Volume 24 — Illinois Appellate Court Reports

Keek Hawes, Judge, presiding. This was a suit in assumpsit, brought by James J. McGrath against the City of Chicago, to recover the salary which the plaintiff claims is due him as city tax commissioner, for five months, from August 1, 1876, to December 31, 1876. The cause was tried before the court, a jury being waived, and such trial resulted in a finding and judgment for the defendant.

<p>In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.</p>

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

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

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

<p>Landlord and Tenant—Practice—Bill of Exceptions.</p> <p>In an action to recover rent, it is held: That, as the bill of exceptions fails to show that any exception to the finding or judgment for defendant was taken, or motion for a new trial made, neither the sufficiency of the evidence nor an objection to the form of the judgment can be raised in this court.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Johh P. Altgeld, Judge, presiding.</p>

<p>Statute of Limitations—Misnomer of Defendant—Amendment, not the B ■ginning of Neto Suit—Railroads—Dersonal Injury.</p> <p>1. Where suit is brought against A by the name of B, and he appears and defends, and pending the suit the mistake in the name of the defendant is discovered and corrected by inserting in the record his proper name, such amendment does not constitute the bringing of a new suit against A. This rule applies where the defendant is a corporation.</p> <p>2. In an action to recover damages for a personal injury, brought against the “Pittsburg, Ft. Wayne & Chicago Railroad Company,” instead of the “ Pennsylvania Company," by the negligence of whose servants the plaintiff was injured, it is held: That the Pennsylvania Company was the real defendant in the original summons; that the evidence was sufficient to warrant the jury in finding that the plaintiff, in suing out the original summons, intended to bring suit and in fact brought suit against said Pennsylvania Company; that the amendment of the record by inserting the proper name of the defendant was not the commencement of a new suit; and that the action is not, therefore, barred by the Statute of Limitations.</p>

John G. Rogers, Judge, presiding. An action of replevin was commenced by appellee against appellant in Justice Court, and the goods not being found, the writ stood as a summons in trover. Judgment was entered against the appellant by the Justice. An appeal was perfected to the Circuit Court where the case was submitted to the court for trial without a jury, and there was a finding and judgment against appellant for $150, to review which judgment this appeal is brought.

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

Jobs P. Altgeld, Judge, presiding. The declaration in this action was for maliciously, and without probable cause and by means of a false affidavit, procuring a writ of capias to be issued by Justice of the Peace, and the plaintiff to he arrested by a Constable, and while so under arrest by threats and imprisonment, extorting from plaintiff’s possession a certain warehouse receipt for certain goods, and wrongfully compelling plaintiff to indorse said warehouse receipt to the…

Elliott Anthony, Judge, presiding. This is an appeal from the judgment of the Criminal Court of Cook County against appellant, M. D. Brown, in a proceeding by scire facias upon a recognizance executed and taken before a Justice of the Peace, March 21,1885, by Samuel Gold-stein as principal and said Brown as surety, in the sum of $500, containing the following condition: “ Whereas, the above bounden Samuel Goldstein, on the 21st day of March, A. D. 1885, was brought before…

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

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

<p>Husband and Wife—Separate Maintenance—Evidence—Alimony and Solicitor's Fees.</p> <p>Upon appeal from a decree allowing separate maintenance, it is held: That the finding of the court below, that the wife was living separate and apart from the defendant without her fault, is sustained by the evidence, which was conflicting; and that the allowance for alimony and solicitor’s fees, although “full liberal,” was not, in view of all the circumstances, so excessive as to require a reversal.</p>

Kirk Hawes, Judge, presiding. This was debt by appellee, as plaintiff below, brought against appellants, as defendants, upon a bond made February 14, 1885, by one John A. Schleiss, as principal, who had been elected to the office of grand secretary of plaintiff for the term of one year, and by the defendants as sureties, in the penal sum of $8,000, conditioned for the faithful performance by said Schleiss of the duties of said office and that he would deliver all property,…

<p>Injunctions—Dissolution—Damages—Suggestion of—Measure of—Solicitor's Fees—Discretion of Court.</p> <p>1. Where an injunction has been dissolved, the damages to be allowed in the assessment upon a suggestion of damages, are only such as have resulted from the improper suing out of the injunction. Solicitor’s fees must be confined to the proper allowance for services rendered on the motion to dissolve.</p> <p>2. The allowance of solicitor’s fees in such cases rests somewhat in the discretion of the chancellor before whom the litigation has proceeded, and unless he has very clearly gone wrong, his discretion will not be interfered with by this court.</p> <p>3. In such a case this court will not reverse merely for the reason that the finding of the court below was for a less sum than the lowest amount fixed by the witnesses.</p>

Cykus Epleb, Judge, presiding. This was a petition filed by Charles Manske against William A. Paulsen, Lewis A. Brown, Flora A. Brown, August Zander, Otto Sclimidt and Henry Sierks, for a mechanics’ lien.

Henry 1VI. Shepard, Judge, presiding. Appellant filed this bill in chancery in the Superior Court of Cook County, as follows: Complainant, Newton P. Holden, of Frankfort, Will County, Illinois, represents, That on or about March 1, 1881, complainant became the owner in fee simple of the premises in question by virtue of the warranty deed, dated March 1,1881, from Eliza W. Roach to Newton P. Holden. Consideration, $5,500. Conveying the property in dispute in this case.

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

<p>Practice—Cause Remanded, by Supreme Court—Further Proceedings— Amendment to Bill—Tenant as New Party—Distinct Cause of Action.</p> <p>1. Where the Supreme Court has disposed of every question between the parties to the record which was presented thereby, and has remanded the cause for further proceedings, the Circuit Court has nothing to do but to enter the decree directed by the Supreme Court. It can not allow an amendment to the bill, which presents no new question as between the parties to the record.</p> <p>2. A complainant can not be compelled to add parties to his bill if he chooses to take the responsibility of their not being made parties.</p> <p>3. In the case, presented, it is held: That the decision of the Supreme Court having settled every question between the parties to the record, the complainant can not amend by making his tenant a party complainant, nor can he require the cross-complainant to make said tenant a party defendant to his cross-bill; and that the injury, if any, to the leasehold estate of the tenant, is distinct from that to the reversionary interest, and constitutes a distinct cause of action.</p>

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

John G-. Rogers, Judge, presiding. This was an action by appellee against the railroad corporation, appellant, to recover for a personal injury to the former, occurring November 29, 1882, in the City of Chicago, whereby he lost one of his arms.

<p>Husband and Wife—Real Property—Secret Trust—Equitable Estoppel —Evidence.</p> <p>Upon a bill filed by creditors of the estate of defendant's deceased wife to subject certain real estate, standing of record in his name, to the payment of their claims, it is held: That the complainants have failed to show that the property in question was purchased with the-wife’s money, or to make out an equitable estoppel; and that the evidence sustains the decree of the court below for the defendant.</p>

Johit P. Altgeld, Judge, presiding. This action was brought by appellee Cook against James JV1. and Frank Harvey, doing business as clothing merchants under the firm name of Harvey Brothers, to recover commissions upon 362 advertising contracts with the publishers of different newspapers procured by Cook as agent for Harvey Brothers for that special purpose. Before trial James M. Harvey died, and the suit was carried on against the other defendant as surviving partner.

Henry H. Shepard, Judge, presiding. This is error to the Superior Court upon a decretal order in a proceeding under the voluntary assignment act. , It appears that the firm of Ferris & Avery, doing business in Chicago as dealers in oils and paints, being in good financial credit, expecting to continue their business and having at that time no intention of making an assignment of their estate for the benefit of their creditors, borrowed, October 13, 1884, of the First…

<p>Bill for Accounting—Gross-Bill—Trust Funds.</p> <p>Upon a bill for an accounting, the adjustment of rights and claims and division of certain trust funds, the proceeds of the interest of the parties in a corporation of which they were the promoters, this court holds that the evidence sustains the decree of the court below,</p>

Bollin S. Williamson, Judge, presiding. This was an action by appellee against the insurance company, appellant, upon a policy of insurance issued January 4, 1885, whereby the latter agreed to insure the former for the period of one year against damages or loss by fire, in amount not exceeding $3,000, the policy covering the four-story brick cotton mill of the plaintiff, situated at Brighton Park, County of Cook, and State of Illinois, together with the machinery and…

<p>Practice in Justice Courts—Appeal—Affidavit—Affidavit of Claim—Time of Filing—Defau It.</p> <p>Sec. 34, Chap. 79, R. S., providing for the filing of an affidavit of plaintiff’s claim, does not authorize the Circuit Court to permit the filing of such an affidavit after an appeal taken from a Justice so as to confer upon the plaintiff the right to a default against the defendant and dismissal of his appeal for the mere want of an affidavit of merits.</p>

<p>Voluntary Assignments—Judgments by Confession—Whether a Valid Preference—When Such Preference is Given.</p> <p>1. Until lie has made up his mind to make an assignment, a debtor retains the dominion over his property and may sell, mortgage or pledge it, or create a lien upon it by confessing a judgment in favor of a bona fide creditor.</p> <p>2. A preference is given to a creditor, so far as the debtor is concerned, not by entry of the judgment but by the execution of the warrant of attorney. If that instrument is given at a time when the debtor may lawfully prefer a creditor, the preference is valid.</p> <p>3. Under the statute of this State the creditor will be protected if he in fact succeeds in perfecting his lien before the assignment becomes operative. Knowledge of the insolvency of his debtor, or of his intention to make an assignment, or of his being actually engaged in the execution of such instrument, can not deprive him of his preference, if he in fact succeeds in obtaining one.</p> <p>4. Mere non-action on the part of the debtor until the creditor has perfected his lien, does not make the procuring of such lien his act. The statute imposes upon him no duty of diligence to defeat the priority of creditors who hold valid warrants of attorney.</p> <p>5. Upon a petition to have certain executions against the property of an insolvent debtor vacated and to have said executions and the judgments on which they were issued declared to be a part of the general assignment, it is held: That there is no evidence of such active co-operation on the part of the debtors in the entry of the judgments by confession as to make them their acts; that the liens are therefore valid; and that they do not constitute an illegal preference within the meaning of the statute.</p>

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

Elliott Anthobt, Judge, presiding. The bill in this case alleges that, on the 27th day of December, 1886, Frank S. Weigley, the… Held: whei-e no court was in session, and before either of said suits was docketed or commenced in said court, and that said Judge indorsed on said several declarations and cognovits the words, “ Enter judgment, E. Anthony, Judge;” that afterward said declarations and cognovits were filed in the office of the clerk of said court, and that…

Clair County; the Hon. Amos Watts, Judge, presiding. The appellee filed his claim in the County Court against the estate of B. F. Switzer, deceased, in which he claimed to recover for one year’s salary as book-keeper at $900, less a credit of $311.25 admitted to have been paid. His claim being allowed, the administrator prayed and obtained an appeal to the Circuit Court, where, before the court and a jury, he was again defeated, and he brings the case to this court.

<p>In erboe to the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.</p>

Boer Phillips, Judge, presiding. Declaration in assumpsit by plaintiff in error, containing two counts: The first alleges that on the 6th of March, 1886, a written contract was entered into by the plaintiff, a legally qualified school teacher, and the defendants, at a special meeting of said defendants as the Board of Directors of said district, employing the plaintiff to teach the public school in said district for a term of three months, commencing April 1,1886, ■at $40…

<p>Municipal Corporations—Proceeds of Dram Shop Licenses—•Action by School - Trustees—Consent Judgment—Agent—Authority—Mandamus— Motion to Vacate Judgment and Order.</p> <p>In an action by school trustees against a municipal corporation to recover “ one-half of all money received into the city treasury from dram shop licenses,” as provided by the charter of the defendant, it is held: That the</p> <p>representative of the defendant was duly authorized to enter its appearance and consent to the rendition of the judgment in question and consent to the order for the tvrit of mandamus; that the court below properly overruled the motion to vacate said judgment and order; and that if, on the return of the writ, it appears that the City Council was ordered to do an impossible and illegal act, the court below will doubtless so modify its order as to protect the interests of both parties.</p>

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

George W. Wall, Judge, presiding. Bill in equity by plaintiff in error against the defendants in error in aid of execution in his favor, issued out of the Circuit Court of Bandolph County, October 2, 1884, upon transcript of Justice’s judgment recovered September 13th of the same year. Avers its return nulla bona and issue of alias execution which was still in the hands of the Sheriff at time of filing bill.

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

<p>Railroads—Action for Damages for Causing a Death—Incompetent Testimony—Ruling Out—Time of—Offer of Evidence after it has been held Incompetent by this Court—Instructions—Comparative Negligence— Fellow-Servants—Practice.</p> <p>In an action against a railroad company to recover damages for causing the death of the plaintiff's intestate, it is held-. That the defendant can not object to the admission of incompetent testimony called out by its own cross-examination of a witness for the plaintiff; that an objectionable answer could not have any greater weight with the jury because not ruled out unti. a later stage of the trial; that plaintiff’s counsel did not exceed the limits of strict professional conduct in again offering evidence deemed competent by him, although declared incompetent by this court on a former appeal; that it is not indispensable to a right of recovery that the question of comparative negligence be submitted to the jury"by the plaintiff; that in a proper case either party may ask the court to submit said question; that there was no error in giving and modifying instructions; that, if the defendant desired to raise the questions whether the plaintiff’s intestate and the servants of appellant were fellow-servants, and whether the deceased came to his death through one of the ordinary perils of his service, it should have submitted them to the jury by proper instructions; and that they can not ba raised here for the first time.</p>

George W. Wall, Judge, presiding. This was a hill in equity exhibited in the Circuit Court of Monroe County by defendants in error as partners, against the plaintiffs in error, to subject certain real estate in the name of Elizabeth Cramer to the lien of a judgment against her husband, the said Oscar. A decree pro confesso was entered and this writ of error is prosecuted to have it reviewed.

David J. Baker, Judge, presiding. In August, 1886, the appellant, by its agent at Benton, Illinois, issued to the appellee its policy of insurance upon his stock of goods in the sum of §1,450, and upon the store fixtures and furniture the sum of §50. On the night of November 8, 1886, the store was burned, together with its contents, and the appellant refusing to pay the loss, this action was brought to recover upon the policy.

<p>If error to the Circuit Court of Jasper County; the Hon. William C. Jobes, Judge, presiding.</p>

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

In ebbob to the Circuit Court of Saline County; the Hon. David J. Bakek, Judge, presiding. This was a proceeding below in chancery to subject certain real estate to the payment of judgments in favor of defendants in error against Calvin S. Blackman, one of plaintiffs in error, in which a decree was rendered as prayed and from which this writ of error was sued out. A reversal is here urged upon the ground that, under the facts proved, the bill should have been dismissed.

<p>Drainage—Sec. 11, Chap. 43, B. S.</p> <p>Under Sec. 17, Chap. 42, R. S., the jury may off-set benefits against damages for land taken for drainage purposes.</p>

Clair County; the Hon. William H. Snyder, Judge, pressing. This was a claim filed by the appellee in the County Court against the estate of Ira Manville, deceased, of which estate the appellant is the executor. The merits of the claim were contested in that court before a jury and a verdict was rendered for appellee, from which an appeal was prosecuted to the Circuit Court and, upon a trial in that court, the jury found the same way and the executor again appeals.

<p>Carriers—Loss of Goods—Action by Consignor—Parties—Liability of Carrier beyond its Line—Special Contract—Receipt—Question for Jury— Delivery to Connecting Line—Burden of Proof.</p> <p>1. A common carrier, receiving goods to carry, marked to a destination beyond its line, is bound, under an implied contract, to carry and deliver at the place marked. But this common law liability may be restricted by contract fairly made.</p> <p>2. It is a question for the jury whether the terms of a receipt or bill of lading limiting the carrier’s liability to its own line was fairly made, understood and assented to by the assignor.</p> <p>3- The consignor of goods intrusted to a common carrier may maintain an action for a failure to carry and safely deliver, the contract for transportation being with him.</p> <p>4. In the case presented, it is held: That the evidence proves ownership of the goods in question in the consignor; that upon its own construction of the contract, the burden of proof was upon the defendant to show a safe carriage to the terminus of its line, and a delivery to a connecting line; and that the evidence fails to show such delivery.</p>

George W. Wall, Judge, presiding. This action was brought against appellant to recover the penalty provided for by the statute for its alleged failure to give the statutory signals at a public highway crossing. A trial was had before the court and a jury, a penalty imposed upon a verdict finding appellant guilty, and appeal to this court.

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

<p>Practice—Failure to Assign Errors on Record—Bill of Exceptions— In ormation—Affidavit.</p> <p>1. Where no errors are assigned upon the record this court may decline to consider the case.</p> <p>2. The instructions and a motion for a new trial are no part of the record unless incorporated in the bill of exceptions.</p> <p>3.. An information charging the defendant with unlawfully selling intoxicating liquors requires no affidavit.</p>

Clair County; the Hon. B. H. Caney, Judge, presiding. The appellee was the owner of a small flat-boat, and while it was floating down the Mississippi liiver it was struck by a steam ferry-boat belonging to the appellant, and the appellee, who was engaged in operating his flat-boat, was caught between the two boats and received serious injuries, and he brought this action in case in the St. Clair Circuit Court to recover damages therefor.

<p>Appeal from the County Court of Pope County; the Hon. George A. Crow, Judge, presiding.</p>

James I. Stillman, Judge, presiding. Complaint being made before a Justice of the Peace, charging Heatherly with the offense of assault and battery, he was arrested and upon trial was fined by the Justice $10 and costs; from which fine he appealed to the County Court.

<p>Appeal from the County Court of ¡Randolph County; the Hon. Wabben ÜST. Wilson, Judge, presiding.</p>

<p>Carriers of Cars—Extent of Liability—Delivery to Consignee—Loss— Declaration—Sufficiency of—Evidence, Prima Facie, of Existence of Consolidated Corporation.</p> <p>1. Everything is negligence in a carrier that the law does not excuse. A general allegation of negligence is, therefore, sufficient to sustain a recovery.</p> <p>2. A copy of the articles of consolidation between two or more corporations duly certified under the seal of the Secretary of State, is prima facie evidence of the existence of the consolidated corporation.</p> <p>8. Where a common carrier of cars receives loaded cars to be delivered to the consignee and returned when unloaded, its liability as a common carrier continues until their safe return.</p>

<p>Malicious Prosecution—Want of Probable Cause—Burden of Proof— Evidence—Malice—Advice of Counsel.</p> <p>1. In an action for malicious prosecuf ion the burden of proof to show want of probable cause is on the plaintiff, and he must make such proof clear and satisfactory.</p> <p>2. To determine whether there is probable cause for instituting a criminal prosecution, the prosecutor is not required to verify each item of information. It is sufficient if he acts with reasonable prudence and caution.</p> <p>3. Malice may be inferred from want of probable cause, but such an inference is not always warranted.</p> <p>4. In the case presented, it is held: That the evidence fails to show want of probable cause; that the question of probable cause is not one of actual guilt, but of honest and reasonable belief of the party prosecuting; and that the evidence did not warrant the jury in finding malice.</p>

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

William C. Jones, Judge, presiding. On the 23d day of October, 1874, Samuel ¡R, Sandefnr and his wife, Emily, executed their promissory note to Yalentine Krauss, for the sum of §300, payable in one year from date with interest at the rate of ten per cent., payable annually.

<p>Mistake in Levy of Attachment, Special Execution and Certificate of Purchase—Bill to Correct—Subsequent Purchaser—Trust Fund with which to Redeem—Demurrer.</p> <p>Upon a bill to correct a mistake in the levy of a writ of attachment, in a special execution and in a certificate of purchase, so as to include all of certain lots intended, to be included, or to require a subsequent purchaser to pay over a part of the purchase money left with him for the redemption from the sale, it is held: That the court below improperly sustained a general demurrer; that the complainant was at least entitled to the alternative relief prayed; that said subsequent, purchaser holds the money so left in his hands as trustee for the complainant; and that he can claim no exemption in the execution of his trust by reason of his own violation of duly in failing to apply said fund while the right to redeem existed.</p>

<p>Appeal from the Circuit Court of Saline County; the Hon. David J. Baker, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of St. Clair County; the lion. William H. Snyder, Judge, presiding.</p>

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

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

William C. Jones, Judge, presiding. - This action was brought by the plaintiff in error to recover damages for personal injuries, received by him while in the employ of the railway company.

<p>Practice—Motion to Dismiss Appeal—Reneival of—Adjournment of Court Below—Time of—Evidence.</p> <p>1. Where a motion to dismiss the appeal has been overruled it can not afterward be renewed.</p> <p>2. Upon a motion to dismiss the appeal on the ground that the transcript of the record was not filed in time in this court, the date of adjournment of the Circuit Court can not be shown by affidavit or certificate of the clerk of that court. The day of such adjournment can only be shown by an authenticated copy of the order of adjournment.</p>

<p>Negotiable Instruments—Action on Note—Extension—Payment—Surety Released.</p> <p>In an action on a promissory note brought by a bank against the maker and surety, it is held: That the evidence sustains the plea of the surety, alleging an extension of the note by the cashier of the plaintiff without his consent; that the erasure of an indorsement and the failure of the plaintiff to produce its books on notice, required more satisfactory explanation than was given; that a payment of interest to its cashier, although in board, was, under the evidence, a payment to the plaintiff; and that the instructions, although not strictly accurate, cotild not have misled the jury.</p>

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

T. H. Shaw, Judge, presiding. Prior to December 20, 1883, G. W. H. Gilbert was a merchant, dealing in Peoria, Illinois, in hats, caps, “ buck goods,” furs and fur goods, having a stock of goods the cash value of which was $10,450.04, incumbered by indebtedness to the amount of $4,950.04 for the purchase price of the goods, leaving the value of the stock after paying the indebtedness $5,500; and desiring to take a partner into the business he entered into a limited…

<p>Negotiable Paper—Note—Collateral Agreement—Dependent Covenants— Notice to Assignee—Failure of Consideration—Pleas—Demurrer.</p> <p>1. In an action upon a promissory note, a plea to the effect that the note was given for seed-oats, in connection with an agreement that it was not to be paid until the crop matured and the payee had sold a certain quantity of the oats raised, at a stipulated price; that the plaintiff, as assignee, had notice of such agreement, and that such sale has not been made, constitutes a good defense.</p> <p>2. In the case presented, it is held: That the promise, by the payee, to sell the oats raised, and of the maker to pay the note, are dependent covenants; that the payment of the note depends upon the sale accorcling'to agreement; and that certain pleas were defective.</p>

S. S. Page, Judge, presiding. The appellant was duly organized under an act of the Legislature of the State of Illinois, entitled “An Act for the Organization and Management of Corporations, etc., for Indemnity to Members thereof.” Approved June 18, 1883. The organization of the appellant took place April 29, 1884.

<p>Personal Injtiries—Action by Employe for Damages—Conflict of Evidence—Instructions—Defective Declaration—Arrest of Judgment.</p> <p>1. The court may properly refuse to give an instruction which states an abstract proposition of law.</p> <p>2. Where the declaration states a cause of action, though ambiguously and improperly, a general verdict will cure the defect therein.</p> <p>3. In an action by an employe against his employer to recover damages for a personal injury, it is held: That the questions of fact involved must be considered as settled in favor of the plaintiff by the verdict of the jury, the evidence being conflicting; that there was no error in giving and refusing instructions; and that there was no manifest error in overruling the motion in arrest of judgment.</p>

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

<p>Bond, of School Treasurer—Action against Sureties—Receipt—Application of Payments—Commissions.</p> <p>1.. In an action against the sureties on a school treasurer’s bond, it is held: That certain amounts objected to were properly included in the judgment; that the date of a certain receipt is not conclusive as to the time of payment; and that the liability of the principal was established by his receipt to the former treasurer.</p> <p>2. Where a creditor makes no application of a payment, part of his indebtedness being secured and part unsecured, such payment may be applied to an unsecured indebtedness at the option of the creditor, or by implication of law.</p>

<p>Negotiable Instruments—Action on Promissory Note—Forgery—Practice—Evidence—Expert Witnesses—Comparison of Signatures—Instructions.</p> <p>1. In an action on a promissory note, the defense being that the note was forged by the plaintiff, it is held: That, in view of the special circumstances presented, the court should have allowed great latitude in the cross-examination of the plaintiff as a witness; that it was proper to ask her how often she had written the defendant's name, and whether she had offered to sell the note at a large discount; that evidence tending to impeach the consideration, although not admissible for that purpose under the pleadings, was admissible as tending to show that the defendant did not execute the note; that it was error to allow expert witnesses to compare the signature to the note with certain other signatures of the defendant, and then state their opinions as to the identity of the handwriting; and that there was no error in giving and refusing instructions.</p> <p>2. Where proffered testimony tends to prove any of the issues on trial, it should not be excluded, even though it tends to establish a defense not interposed.</p> <p>3. The genuineness of a signature can not be proved or disproved on the trial of a cause by comparing it with other signatures admitted to be genuine.</p> <p>4. The trial court may properly refuse to give an instruction which is argumentative, and the substance of which is given in another instruction.</p>

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

<p>In error to the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding.</p>

<p>Appeal from the County Court of Kankakee County; the Hon. Thomas S. Sawyeb, Judge, presiding.</p> <p>Compare the following case of Birr v. People.</p>

<p>Sale of Liquors to Habitual Drunkard—Indictment—Instructions.</p> <p>1. In a prosecution for malting sales of intoxicating liquors to a person in the habit of getting intoxicated, it is error to instruct the jury that a man who gets intoxicated from three to five times in two years is a person who is in the habit of getting intoxicated.</p> <p>2. There is no rule of law fixing the number of times a person must become intoxicated within a stated period in order to constitute him “ a person in the habit of getting intoxicated.’' It must be shown that he has been frequently intoxicated, and has thereby acquired an involuntary tendency to become so, and that, at the time of the sale complained of, he is in the habit of getting intoxicated.</p>

<p>Lis Pendens—Privity hetween Plaintiff and Defendant in Execution— Action against Sheriff.</p> <p>1. The plaintiff and defendant in an execution issued, pending a trial of the right of property between the latter as claimant and the judgment creditors of a third person, in goods levied on as the property of such third person, are in such privity of relation that both will be alike bound by a judgment finding the rights of property against the claimant.</p> <p>2. An action does not lie against the Sheriff for failure to levy an exeeution issued pending the trial of the right of property under the former levy-on the property as that of a third person.</p>

T. M. Shaw, Judge, presiding. The appellant was the owner of block 1 in Armstrong’s Addition to Peoria, which he divided into four lots and at and before the time of the alleged injury to the same by the means hereafter mentioned, owned and occupied the same. He had built a residence on lot 4 (the northeast quarter of the block), costing some §15,000.

<p>Appeal from the Circuit Court of Woodford County; the Hon. H. W. Green, Judge, presiding.</p>

<p>Replevin—Chattel Mortgage—Fraudulent Intent—Evidence—Instructions.</p> <p>In an action of replevin to recover the possession of a piano held by the defendant under an execution against a third person, it is held: That evidence touching the validity of a certain chattel mortgage on the piano was properly excluded, the genuineness of said mortgage not being in issue; that the verdict is not so manifestly against the weight of evidence as to require a reversal; and that there was no error in the instructions.</p>

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

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

<p>In error to the Circuit Court of Kane County; the Hon. C. W. Upton, Judge, presiding.</p>

<p>Husband and Wife—Family Expenses ”—Sec. 15, Ch. 68, R. S.</p> <p>’ A light farm wagon is not a family expense within the meaning of Sec. 15, Chap. 68, R. S.</p>

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

<p>Divorce—Alimony Pendente Lite—Alloivance of Gross Sum—Solicitor's Fees—Discretion—Desertion.</p> <p>1. The exercise of the power to make allowances to the wife, pending a bill for divorce, for the support, during the litigation, of herself and the children in her custody and care, and for the payment of her solicitor’s fees and other expenses of suit, is within the judicial discretion of the court wherein such bill is pending. In such cases this court will not interfere, unless there has been an abuse of discretion.</p> <p>2. The power to require the husband to pay alimony pendente lite is not affected by the statutory right of the wife to control her separate property and to enjoy her own earnings.</p> <p>3. The allowance of alimony pendente lite does not depend upon the wife’s absolute right, to a divorce. She is only required to show probable ground for a divorce. The court will not, upon a preliminary motion and upon ex parte and contradictory affidavits, undertake to determine the issues presented by the pleadings.</p> <p>4. Under some circumstances, a gross sum for temporary alimony and support may be allowed.</p>

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

<p>Railroads—Action for Damages for Causing Death of Employe—Negligence of Conductor—Liability of Defendant—Instructions—Fellotv-Servants.</p> <p>1. ' Where an employe who has control over other servants of the same master, with power to hire and discharge them, gives a negligent order to one of such servants, who, in obeying, causes injury to another of them, the master is liable for the damages.</p> <p>2. An instruction which is not based on the evidence or which raises an irrelevant issue, should not be given.</p> <p>3. In an action against a railroad company to recover damages for causing the death of an employe while engaged on a gravel train, it is held: That the negligence of the conductor is sufficiently stated in the declaration, it being sufficient to aver negligence in general terms; that the evidence sustains the charge of negligence contained in the declaration; that the evidence does not show negligence on the part of the engineer; that there was no error in modifying certain of the defendant’s instructions; and that the allowance of $2,150 as damages was not excessive.</p>

<p>Set-Off—Mutual Judgments—Claim of Attorney for Fees and Disbursements—Fifth Exception, Sec. 60, Chap. 77, JR. S.</p> <p>The fifth exception, specified in Sec. 60, Chap. 77, R. S., allowing an attorney’s claim for fees for services rendered and disbursements in procuring a judgment, priority over the set-off of a judgment in favor of the judgment debtor against his client, is general, and not limited in its application to fees and disbursements for which he has a lien at law or in equity.</p>

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

<p>Railroads—Ticlcefs—Failure to Procure—Extra Fare—Instructions— Duplicates—Remote Damages.</p> <p>1. Railroad companies are required' to keep their offices open for the sale of tickets to passengers for a reasonable time before the departure of each train and up to the published time for its departure, but not up to the time of actual departure.</p> <p>2. If convenient and reasonable opportunity to purchase tickets is afforded the public, extra fare may be charged such as do not avail themselves thereof. A passenger refusing to pay the extra fare under such circumstances may be ejected from the train.</p> <p>8. A demand for fare by the conductor of a passenger train must be obeyed or the passenger mud, at the conductor’s request, leave the train in a peaceable mapner. If he refuses so to do, he can not recover damages for the use of necessary force in ejecting him from the train, unless the expulsion was malicious or wanton.</p> <p>4. In the case presented, it is held: That certain instructions given for the plaintiff were improper; that the instruction touching the assessment of punitive damages was erroneous because not- based on the evidence; that an instruction to the effect that the plaintiff might recover for the feelings of shame and humiliation which he endured in consequence of being put off and expelled from a public conveyance, was erroneous; that the court erred in refusing certain instructions; that the plaintiff was not entitled to recover the remote damages caused by his walk of several miles to another station, when he might have returned a short distance to the station from whence he started; and that it does not appear that the conduct of the conductor was wanton or malicious.</p> <p>5. It is proper to refuse an instruction which is substantially identical with another which is given.</p>

<p>Railroads—Personal Injury—Evidence.</p> <p>In an action against a railroad company to recover for injuries alleged to have been caused by the negligence of a conductor in assisting the plaintiff to alight from a train, it is held: That the evidence does not sustain the verdict for the plaintiff; and that evidence of the value of services of her daughters, who made no charge for such services, was improperly admitted.</p>

<p>Negotiable Instruments—Delivery of Note—Chattel Mortgage Sale.</p> <p>1. A delivery to the payee, actual or constructive, is essential to the validity of a promissory note.</p> <p>2. A person receiving a promissory note not payable to himself, without indorsement, takes it subject to all legal and equitable defenses.</p> <p>3. In an action on a note alleged to have been taken for personal property sold at a chattel mortgage sale by an agent, it is held: That the evidence almost conclusively shows a want of delivery; and that the court below erred in giving and refusing instructions.</p>

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

<p>Usury—Interest on Interest.</p> <p>Upon the renewal of a note the parties may contract to give and receive interest on yearly interest already due without rendering the transaction usurious.</p>

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

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

<p>Administration—Settlement—Bill to Impeach Final Account—Burden of Proof—Ecidence.</p> <p>After the settlement of an estate the correctness of the administrator’s final account is presumed. Where a bill is filed to impeach such an account the burden of proof is upon the complainant.</p>

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

Alfred Sample, Judge, presiding. This was a bill filed by the appellee against the appellants to cancel a deed executed by Wilkinson to Sanford, to the southwest quarter of the southwest quarter of section 7, town 27 north, range 11 west, Iroquois County, and to be permitted to redeem from a mortgage of said premises, executed by Morris Kane and the appellee to Sanford, on the 20th of July, 1875.

Dorrenoe Dibell, Judge, presiding. On December '20, 1858, Michael Finlon and wife (from whom both appellant and appellee claim title) executed and delivered to the appellee, Clark, a warranty deed for the FT. £ of the S. E. £ and the FT. E. £ of Sec. 1, T. 37, B. 10,' Will County, Illinois, for the expressed consideration of $772. Said deed contained an error in description. The parties to it intending that the FT. £ of the W. £ of the S. E. £ of Sec. 1, and the FT.

<p>Landlord and Tenant—Tenants in Common—Sent—Implied Contract— Notice—Evidence—Error without Prejudice.</p> <p>1. The mere occupancy of the entire property by one of two tenants in common does not render him liable to account to his co-tenant for rent.</p> <p>2. The relation of landlord and tenant is not as readily inferred between co-tenants as between strangers, and whether such relation exists is a question of fact for the jury.</p> <p>3. A promise by a co-tenant, occupying the entire property, to pay rent, may be implied.</p> <p>4. Where one occupies the premises of another after receiving notice that he will be required to pay rent, he will be bound to pay such rent.</p> <p>5. An error in the admission of evidence, which could not have injured the appellant, is not a sufficient ground for a reversal of the judgment.</p>

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

<p>Trespass for Assault and Battery—Damages— Whether Excessive—Instructions.</p> <p>In an action of trespass for assault and battery 'this court finds no error in the instructions, and declines to interfere with a verdict for $1,000 as excessive, the question involved, in view of the conflict of evidence, being for the jury.</p>

William Marsh, Judge, presiding. On the 10th day of March, 1884, appellants filed their bill in the Circuit Court, therein alleging that on the 28th of December, 1866, Samuel Comer, since that time deceased, had on deposit for safe keeping in the hands of George C. Anderson & Co., bankers, of Keokuk, 7-80 United States bonds to the amount and value of §6,000.

<p>Contractors—Action for Labor and Material—Conflict of Evidence— Question for Jury—-Instructions—Trial—-Witnesses—Discretion—Misconduct of Juror.</p> <p>1. Where the questions involved are mainly of fact and the evidence is conflicting, this court will not interfere unless some substantial error has intervened.</p> <p>2. In an action of assumpsit for labor and materials by a contractor who had been displaced by the defendants before the completion of their build-in", it is held: That there was no error in allowing the plaintiff to refer to a memorandum of items and charges taken from his books; that the court properly refused to allow the cross-examination of a certain witness to extend to a matter not covered by the examination in chief; that an objection calling for an expression of opinion by another witness was properly sustained; that there was no abuse of discretion by the court in refusing the application to recall a witness, after a day or more, to make an additional statement in regard to a matter about which he was interrogated but could give no definite reply when first examined; that there was no error in giving and refusing instructions; and that the charge of misconduct of a jurrr is not sustained.</p>

William Marsh, Judge, presiding. The declaration filed in this cause contains two counts.

<p>Municipal Corporations—Contract with Gas Company—Construction of —Exclusive Privileges.</p> <p>1. Under an ordinance providing that a gas company shall furnish the city with gas “ of a quality at least equal to and at rates as favorable as that furnished” by a gas company in a neighboring city, the rates charged can not at any time exceed those then charged by the latter company.</p> <p>2. In an action by a gas company to recover the contract price of gas furnished to a municipal corporation, the question whether the plaintiff is entitled to exclusive privileges, under an ordinance purporting to grant such privileges, does not arise.</p>

<p>Fraudulent Divorce—Bill of Review—Laches—Delay of Fourteen Tears —Sec..19, Chap. 22, R. S.—Domicile of Wife—Removal of Causes—Additional Abstract—Costs.</p> <p>1. Where the proof of fraud is clear and cogent, and convincing reasons are given for the delay, mere lapse of time does not bar a bill of review to impeach a former decree for fraud.</p> <p>2. A decree may be attacked for fraud in its procurement after the three years, limited in Sec. 19, Chap. 22, R. S., and after the five years allowed for suing out a writ of error, if sufficient reasons are given for the delay.</p> <p>3. A decree of divorce procured through fraud, by one who has since remarried and has had children by such subsequent marriage, may be set aside upon a bill of review filed after a delay of fourteen years, if clear and convincing reasons appear for the delay.</p> <p>4. A bill of review filed in the Circuit Court to annul a former decree, granting a divorce by that court for fraud, is not removable to the Circuit Court of the United States, although the defendant resides in another State.</p> <p>5. Where it is necessary for the appellee to file an additional abstract' in this court and the decree is affirmed, the costs thereof will be taxed against the appellant.</p>

<p>Bridges—County Aid—Mandamus—Scope of Inquiry—Joint Petition by Two Towns—Sec. 19, Chap. 121, 5. S.—“Labor System.”</p> <p>1. Upon a petition for mandamus to require the Board of Supervisors to appropriate half the cost of a bridge, the inquiry is not confined to the case made before the Board.</p> <p>2. Two towns may jointly petition for county aid under Sec. 19, Chap. 121, R. S.</p> <p>3. Towns which have adopted the “ labor system,” as to road taxes, may claim county aid under the statute, the levy contemplated by section 19 not being confined to a money levy.</p>

<p>Railroads—Rate of Speed—City Ordinance—Sec. 87, Chap. 114, R. S.— Action for Penalty—Right to Recover—Practice.</p> <p>In an action against a railroad company to recover the statutory penalty for running a train through a city faster than prescribed by the city ordinance, it is held: That it is immaterial whether a signal was given as the train approached a certain crossing; that one who can show that his injury is the proximate result of the unlawful rate of speed, whether he came in contact with the train or not, is a “ person aggrieved ” within the meaning of Sec. 87, Chap. 114, R. S.; that he may recover the penalty regardless of his right to maintain an action for damages; and that an objection to the ordinance should have been specifically stated when it was offered in evidence.</p>

<p>Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding. '</p>

<p>Trust Deed—Partition—Sale of Portion of Premises—Bill for Contribution.</p> <p>Upon a bill filed by the owner of a portion of a tract of land subject to a trust deed, securing a note, a balance on which he had been required to nay, against the owners of other portions for contribution, it is held: That the iien of the trust deed was not affected by certain partition proceedings, wherein a certain part of the premises was set apart on account of the debt secured by the trust deed; that the acceptance by the holder of the note of the proceeds of the part so set apart did not extinguish the trust deed; that the sale by the trustee of the complainant’s portion of the premises was legal; and that he thereby became entitled to contribution from certain of the defendants.</p>

<p>Sales—Rescission—Fraud—Replevin to Reclaim Goods from Third Party—■Evidence—Depositions in other Stilts—Report to Mercantile Agency—Preconceived Intention not to Pay—Knowledge by Defendant— Father and Son.</p> <p>1. In an action of replevin to reclaim goods sold to the defendant by his son, who, it is claimed, had purchased them of the plaintiffs, “ with the preconceived intention not to pay,” and of which intention the defendant is alleged to have had knowledge, it is held: That certain-depositions, taken in cases in which the defendant was not a party, to prove fraudulent represituations by the son to third persons, were improperly admitted by the court below; that the report of the son’s financial condition, made by an agent to a mercantile agency, was also improperly admitted; that the evidence does not support the finding that the defendant, when he purchased, knew that his son purchased the goods in question with a preconceived intention not to pay for them; and that their relations as father and son and creditor and debtor, and certain other circumstances relied on, are insufficient to charge the defendant with knowledge of any fraudulent intention on the part of his son.</p> <p>2. Fraud must be established by evidence so clear and cogent that it leaves the mind well satisfied that the charge is true.</p>

In connection with this case see the related case of Brown v. Bierman, ante, p 574. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.

<p>Appeal from the' Circuit Court- of Fulton County; the lion. John C. Bagby, Judge, presiding.</p>

<p>Municipal Corporations—Stock Running at Large, a Nuisance—Power of City of Quincy to Declare—Fines—Statutes—Repeal by Implication— Ordinance.</p> <p>1. An ordinance of the City of Quincy, declaring the running at large of cattle, horses, mules, goats and sheep within its corporate limits a nuisance, and imposing a fine upon the owner for each violation thereof, is authorized by its charter.</p> <p>2. This power is not affected' by Chap. 8, R. S., entitled “Animals,” although a vote taken under the statute in the county in which Quincy is situated, resulted in favor of stock running at large.</p> <p>3. When a municipal corporation is authorized to impose a fine and no limit is fixed, the fine imposed may exceed that imposed by the State for the same offense,</p> <p>4. The repeal of a statute by implication is not favored and will not be easily presumed.</p>

<p>Negotiable Instruments—Note—Genuineness of Signature—Witnesses— Competency of.</p> <p>1. In an action on a promissory note, where the signature is disputed by the defendant, a witness who has never seen the defendant write, but has merely examined certain signatures admitted to be genuine, is incompetent to testify as to the genuineness of the signature in question.</p> <p>2. Where a witness had no acquaintance with the handwriting of a party until a particular signature, purporting to be his, was disputed, the subsequent examination, by him, of the signature to an answer in chancery and to certain other papers that he heard the party state under oath were signed by him, did not render him competent to testify as to the genuineness of the disputed signature.</p>

<p>Commission Merchants—Local Usage and Custom—Consignment of Unsound Flour—Advances—Suit to Recover Difference.</p> <p>1. Where produce is shipped to commission merchants to he sold in their market, there is an implied understanding that the business shall be done according to the local usage and custom.</p> <p>2. A commission merchant, who has made advances on flour consigned to him on the presumption that it was sound, may protect himself by selling it at the best advantage when it has been found to be unsound, if the consignor fails to secure him against loss. He may also recover from the consignor the difference between the amount realized and the amount advanced by him.</p>

<p>In error to the Circuit Court of Cass County; the Hon. Cyrus Epler, Judge, presiding.</p>

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

<p>Dram Shops—Suit under Sec. 9, Ch. 43, B. S.—Parties—Amendment after Verdict—Evidence—Sufficiency of—Discretion.</p> <p>1. In suits underSec. 9 of the Dram Shop Act the plaintiff may proceed against any and all persons jointly or severally who may have caused the intoxication in whole or in part, without reference to whether they have equally contributed to the injuries complained of. They stand upon the same footing as persons engaged in a joint tort, each being liable for the entire damage.</p> <p>2. Upon a motion for a new trial in such an action the court may enter judgment against one defendant after permitting the plaintiff to dismiss as to another.</p>

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

<p>Quo Warranto—Discretion—Village Trustees—Qualifications—Taxes— Arrears—Paragraphs 34 and 192, Chap. 24, Starr <& C. III. Stat.</p> <p>1 It seems that the provisions of paragraph 34, Chap. 24, Starr & C. 111. Stat., touching the qualifications of Aldermen, are not made applicable to Village Trustees by paragraph 192-of said chapter.</p> <p>2. Upon a proceeding by information in the nature of a quo warranto to test the right of the defendants to hold the office of Village Trustees, it is held: That disqualification arising from being in arrears in the payment of taxes as provided in said paragraph 34, if applicable, applies to the office and not to the election; that payment of the tax by one of the defendants, before assuming the office, removed the objection; and that the other defendant was not in arrears within the meaning of the statute, his arrears being caused by the fault of the collector of taxes.</p> <p>3. In a proceeding by quo warranto, the issue of a writ does not end the discretion of the court. Where the writ has been improvidentlv issued the court may decline to proceed or to grant the relief sought.</p>

<p>Drainage—Power of Commissioners to Change District Boundaries—Petition—Additional Signattires—Final Order—Defect—Act of 1885—Retro-spective Effect of— Trespass—De Facto Officers—Contractors—Damages— Presumption—Res A djudicata.</p> <p>1. It is within the power of the commissioners to change the boundaries of a drainage district so as to exclude lands already included or to include additional lands. They may also permit additional signatures to the petition.</p> <p>2. In an action of Trespass against certain drainage commissioners and contractors, it is held: That a defect in the final order organizing the district was cured by the Act of 1885; that the commissioners were such de facto officers as to afford protection to the contractors and their employes; that it must be presumed that the plaintiff’s entire damages, “consequent upon the construction of the proposed work,” were considered by the jury in the condemnation proceedings; and that the verdict for the plaintiff is against the law and evidence.</p> <p>S. Where a proceeding under a statute is defective in some particular which the Legislature might have dispensed with, it may be dispensed with by a subsequent act operating retrospectively.</p>

<p>Railroads—Injury to Animal, Unlawfully at Large—Liability.</p> <p>A railroad company is liable for killing an animal, although it was unlawfully at large and upon the defendant’s track, if by the exercise of proper care and prudence, after the discovery of the animal, its engineer might have prevented the injury.</p>

<p>Municipal Corporations—Platting of Town—Alleys—Encroachment— Ordinance—Fine—Notice—Ejectment.</p> <p>1. In the absence of an adverse possession, the mere platting of a town gives the public the right to the use of the streets and alleys.</p> <p>2. Upon appeal from a judgment imposing a fine for a violation of a village ordinance, in relation to obstructions in its streets and alleys, it is held. That the village need not resort to an action in ejectment, and that the written notice given was sufficient.</p>

<p>Appeal from the Circuit Court of Cass County; the Hon. George W„ Hehdmah, Judge, presiding.</p>

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

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

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

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

<p>Wills—Life Interest in Lands—Execution against Devisee—See. 3, Chap. 77, B. S.</p> <p>1. Real property devised to a daughter, “to hold as long as she lives, without the privilege of selling it to any person, and at her death * * to go to her children, if any,” is not subject to sale on execution against her.</p> <p>2. Sec. 3, Chap. 77, R. S., authorizes the sale under execution of only such interests as may be disposed of by the debtor himself.</p>

<p>Railroads—Escape of Eire from Locomotives—Precautions Required— Rule—Instructions.</p> <p>1. It is the duty of railroads to use every possible precaution to prevent loss to others through the escape of fire or sparks from their engines, by the highest degree of diligence in ascertaining and adopting the best or most approved mechanical inventions and appliances to prevent the escape of fire.</p> <p>2. In an action against a railroad company to recover damages for the alleged burning of a building by sparks emitted from the defendant’s locomotive, it is improper to instruct the jury that it was the duty of the defendant to use “ all the best and most approved mechanical inventions ” to prevent loss from the escape of fire or sparks from its locomotives.</p>

<p>Municipal Corporations—Nuisances—Ordinance—Soap Factory—Fine —Instruction—Conflict of Evidence—Question for Jury—Trial—Discretion.</p> <p>1. Where the evidence is conflicting and the jury do not appear to have been influenced by prejudice or passion, the court will not interfere with the verdict.</p> <p>2. In an action under a city ordinance to have a fine imposed on the defendant for conducting a soap factory and tallow chimdlery in such a manner as to be foul and offensive, it is proper to instruct the jury that the defendant has no right to carry on such a business in a populous city unless it can be done without emitting offensive and noxious odors so as to be detrimental and offensive to the people of its locality.</p> <p>3. A trial court may, in its discretion, require a case to be closed within a particular time.</p>

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

<p>In error to the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.</p>