condemned at the former hearing, is still, as modified, open to the objection that it presents questions foreign to the issue; that an instruction touching the creditor’s right to make application of payments, made generally by the debtor, should have been given as asked by the plaintiff; and that a certain deposition was properly admitted, although certain questions asked on cross-examination were not answered.</p>

<p>Statute of Limitations—Acts of 1849 and 1872—New Promise.</p> <p>1. A new promise made in 1875. to pay a note which was executed in 1869, is within the Statute of Limitations of 1872, being in effect a new contract.</p> <p>2. Under the Act of 1872 a new promise to have the effect to extend a note must be in writing.</p>

<p>Railroads—Authority to Lay Tracks in Street—Ordinance—Absence of Requisite Petition of Owners of Abutting Property—Injunction.</p> <p>Where, by law, a petition signed by the owners of more than half of the street frontage is requisite to the validity of an ordinance granting the privilege to any railroad company to lay down its track in any street abutting the property of such owners, a bill lies by them, or any of them, to enjoin the laying down of such tracks under an ordinance passed in the absence of the petition of the requisite number.</p>

<p>Appeal from the Circuit Court of Kankakee County; the Hon. James H. Ore, Judge, presiding.</p>

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

<p>Railroads—Personal Injury—■Action by Employ e~1?ellow-Servant$— Negligence.</p> <p>In an action by an employe of a railroad company for a personal injury, caused by a car leaving the track, this court waives the question whether the plaintiff was a fellow-servant with the conductor and engineer, and holds that the evidence fails to show negligence on the part of the defendant.</p>

John Y. Eustace, Judge, presiding. In 1881 The Rock River Packing Company was organized with a capital stock of 816,000, of which Joseph T. Miller, /appellee) subscribed and paid for 85,000, lie at the same time becoming a director of the corporation. ■ In 1881 the capital stock was increased to 825,000 of which said Miller took and paid for 82,800.

<p>Appeal from the Circuit Court of La Salle County; the Hon. Chables Blanchard, Judge, presiding.</p>

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

<p>Practice—Entry of Judgment—Error in Record—Motion to Quash Execution—Evidence—Remedy.</p> <p>1. Parol evidence is inadmissible to show that the entry of a judgment, which appears of record to have been prior to the issue of execution, was in fact subsequent thereto.</p> <p>2. Where the record does not state the facts as they occurred, the remedy is an application to the court io correct the record.</p>

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

Charles Kellum, Judge, presiding. On October 21, 1884, Thomas Turner died in De Kalb County, at the residence of the appellant. He had made a will in May, 1884, by which he had, after making several specific legacies, made the appellee and his brother, James Tabbernor, residuary legatees. His property consisted, as shown by the inventory, of real estate of the value of §1,000 and personal property consisting almost entirely of promissory notes of the value of about $2,500.

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

<p>Evidence—Bill of Exceptions in Former Trial—Municipal Corporations —Flooding Private Premises—Damages.</p> <p>1. A bill of exceptions is not admissible to show what the evidence of a witness was at a former trial. Such evidence must be shown by the testimony of sworn witnesses.</p> <p>2. In an action against a municipal corporation to recover damages for flooding the plaintiff's premises, the damages assessed by the jury are held not to be excessive, but merely compensatory.</p>

<p>Municipal Corporations—Change of Sideivalh—Action for Damages— Benefits—Instructions.</p> <p>In an action against a municipal corporation to recover damages alleged to have been caused by a change in the grade of a sidewalk in front of the plaintiff’s premises, it is held: That certain of the instructions were defective in ignoring the question'of special benefits; and that the evidence was so conflicting as to require accuracy in all the instructions.</p>

<p>Replevin—Husband and Wife—Ownership of Personal Property—Presumption—Fraudulent Conveyances—Statutes.</p> <p>1. Where husband and wife reside together as such, even though boarders are kept in the house, the presumption of law is that the goods, chattels and personal property in the house and in their joint possession, are the property of the husband.</p> <p>2. The ownership of the personal property is not affected by the inefficiency of the husband as a business man and the energetic character of the wife, even though she controls the husband and in large measure the business in which they are engaged.</p> <p>3. Conveyances of personal property by the husband to a third party and by him to the wife, there being no change of possession and no consideration therefor, are in conflict with the statute requiring conveyances of goods and chattels between husband and wife to be acknowledged before a Justice and recorded, and are fraudulent in law, if not in fact.</p> <p>4. Whore one has or claims an interest in a particular business, he will be conclusively presumed, as to third parties, to have such knowledge and notice of the way in which ic is conducted, as in the discharge of his plain duty he might or ought to have obtained.</p>

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

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

<p>Appeal from the Circuit Court of La Salle County; the lion. Hiram T. Gilbert, Judge, presiding.</p>

William Bbowh, Judge, presiding. This was a bill in chancery filed by appellee against Thomas S. Beach as Sheriff and Michael Moriarty.

<p>Partnership—Dissolution—Receiver1 s Accounts—Reasonable Diligence— Shrinkage—Mistake.</p> <p>1. The law only requires that a receiver, appointed to take charge of the property and settle the business of a partnership, shall use ordinary and reasonable diligence in the execution of his trust.</p> <p>2. Upon appeal from a decree settling the accounts of sueii a receiver, it is held: That he was improperly charged with a discrepancy between the original invoice and the amounts sold; and that he should have been allowed a certain credit claimed on account of error and mistake.</p>

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

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

Charles Blanchard, Judge, presiding. This was a suit commenced by appellee against the firm of O. J. Wilson & Company, composed of appellant, O. J. and Wm. Wilson, on a promissory note purporting to be signed by. said firm, payable to appellee, bearing date August 1,188J, due March the 1st, 1885, for the sum of §800, drawing eight per cent, interest from date. The note was signed by Wm. Wilson, one of the members of the firm, in the firm name.

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

<p>ilie's Lien—Destruction of House by Fire before Completion— Mortgage on Lot for Purchase Money—Proceeds of Insurance on House—• Priority of Liens—Practice—Appeals. MecJiai</p> <p>1. Upon a bill filed to enforce a lien for lumber and material used in the construction of a house, which was destroyed by fire before completion, and to obtain a decree finding the mortgage lien for purchase money on the premises secondary and subordinate to the lien of the complainant in respect to the insurance money due on a policy issued to the owner, the loss being payable to the mortgagee by whom the premium was paid, it is held: That the filing of the mortgage for record and the making of the contract being on the same day, the presumption is that they were simultaneous acts; that under the circumstances, as the mortgage is the older equity of the two, it is a prior lien on the lot; that the mortgagee has a prior lien on the insurance money; and that the rights of the mortgagee are not affected by the fact that he obtained a high price for the lot.</p> <p>2. Where an appeal is taken from the Circuit Court to this court, the case is, in contemplation of law, pending here from the moment the appeal bond is executed and filed in the Circuit Court. Thereafter that court is without jurisdiction of a motion for a rehearing, even within the term.</p>

Geokge W. Stipp, Judge, presiding. This is the same ease that was here at the May term, 1885, and at that time the judgment was reversed and the canse remanded for a new trial for reasons stated in that opinion, 17 Ill. App. 650. [See also, K. & S. R. R. Co. v. Horan, 22 Ill.

<p>In error to the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

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

Joseph M. Bailey, Judge, presiding. George W. Woodburn died testate on the 19th day of July, 1872, and left him surviving an only child, James K. Wood-burn, his son by a deceased wife, and Phcebe A. Woodburn, his widow; and by his last will and testament he appointed Peter Ege as his executor. Peter Ege qualified and took upon himself the duties of the trust.

<p>Slander—Allegations and Proofs Must Correspond—Instructions.</p> <p>In an action for slander the allegations and proofs must correspond. The plaintiff must prove the words alleged in the declaration, or so much of them as will sustain his cause of action. It is not enough to prove other words of like import and meaning.</p>

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

<p>Negotiable Instruments—Evidence—•Admissions and Declarations of Holder—Instructions.</p> <p>1. When the holder of a promissory note already matured, makes admissions and declarations against his interest in respect thereto while such holder, such admissions and declarations are competent as original evidence against a subsequent assignee.</p> <p>2. Where there is any evidence, however slight, to sustain a legal claim or defense, the party introducing it is entitled to have it submitted to the jury by appropriate instructions.</p> <p>3. The court is not bound to instruct the jury on mere abstract propositions of law.</p>

<p>Appeal from the Circuit Court of Peoria County; the Hon. S. S. Page, Judge, presiding.</p>

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

<p>Receipt—Parol Evidence to Overcome—Instructions.</p> <p>1. In an action to recover a balance claimed on an account, it is held: That an instruction concerning parol evidence to overcome a receipt in full, was not erroneous; that there was no substantial error in the other instructions given; and that the evidence sustains the verdict for the plaintiff.</p> <p>2. The appellant can not complain of an instruction given for the appellee, which is substantially like an instruction given at his request.</p>

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

<p>Evidence—Belevancy—Instructions—Weight of Evidence—“ Character and, Skill of Witnesses.”</p> <p>1. Evidence to be admissible must be relevant and pertinent, and confined to the issue. Evidence of collateral facts, or those which are incapable of affording any presumption as to the principal fact or matter in dispute, is inadmissible.</p> <p>2. Where there is a direct conflict of evidence between the parties, no improper evidence, which might influence the jury, should be admitted.</p> <p>3. An instruction that the weight and credit to be given to the testimony is to be determined by the “ character and skill of the witnesses, ” is improper.</p>

<p>Artesian Well—Contract to Sink—Evidence.</p> <p>In an action to recover a balance claimed to be due the plaintiff on a contract for sinking an artesian well, this court holds that the evidence, although conflicting, sustains the verdict for the plaintiff.</p>

<p>Attachment Act—Clause 9, Sec. 1—Proviso—Recital■ in Receipt, a Sufficient Writing—Signature—Fraud—Attachment—Prior Unrecorded Assignment—Notice.</p> <p>1. A receipt given to the “former guardian” of certain wards, and signed by the defendant as “ succeeding guardian, ” is a sufficient writing within the proviso contained in clause 9, Sec. 1, of the Attachment Act, to charge the defendant, who falsely represented that he had qualified as such guardian.</p> <p>2. Where an attachment is levied without notice of a prior assignment, which has not been recorded and under.which the assignee has not taken possession, the assignment is subject to the attachment.</p>

<p>Life Insurance—Mutual Benefit Associations—Action of Debt—Parties— Forfeiture—Defective Declaration.</p> <p>1. An action of debt lies by the beneficiaries named in a certificate of membership in a mutual benefit association to recover the death benefit thereby secured.</p> <p>2. In the case presented, it is held: That the certificate was not forfeited by a failure to pay an assessment made by the society which the defendant succeeded; and that the declaration is fatally defective in not containing proper averments touching the amount due the plaintiffs,</p>

<p>Replevin—Notes—■Evidence—Instructions.</p> <p>In an action of replevin by the payee of certain notes against a surety, who claimed the right to hold them until the maker should furnish security to indemnify the sureties, it is held: That although the evidence is conflicting, the jury were justified in finding for the defendant; and that there was no error in giving and refusing instructions.</p>

<p>In error to the City Court of Alton; the Hon. James E. Dunnegan, Judge, presiding.</p>

Louis; the Hon. William P. Launtz, Judge, presiding. This was an action on the case originally commenced by the appellee jointly with one William Eddy.

<p>Appeal from the .Circuit Court of Pulaski County; the Hon. Robert W. McCartney, Judge, presiding.</p>

<p>Administrator's Sale—Note—Intoxication of Maker as a Defense— Sale of Safe without Key—Instructions.</p> <p>In an action on a note given in payment for a second-hand safe, purchased at an administrator’s sale, it is held: That the evidence fails to show that the maker was sufficiently intoxicated when he made the purchase to excuse him from the performance of his contract; that the failure of the plaintiff to deliver a key with the safe is no defense to the action, there having been no representation at the time of the sale that the safe was complete; and that certain instructions, assuming that the key was necessary to the use of the safe, were erroneous.</p>

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

<p>Certiorari-—Judgment in Justice Court—Whether on Confession.</p> <p>A judgment entered by a Justice of the Peace, which is based upon an admission by the defendant of the amount due, is not entered by confession, and a writ of certiorari lies to remove the cause in which such a judgment is entered into the Circuit Court.</p>

Bo iíbbt W. hloCABTYEY, Judge, presiding. The appellants employed appellee to teach their district school for five months, commencing November 5,1883, for the sum of 830 per month, a,nd entered into a written contract with him evidencing such hiring. He taught one month and nine days, wheiv the school house was destroyed by fire, and the school consequently was broken up.

Ik error to the Circuit Court of Effingham County; the Hon. William C. Jokes, Judge, presiding. In connection with this case, on the question of directing a verdict for the defendant, see the following case of Knight v. Gaultney.

Amos Watts, Judge, presiding. In connection with this case, on the question of directing a verdict for the defendant, see the preceding case of Wood v. I. C. R. R. Co.

<p>Fire Insurance—Interest of Assured—Leasehold—Knoioledge of Agent —Estoppel—■Practice—Trial by Court.</p> <p>1. Where the agent of an insurance company knows the interest of the assured in the property, and does not require a statement thereof, the company will be estopped, and can not avoid the policy because his interest varies from that stated in the application made by the agent.</p> <p>2. Where an insurance company by its agent was informed of facts which it insists on the trial effected a forfeiture, but did not elect to cancel the policy, it will he liable under its policy for a loss.</p> <p>3. Where a cause is tried without a jury, the court may properly refuse to hold as the law, propositions which are not based on the evidence.</p>

Amos Watts, Judge, presiding. The plaintiffs in error filed their petition in the Circuit Court of Madison County on the 2d day of October, 1883, for a writ of mandamus to compel the defendants in error to make an appropriation of $1,500, in addition to $1,000 which had been appropriated by the County Board, to aid in building a bridge over Wood Kiver in their township.

Amos Watts, Judge, presiding. This suit was brought by the appellee to recover money claimed to be owing to him by the appellant. He filed the ■common counts and the defendant pleaded the general issue, the Statute of Limitations of five years, and one of failure of consideration. The cause was submitted to the court for trial, who found the issues for the plaintiff and assessed his damages at $390, for which judgment was entered, and the defendant appealed.

Bobebt W. MoCabtney, Judge, presiding. This action was brought upon a general indebitatus assumpsit for work and labor performed by the appellee for the appellant in clearing a piece of land and a roadway, and for one frame house claimed to have been sold. There being no evidence to support the count for the house the court directed the jury to disregard it, and the verdict went upon the other counts for the appellee.

<p>Appeal from the Circuit Court of Pope County; the Hon. Robert ’W. McCartney, Judge, presiding.</p>

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

<p>Real Property—Sale under 'Execution—Subsequent Reversal—Failure of Title—Payment to Extinguish Homestead—Acquiescence—Estoppel— Notice.</p> <p>1. Where a judgment creditor purchases lands at a sale under an execution issued on the judgment, his title fails upon a reversal of the judgment, although he obtains a subsequent judgment on the same demand.</p> <p>2. In the case presented, it is held: That the defendant was not required to make a motion to set aside the sale; that his acceptance of the sum of §1,000 paid by the purchaser to extinguish his homestead, does not show his acquiescence in the sale nor estop him from denying its validity; that the grantee of said purchaser is chargeable with constructive notice of the proceedings affecting the title to the premises in question, and with the actual notice that the defendant's possession gave of his rights.</p>

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

<p>Replevin—Pleading—Conclusion of Law—Defective Pleas.</p> <p>1. In pleading, facts only are to be averred—not arguments, inferences, or matters of law.</p> <p>2. A plea to a declaration in replevin, setting up as a defense that the animals in question were taken damage feasant and distrained under the statute, is fatally defective when it merely alleges that said animals were “ wrongfully ” upon the defendant’s premises.</p> <p>3. Where there are several pleas setting up different defenses, each plea must be complete m itself.</p>

<p>Special Contract for Services of Traveling Salesman — Evidence — Destroyed Letter.</p> <p>In an action to recover for services performed by the plaintiff as a traveling salesman on the basis of an alleged special contract for a salary, it is held: That the evidence does not sustain the claim of the plaintiff; that the offer made through an employe of the defendants by letter, which the plaintiff destroyed, contemplated further action before the amount to be paid for his services should be fixed; and that the plaintiff can only recover the value of his services.</p>

<p>In error to the Circuit Court of Jackson County; the Hon. O. A. Harker, Judge,, presiding.</p>

David J. Baker, Judge, presiding. In Hay, 1887, Harvey B. Parker was adjudged insane by the County Court- of Franklin County, and was committed to the asylum. At the September term, 1878, of said court, the appellant was appointed his conservator under the statute, and filed his inventory on the 23d day of that month.

Clair County; the Hon. Amos Watts, Judge, presiding. This was a bill in equity filed by appellee against the appel. lantto settle a partnership account, the partnership having been dissolved by mutual consent. The articles of co-partnership were in writing and made an exhibit to the bill.

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

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

George W. Wall, Judge, presiding. As the court declines to consider this case upon its merits for want of an abstract of the record in compliance with the rule of court, the entire abstract, as filed by appellant, is here inserted: Abstract. First. Transcript of proceedings in the Circuit Court of Monroe County, September term, 1886, on petition for mandamus. A hearing was had before Judge Wall and a writ of ma/ndamus refused. tSecond..

<p>Practice—Affirmance for Want of Abstract.</p> <p>This court declines to consider the merits and affirms the judgment of the court below for want of a sufficient abstract.</p>

<p>Railroads~Fenees—Gates—Injury to Stoclc—Conflict of Evidence— Question for Jury—Instructions.</p> <p>1. Where the evidence is irreconcilably conflicting and there is nothing in the record to indicate that the jury were influenced by improper motives, this court will not interfere with their finding.</p> <p>2. Railroad companies are only required to use reasonable care and diligence to keep gates closed at farm crossings.</p> <p>3. The duty of keeping railroad fences, gates and bars in repair can not be shifted from the company to the owner of stock injured, merely because through the company’s neglect such owner has found it necessary to make some temporary repairs thereon.</p> <p>4. In the .case presented, it is held: That in view of the conflict of evidence both parties were entitled to have the jury fairly instructed; that the appellant was not injured by the instructions, although one was not based on the evidence and all were not strictly accurate; and that a certain instruction asked by the appellant was properly refused.</p>

<p>Appeal from the Circuit Court of Franklin County; the Hon. Kobebt W. McCabtney, Judge, presiding.</p>

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

<p>In error to the Circuit Court of Madison County; the Hon. William H. Snyder, Judge, presiding.</p>

George W. Wall, Judge, presiding. This suit was brought upon a promissory note for $900, dated December 27, 1884, due on September 1, 1885, and payable to the Hoover, Owens & Bentchler Company, with eight per cent, interest after maturity, and assigned by the payee to the plaintiff below and appelant here.

William H. Snyder, Judge, presiding. The declaration in this case was filed by the appellant against the appellees jointly, and contained the common counts only, and upon a sale being entered for that purpose the plaintiff filed a bill of particulars referring to certain fee bills attached thereto, and proceeds to state that on June 13, 1882, the Board of Supervisors of said Madison County adopted a resolution as follows: “ June, 13,1882. “ The following resolution was…

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

<p>In error to the Circuit Court of Bichland Countyj the Hon. William C. Jones, Judge, presiding.</p>

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

Clair County; the Hon. Amos Watts, Judge, presiding. It appears from the record that the road of appellant in connection with the Illinois Central Railroad forms a continuous line for through business from East St. Louis to New Orleans, running through Kenner, a station upon the latter road about ten miles from the latter city.

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

<p>Appeal from the Circuit Court of Madison County; the Hon. William H. Seydeb, Judge, presiding.</p>

Louis; the Hon. W. P. Launtz, Judge, presiding. The defendant in error filed his hill in chancery to enforce a mechanics’ lien, alleging that on March 17, 1881, Bridget Burns, plaintiff in error, was owner of a leasehold estate in a certain described lot of land; that on said date he entered into a written contract with her father, John Burns, to build a house on said ground; that at the making and signing of the contract Bridget Burns gave full consent and approval, and…

<p>Appeal from the Circuit v Court of Pulaski County; the Hon. C. S. Congee, Judge, presiding.</p>

In ebbobTo the County Court of White County; the Hon. J. B. Williams, Judge, presiding. At the August term of 1886 of the White County Circuit Court, an indictment was presented against the plaintiff in error under the 127th Section, B. S., 1874, of the. Criminal Code, which was certified to the County Court for process and trial under the statute.

<p>Bes Adjudicata—Bankrupt Act of 18S7—Fraudulent Conveyances—Parties—Bight of Action in Assignee—Limitation of Two Tears.</p> <p>1. The decision of a court of competent jurisdiction is a final and conclusive settlement of the questions involved in any particular controversy as to the parties concerned therein, and as to any title claimed through or under them.</p> <p>2. Under the provisions of the Bankrupt Act of 1867, the assignee alone could maintain a suit, after the adjudication, to set aside fraudulent conveyances made by the bankrupt, to subject property of the bankrupt held in the name of another to the payment of claims proved and allowed, or to remove secret trusts.</p> <p>8. In the case presented, it is held: That creditors whose claims were proved and allowed against the bankrupt’s estate, can not maintain a bill to set aside fraudulent conveyances and to remove a secret trust; that the assignee only could bring said suit; and that his failure so to do within the statutory limitation of two years would not transfer the right of action to the creditors.</p>

<p>■ Appeal from the Circuit Court of Madison County; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Husband and Wife—Separate Maintenance—Necessary Averments— Variance.</p> <p>1. In a bill tor separate maintenance the complainant must set out the facts upon which she bases the general allegation that she is living separate and apart from her husband without her fault.</p> <p>2. Where the evidence makes another and different case than that stated in the bill, it will not sustain the decree for the complainant.</p> <p>3. Upon a bill for separate maintenance this court reverses a decree for the complainant, because the proof fails to support the allegations, and because the bill contains no averments to support the findings on which the relief decreed is based.</p>

Kirk Hawes, Judge, presiding. An action of forcible entry and detainer was commenced by the appellant against the appellee, to recover possession of certain ground known as freight station grounds and particularly described in the coinplaint. On a trial before the court without a jury the finding and judgment was for appellee, and such judgment is brought to this court for review.

If error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. This is error to the court below upon a judgment in favor of Hash against Julia and A. L. Burns, in a proceeding under the act in regard to forcible entry and detainer.

<p>Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

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

<p>Alleged Conspiracy to Defraud Bank—Action against Depositor to Recover Overdrafts—Evidence—Instructions.</p> <p>In an action brought by bankers against a depositor to recover for moneys obtained from their bank by means of an alleged conspiracy between the defendant and their bookkeeper, it is held: That although the falsification of the defendant’s account may have been for the sole purpose of aiding the bookkeeper to obtain the plaintiff’s money, the defendant would be liable, if he loaned the bookkeeper his checks knowing that the money drawn on them was not to be charged to his account; that the fact that the bookkeeper falsified the defendant’s account was one which it was essential for the jury to consider; and that an instruction to the effect that they might disregard the books as affecting the plaintiff’s claim against the defendant, was erroneous.</p>

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

<p>Statute of Limitations—Justice's Judgment not within See. IB—Appeal Bond.</p> <p>1. A Justice’s judgment is not evidence of indebtedness in writing within Sec. 16 of the Statute of Limitations, and the time within which an action may be brought thereon is five years.</p> <p>2. An appeal bond is a mere security for the payment of the judgment, and is governed by the same period of limitation.</p>

Richard Prbhdergast, Judge, presiding. This action was brought to recover for 5,000 cigars shipped by appellants to appellee on the order of one C. J. Miller.

Joseph E. Gaby, Judge, presiding. Appellant, who was plaintiff in the court below, brought an action of trespass against appellees.

Elliott Anthony, Judge, presiding. This was an action by the defendant in error as buyer, against the plaintiff in error as manufacturer and seller, to recover back the price paid by former to the latter, of twenty-five frog points, as upon the rescission of the contract. The declaration contained two special counts upon an executory contract of sale of articles of a specific quality and description and the common counts.

Joseph E. Cart, Judge, presiding. November 11, 1886, Mackey, the appellee, recovered a judgment in the Superior Court against McCaffrey for the sum of §1,044.55 damages besides costs, upon which a fi. fa. was duly issued and delivered to the Sheriff to be executed and levied upon a• stock of goods of the defendant, on the same day as aforesaid, which goods the Sheriff, November 23, 1886, sold pursuant to law, from which there was realized the sum of §607.64 exclusive of…

<p>Appeals'from and writs of error to the Circuit Court of Cook County; the Hon. Hurray F. Tuley, Judge, presiding.</p>

<p>Appeal from the County Court of Cook County, the Hon. Biohard Pbeitobegast, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Henry H. Shepard, Judge, presiding.</p>

<p>Gambling Debt—Judgment by Default—Motion to Set Aside—See. 135, Criminal Code.</p> <p>1. The latter part of Sec. 135, Chap. 38, R. S., authorizing judgments based on gambling contracts to be set aside on motion, has no reference to adversary judgments. It applies only to. judgments “ given ” by confession or by consent.</p> <p>2. A judgment by default can not, therefore, be set aside on motion under said section.</p>

Henry M. Shepard, Judge, presiding. The appellee, Locke, having, January 15, 1885, obtained a judgment in assumpsit by confession upon warrant of attorney against Clingenberger in the Circuit Court for $977.68 damages, and caused an execution to be issued thereon of that date to the Sheriff of Cook County, which had been returned nulla bona, instituted proceedings in chancery against said Clingenberger and MacVeagh & Co. to have certain prior executions issued in favor of…

<p>Instructions—How far Controlled by Contract—Witnesses—Instruction to Disregard Testimony—Contract for Building—Certificate of Architect.</p> <p>1. In an action to recover a balance alleged to be due for contract work in and about the erection of a building, it is held: That an instruction, to the effect that certain payments were conclusive against the defendant and that material furnished and work done were in pursuance of the contract, was erroneous, being contrary to the express terms thereof; and that the contract, as between the parties, is the law on the question involved.</p> <p>2. It is improper to direct the jury, if they believe that any witness has wilfully sworn falsely as to a material fact, to disregard his testimony, the correct instruction being that they may do so.</p>

<p>Libel—Evidence of Character—Improper Admission of—Exceptions— Waiver.</p> <p>1. In an action to recover damages for an alleged libel, it is improper to permit the plaintiff, in the first instance and before any other testimony is given, to introduce witnesses to testify to his general character.</p> <p>2. The defendant does not waive his exceptions to such evidence by cross-examining the plaintiff’s witnesses.</p>

<p>Practice—Bill of Particulars—Evidence—Variance—Waiver—Doomages —Conflict of Evidence—Question for Jurij.</p> <p>1. Where evidence is offered and objected to, but not on the ground that it varies from, or is not warranted by the bill of particulars, the question of variance is waived.</p> <p>2. The fact that the damages are not as large as the jury might have been warranted in assessing them, is not a matter of which the defendant can complain or take advantage.</p> <p>8. Where the evidence is conflicting it is for the jury to find the facts in view of all the evidence.</p>

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

<p>Mechanic’s Lien—Statute of Limitations—Lis Pendens.</p> <p>1. Lis pendens is general notice to all the world of the complainant’s equities; but it presents no obstacle to the purchase by a defendant from a person not a party to the suit of a title superior' to that of the complainant and the setting up of such title to defeat the complainant’s equities.</p> <p>2. A mechanic’s lien can not be enforced against the purchaser at a sale under execution after six months from the date when the last payment for labor or materials became due.</p> <p>3. 'When the period of limitation has once run against a mechanic’s lien, the bar is perpetual.</p>

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

<p>Public Schools—Unauthorized Contract to Build School House—Powers of Board of Education—Secs. 48 and 80, Chap. 122, B. S.—Evidence.</p> <p>1. Where a school district has become organized under Sec. 80, Chap. 122, R. S., the Board of Education has no power to enter into a contract for the erection of a school house without a petition of a majority of the voters of the district.</p> <p>2. The Board of Education, is not vested with the powers previously exercised by the School Directors, the powers of both bodies being precisely defined and limited by the statute.</p> <p>3. Even if this court could consider original evidence, the petition in the case presented is insufficient to show that a majority of the voters of the district desired a new school house."</p>

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

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

<p>In error to the Circuit Court of Cook County; the Hon. John G. ¡Rogers, Judge, presiding.</p>

In ebbob to the Superior Court of Cook County; the Hon. John P. Altgehd, Judge, presiding. This was an action under the statute by plaintiff in error as administrator of the estate of Martin A. O’Sullivan, deceased, against the railroad company, defendant in error, to recover damages to the next of kin of said deceased, resulting from his death, which was caused, as it is alleged, by the fault and negligence of defendant, its agents and servants.

Lobin O. Collins, Judge, presiding. Appellee recovered a judgment against the County of Cook for the sum of 844,675.03, the amount of several county orders which were declared on as bills of exchange which it was alleged had been indorsed by the holders thereof and delivered to appellee.

<p>In error to the Circuit Court of Cook County; the Hon. John C. Bagby, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. This was assumpsit brought January 2, 1886, by appellee Detwiler as plaintiff, against the insurance company, appellant, to recover for services as agent rendered by the former for the latter, and damages for an alleged wrongful discharge of plaintiff by and from the employment of the defendant as its general agent. The declaration contains one special and the common counts for 'work and labor.