Volume 25 — Illinois Appellate Court Reports

<p>Railroads—Action for Damages for Causing Death—Fellow-Servants— Evidence—Question for Jart/—Instructions—Excessive Number—Discretion—Damages—Whether Excessive.</p> <p>1. In an action against a railroad company fo'-recover damages for causing the death of the plaintiff’s intestate, .the question whether at the time of the injury the deceased and the train men were so co-operating in a particular business for a common master as to bring them within the rule governing fellow-servants, is one of fact to be found by the jury under proper instructions.</p> <p>2. In the case presented, it is held: That the evidence was such as to require that the instructions should clearly and fairly state the rule of law to he applied; that one of the instructions, in effect, took the question of fellow-servants from the jury; that there was no abuse of discretion in the refusal of the court to pass upon an excessive number of instructions asked; that objections to certain questions put to jurors, touching their inclination if the evidence should be equally balanced, were properly sustained; and that objections to the admission of certain testimony and that the allowance of $2,500 was excessive, are not well taken.</p> <p>3. The trial court may, in its discretion, place a limit upon the number of instructions it will consider.</p>

<p>Paupers—Medical Services—Emergency—Action against County—Recovery—Costs, j</p> <p>1. Where a physician has rendered necessary services, in an emergency, to a minor whose mother is dead and whose father is idle and worthless and does not provide for his children, he may, in the first instance, maintain an action against the county for such part of his bill as the county is liable to pay, although be has property sufficient to pay part of the bill.</p> <p>2. When a county is sued as de'enclant it is within the terms of Sec. 7, Chap. 33, R. S., and judgment may be rendered against it for costs.</p>

<p>Partnership)—Issue as to Existence of—Evidence—Practice.</p> <p>1. Where the question at issue is whether several persons are partners) the declarations or admissions of one of them in reference to the existence of the partnership, are inadmissible as against the others.</p> <p>2. The appellant can not complain that evidence offered hy himself and in his interest was improperly admitted.</p>

<p>Schools—Formation of New District—Act of June 18, 1883—Petition to Trustees—Sufficiency of—Affidavit—Mandamus.</p> <p>In a proceeding by mandamus to compel certain Trustees of Schools to concur with others in the formation of a new school district, it is held,: That the petition to the trustees was sufficient; that it was unnecessary to set out the boundaries of the old districts; that it is immaterial that an affidavit, not required by law, failed to state all that is required to warrant the formation of a new district; and that the Trustees were bound to grant the petition if the proper conditions existed.</p>

Agreed case certified from the Circuit Court of Adams County; the Hon. William Harsh, Judge, presiding. This is an agreed case certified from the Circuit Court of Adams County, arising on a motion of the State’s Attorney of Adams County, and cross-motion by the Board of Pharmacy, for a rule on the cleric of the Adams Circuit Court to pay over the penalty collected by him in the above entitled cause against John N. Nedrow. STATEMENT OF FACTS.

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

<p>Railroads—Sfoch—Action to Recover Damages for Killing—Conflict of Evidence—Attorney Fees.</p> <p>1. In an action against a railroad company to recover damages for cattle killed by a train of cars at or near a highway crossing, this court declines to interfere with the verdict, the evidence as to whether the cattle were on the crossing being conflicting.</p> <p>2. In such a case this court has no basis on which to make an order for an allowance of attorney fees to the appellee for services on appeal. He must, therefore, seek his remedy in a court of original jurisdiction.</p>

J. F. Hughes, Judge, presiding. This was a bill filed in the court below by the plaintiff in error to remove a cloud from the title to lands purchased by him from Frederick Aholtz, by reason of several judgments for costs against said Aholtz and one against Leah Aholtz, upon all of which, some nineteen in number, executions had been issued upon each judgment and placed in the hands of defendant Foster, as Sheriff of Macon County, and by him levied on the property described…

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

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

<p>Official Bond—Sureties—•Extent of Liability—County Clerk—Action on Bond.</p> <p>1. The contract of a surety is to be construed strictly, and he is not to be held responsible beyond the precise terms of his undertaking.</p> <p>2. Where the contract relates to the acts and conduct of one holding an official position, the violation of the condition must occur during his term of office. The surety is then only liable for official acts done or omitted. The default complained of must be in respect to the manner of his performance of the duties required of him by law in his official capacity and must be the efficient cause of the loss.</p> <p>3. Where a County Clerk, during his term, has improperly made a certificate or statement of what is matter of official record, and, after his term expired, presented it to the County Board and secured an allowance thereon not warranted by law, there is no such breach of the condition of his bond as to justify a recovery against the sureties.</p>

<p>Trust Deeds—When Trustee M¡ust Release—Bonds.</p> <p>The trustee is bound to release a trust deed given to secure bonds issued by the grantor, when every person interested in both the debt and the property incumbered request such release, such request being indorsed on each bond, although the bonds are not canceled.</p>

<p>Municipal Corporations—Extent of Powers—Officers — Policemen— Tenure—Wrongful Discharge—Remedies—Other Employment■—Burden of Proof—Charter and Ordinances of Jacksonville—Instructions.</p> <p>1. A municipal corporation can exercise such powers only as are expressly granted or fairly implied in, or incident to those expressly granted, or essential to the declared objects and purposes of the corporation.</p> <p>2. Where the charter of a municipal corporation establishes the terms of its officers, such tenure can not be changed by ordinance.</p> <p>3. The word “ officers,” as used in the charter of the City of Jacksonville, includes policemen.</p> <p>4. The City Council of Jacksonville can not discharge a regular policeman without giving him an opportunity to be heard in his own defense.</p> <p>5. Where an officer is entitled to a hearing before he can be lawfully discharged, the proceeding must, be had by and before the authorized body duly assembled, and not by and before a committee of such body.</p> <p>6. In an action to recover damages resulting from a wrongful discharge from the defendant’s service, the burden of proof is on the defendant to show that the plaintiff has been actually engaged in other profitable employment, or that, he might have been so engaged.</p> <p>7. Where a servant has been wrongfully discharged, it seems that in this State he should declare for the damages sustained in consequence of the breach of contract, and not for his wages as such.</p>

<p>Appeal from the Circuit Court of Greene County] the Hon. G. W. Herdmak, Judge, presiding.</p>

<p>. 1st error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.</p>

<p>Municipal Corporations—Ordinance—Fine—Settlement.</p> <p>A municipal corporation may accept a note in settlement of a fine imposed for a violation of an ordinance.</p>

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

<p>Mines—Sec- 8, Chap. 93, 5. S.—Application—Personal Injury—Recovery Sustained.</p> <p>Sec. 8, Chap. 93, R. S., applies to mines in which the cars are drawn by mules as well as to those in which they are operated by machinery.</p>

<p>Drainage—Dominant and Servient Estates—Evidence—Conflict—Injunction.</p> <p>This court declines to disturb a decree enjoining the defendant from opening a ditch to flow surface water upon complainant’s premises, the evidence being conflicting and there being sufficient to support the decree.</p>

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

<p>In error to the Circuit Court of McDonough County; the Hon. C. J. Schofield, Judge, presiding.</p>

<p>Injunctions—Dissolution of Temporary Injunction—Premature Assessment of Damages—Practice—Evidence—Presumption.</p> <p>1. An assessment of damages made upon the dissolution of a temporary injunction is premature, unless the cause is then finally determined.</p> <p>2. Upon a writ of error to review an interlocutory decree awarding damages upon the dissolution of a temporary injunction, the merits of the casé and the order of dissolution are not involved.</p> <p>3. Where the decree finds the facts and the evidence is not preserved in the record, the presumption is that the evidence was sufficient to establish the facts as found.</p>

<p>Mortgages—Foreclosure—Fraud—Notes—Statement of Amount Due— Extent of Relief—Evidence.</p> <p>Upon a bill to foreclose a mortgage, it is held : ' That without certain incompetent testimony there was abundant evidence to warrant the finding of good faith on the part of the mortgagee; that the statement of a larger amount in one of the notes than was really due did not avoid the mortgage as to a purchaser without actual notice ; that only definiteness or certainty as to the amount, not truth in the statement of it, was necessary; and that the court properly found the amount due on one of the notes, that being the only one upon which relief was sought.</p>

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

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

<p>Railroads—Diversion of Surface Water—-Release—Instructions—Evidence.</p> <p>In an action against a railroad company to recover damages for. diverting surface water from its right of way, out of its natural course, against and upon the plaintiff’s land, it is held: That a release of all claims for damages by reason of the location and completion of the defendant’s road, contained in a conveyance of the right of way, does not bar the action; that the instructions fairly presented the issues and the law; and that the evidence supports the verdict for the plaintiff.</p>

<p>Sates—Title Reserved by Vendor—Conditional Sale—Bailment—Rescission—Consideration—Remedies—Promissory Notes—Indorsement.</p> <p>1. An instrument expressing an absolute agreement to pay a certain sum o£ money at a time speciGed and to a person named, or his order, is a promissory note.</p> <p>2. An indorsement of a promissory note for collection does not pass the leg il title.</p> <p>3. Where the possession of personal property is delivered to the vendee under a contract reserving title in ihe vendor until payment, the transaction, as between the parties, is a conditio.,al sale, the condition being subsequent and to be performed by the vendee alone.</p> <p>4. A sale upon such condition is a good consideration for the vendee’s absolute promise to perform.</p> <p>5. The vendee can not, under such a contract, release himself from liability by returning or offering to return the property. The vendor may either resume possession of the property in the case of the vendee’s default., or he may maintain an action on the notes given for the purchase money.</p>

<p>Malicious Prosecution—Action against Corporation and its Agent-Agency—Express and Implied Authority—Evidence—Instructions—Probable Cause.</p> <p>L Although a corporation can act only through its agents, it may be liable for a malicious prosecution.</p> <p>2. The scope of an agent’s authority may he shown by circumstances as well as by proof of express authority. It includes whatever is fairly implied by the authority expressly given.</p> <p>8. To he implied, as within the scope of the authority expressly given, the act or proceeding must be of itself necessary, usual or appropriate to the end expressly contemplated by the contract of agency, or to meet an exigency naturally arising in the ordinary course of the business intrusted to the agent.</p> <p>4. In an action on the case for malicious prosecution' against a corporation and one of its agents, brought by a debtor of the former who had been charged with forgery by the latter, the charge being dismissed upon the preliminary examination, it is held: That the agents of the defendant corporation do not appear to have had authority, express or implied, to institute the prosecution in question ; that- the authority of its agents was not extended by what they said or did, se; arately or together, apart from the company; that the corporation had no pecuniary or other special interest in the prosecution complained of; that there was probable cause at least as to one of the agents of the corporation; and that there was error in the instructions and in the admission of evidence.</p>

<p>Dogs—Trespass—Action for Damages for Shooting Trespassing Dog— Instructions.</p> <p>1. Every person has a right, to defend and protect his property of every kind and character from injury or destruction, provided he u-es only such means as are reasonably necessary under the circumstances.</p> <p>2. In the case presented, it is held: That the defendant had a right to protect his wheat field from trespassing dogs; that it was for the jury to determine whether, under the circumstances, it was proper for him to shoot the plaintiff’s dog, or whether his property might have been protected by less extreme measures; and that the instructions fairly submitted the case to the jury.</p>

<p>Replevin—Principal and Surety—Chattel Mortgages—Assignment— Defenses—Estoppel—Conflict of Evidence.</p> <p>1. A surety lias no right of action against his principal until he has paid the debt secured or has in some manner been damnified.</p> <p>2. Where a surety holds a note and chattel mortgage for purposes of indemnity and assigns the same, his assignee can not enforce the mortgage until the mortgagee has paid the debt for which he was surety, or in some way has been damnified.</p> <p>3. A mortgagor may make the same defenses against an assignee, though an innocent holder for value and before maturity, as against the mortgagor.</p>

<p>Administration—Father and, Son—Recovery by Former for Services.</p> <p>In a proceeding by a father to recover against his son’s estate the value of services rendered by him as a clerk, it is held: That the evidence sustains the finding and the judgment for the plaintiff; that a mutual understanding between the two was tantamount to an agreement; and that it was proper for the claimant to increase his demand in the Circuit Court, if he thought he had before under-estimated the value of his services.</p>

<p>Appeal from the Circuit Court of Pike County; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>Practice—Constitutionality of Statute—Dismissal for Want of Jurisdiction.</p> <p>In an action involving the constitutionality of the act giving the Circuit Court of the county, in which the plaintiff resides, jurisdiction where the defendant is an insurance company, this court, being without jurisdiction, dismisses the appeal with leave to withdraw the record, abstract and briefs.</p>

<p>1leal Property—Conveyance—Action to Recover Discount on Judgment Liens—Agency—Joint Liability—Practice.</p> <p>1. In an action by a grantor against the grantee and her agent, to recover the amount of a discount obtained on judgments which were liens against the property conveyed, it is held: That although the defendants do not appear to have been entitled to the discount in question they are not jointly liable therefor.</p> <p>2. An objection to instructions which are not copied into the abstract can not be considered on appeal.</p>

<p>Donatio Mortis Causa&emdash;Delivery to Third Person&emdash;Sufficiency of.</p> <p>A gift, to operate as a donatio mortis causa, mu«t be actually delivered to the donee, or to a third person for his benefit. Where it is delivered to a third person, the donor must part with all control over the subject of the gift. If the donor retains control over the gift, the holder is regarded as his agent, and a direction to keep it for the donee will not amount to a present delivery sufficient to create a donatio mortis causa.</p>

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

<p>Action for Goods Sold—Husband and Wife—Agency.</p> <p>In an action brought by a wife, in whose name her husband carried on business, to recover for goods sold, this court reverses a judgment for the ■plaintiff, as it appears from the evidence that the goods were bought upon an understanding, known to the plaintiff, that they were to be credited on a judgment, against her husband.</p>

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

<p>Note—Indorsement in Blank—Whether a Guaranty—Conflict of' Evidence.</p> <p>1. Clear proof is required to overcome the presumption from a blank indorsement by a third party that a guaranty was intended.</p> <p>2. Where the question involved is one of fact and the evidence is conflicting, the finding of the jury will not be disturbed.</p>

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

<p>Landlord and Tenant—Forcible Detainer—Conflict of Evidence—Instructions,</p> <p>1. Where the evidence is conflicting great accuracy in the instructions is required.</p> <p>2. In civil actions the plaintiff is not required to make out his case “ to the satisfaction of the jury.”</p> <p>8. In an action of forcible detainer, it is held: That the evidence was of such a character as to require accuracy in the instructions; and that certain instructions given for the defendant were erroneous.</p>

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

<p>Action on Replevin Bond—Barties—Former Adjudication—Minority of Principal—Suggestion on Record—Practice in Justice Court—Fraud— Judgment—Impeachment Collaterally—Ax>peal—Rehearing—Practice.</p> <p>1. In an action on a replevin bond, it is held: That a record showing a judgment for the defendants in a former suit, brought by the plaintiff upon the same bond against the sureties only, was competent to sustain a plea of former adjudication in an action against all the obligors, as it appears from said record that the principal was omitted because a minor; that on appi al from the Justice the suggestion of the minority of the principal on the record was the proper practice; and that a replication to the plea of a former adjudication does not set out such a case of fraud on the part of the defendants as would be sufficient to avoid the judgment in question.</p> <p>2. In suits before Justices, and on appeal from their judgments, no written pleadings being required, effect is given to all evidence that would be admissible in a court of record under any proper pleadings;</p> <p>3. An objection based upon an alleged variance between the pleadings and proofs, can not be first raised in this court.</p>

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

<p>Practice—Pleading—Error without Prejudice—Intoxicating liquors— Dealer in—Negotiable Instrument—Assignment.</p> <p>1. Where a judgment has been set aside and the defendant, under a leave to plead to the merits only, files a good dilatory plea, the sustaining of a demurrer thereto is not such error as will reverse.</p> <p>2. A discontinuance after verdict, as to one of two defendants sued jointly, is merely an amendment and does not entitle the other defendant to plead in abatement.</p> <p>3. ‘ The assignment of a due bill payable in whisky or wine does not make the assignor a dealer in intoxicating liquors.</p>

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

<p>In error to the Circuit Court of McDonough County; the Hon. C. J. Schofield, Judge, presiding.</p>

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

Egbert Jamison, Judge, presiding. On April 14, 1887, an order was entered by the Superior Court in the case of Ada S. Havens et al. v. Caleb Clapp and Thomas Davies, appointing defendant in error receiver of the estate and property, real and personal, things in action, etc., of the said Clapp & Davies, and on the same day, pursuant to the order appointing the receiver, said Clapp & Davies executed a deed of transfer of all their property and effects to said defendant in…

<p>Voluntan/ Assignments—■Preferences—Judgment Notes—Whether Valid ■—Fraud—Burden of Proof .</p> <p>1. Fraud, will not be presumed, but must be proved; it will not be inferred where the acts charged as fraudulent can be fairly accounted for consistently with all the evidence as done in good faith and for an honest purpose.</p> <p>2. The burden of proof in cases arising out of assignments, is on him who alleges that a preference given to a creditor is fraudulent.</p> <p>3. Preferences given by a. debtor before he h ;s formed the determination to make an assignment for the benefit of his creditors, are valid.</p> <p>4. A debtor may place certain of his creditors in a position where they may gain a preference by giving them judgment notes, unless he does it in contemplation and as part of a general assignment.</p> <p>5. In the case presented, it is held: That the complainants have failed to show that the judgment notes in question were given after the debtor had determined to make an assignment, or that they were given in preparation for, or as part of, an assignment in contemplation by him, or which he might thereafter be compelled to make.</p>

<p>Sales—Implied Warranty of Title—Uefusal to Accept—Letters Patent —Evidence.</p> <p>1. In sales of personal property, by one in possession thereof, there is an implied warranty of title in the vendor. If the contract is still executory the vendee may refuse to accept the article sold, unless the vendor makes him a clear title.</p> <p>2. Where the article sold is covered by letters patent, held by a third person, the vendee may refuse to accept. Such incumbrance upon the right to use the article sold is such a defect of title as will constitute a breach of the implied warranty of title.</p> <p>3. In an action to recover the price of goods which the vendee has refused to accept, evidence tending to show that the goods are covered by letters patent, owned by a third person, is admissible.</p>

<p>Injunctions—■Executions—Set-off—Statute—Equity—Jurisdiction.</p> <p>1. Where a judgment debtor has an unsatisfied judgment against his creditor who is insolvent and has left the State, he may maintain a bill in equity to enjoin the Sheriff from enforcing the judgment against him and for a decree of set-off.</p> <p>2. The statutory right to have different executions set off against each other in appropriate cases, may he enforced in a court of equity, the statute making no provision as to the forum in which relief shall be sought for a denial of the right.</p>

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

<p>Heal ^Property—Covenant—Action of—Former Adjudication—Evidence.</p> <p>In an action o£ covenant to recover damages for a breach of a covenant in a deed, a decree rendered in a former suit between the parties, finding that there was a breach of said covenant in the failure of the defendant to pay a certain amount of interest, is admissible in evidence, although the court did not deem it expedient in said suit to enter a personal decree against the defendant for such amount, as it was a legal demand.</p>

<p>New Trial—Newly Discovered Evidence—Conflict of Evidence—Question for Jury.</p> <p>1. Newly discovered evidence, which is merely cumulative and not conclusive, is not sufficient ground for a new trial.</p> <p>■ 2. Where the evidence is conflicting and there is no error of law this court will not interfere.</p>

<p>Trover—Verdict—When too Small—New Trial.</p> <p>In an action of trover, where the verdict is for a less sum than the value of the property as fixed by the defendant, the trial court should set aside the verdict and grant a new trial.</p>

John P. Altgeld, Judge, presiding. In connection with this case see the following case of Holmes v. Beinis. A judgment by confession was entered in the Superior Court in favor of defendant in error and against plaintiff in error upon a note and warrant of attorney, of which the following is a copy, the words in italics being written in the blanks and the remainder of the instrument being printed: [[Image here]] The note was indorsed: “ Pay Holder & Go. or order.

<p>Confession of Judgment—Warrant of Attorney—Surplusage—Motion to Open Judgment—Evidence.</p> <p>Upon a motion to open a judgment, entered by confession on a warrant of attorney, it is held: That certain printed words in the warrant, which are inconsistent with the written parts of the note, should be rejected as surplusage; that the plaintiff was without nctice that the note in question was accommodation paper; and that the court below properly denied the motion, there being no such conflict of evidence presented by the affidavits as required the formation of an issue to be settled by a jury.</p>

<p>Divorce—Desertion—Issue—Practice—Dormer Adjudication.</p> <p>Upon a bill for divorce this court reverses the decree of the court below on the ground that an issue, other than that piesented by the pleadings, was tried.</p>

<p>Appeal from the Superior Court of Cook ‘County; the Hon. Egbert Jamison, Judge, presiding.</p>

<p>Landlord and Tenant—Holding Over—Presumption—liébuttal of— Instruction. ,</p> <p>1. Where a tenant occupies premises under a lease for a year and holds over without a new agreement, the landlord may elect to treat him as a tenant for another year on the terms of the original lease.</p> <p>2. The legal presumption arising from the mere fact of holding over can not be rebutted by proof of a contrary intention on the part of the tenant alone.</p> <p>3. It is error to instruct the jury on a theory which there is no evidence to sustain.</p>

<p>Jurisdiction—Injunction—Interlocutory Order—Appeal—Act of June 14, 1887—Divorce—Custody of Child.</p> <p>An order providing for the custody of a child, entered in divorce proceedings, upon a motion to dissolve an injunction affecting the custody of the child, is not an order overruling a motion to dissolve an injunction, or enlarging the scope of an injunction order, within the meaning of the Act of June 14,1887, providing for an appeal to this court.</p>

<p>In error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>In error to the County Court of Cook County; the Hon. Richard Prendebgast, Judge, presiding.</p>

Richard S. Tuthill, Judge, presiding. This is an appeal from a decree in chancery sustaining a demurrer to and dismissing the complainant’s bill.

Egbert Jamison, Judge, presiding. On the 20th day of July, 1880, John Taylor Davies of Liverpool, England, and John Arthur Atkinson of Chicago, entered into a co-partnership for the purpose of carrying on business in Chicago, under the firm name of Davies, Atkinson & Company.

Joseph E. Gary, Judge, presiding. This was an action on the case, brought by the First National Bank of Chicago against Seth F. Hanchett, Sheriff of Cook County, to recover damages for negligence in the execution of a writ of attachment.

<p>Set-off—Undisputed Evidence—Deal on Board of Trade—Joint Account.</p> <p>1. In a civil action an allegation which the evidence tends to prove, must be taken as made out where there is no evidence to the contrary.</p> <p>2. In an action on a promissory note this court, upon a review of the evidence, finds that the defendant is entitled to an off-set growing out of a deal in wheat on the board of trade, said deal having been on the joint account of the maker and payee of the note.</p>

<p>Insolvency—Preferences—Judgment Notes—Attorney's Fees.</p> <p>1. An insolvent debtor may prefer particular creditors to the extent of his liability to them, but he can not add anything by way of gratuity and make it part of the preferred claim.</p> <p>2. Where an insolvent debtor has included attorney’s fees in judgment notes, made and delivered for the purpose of preferring certain creditors and to enable them to obtain immediate judgments and executions, such fees are mere gratuities which equity will follow for the benefit of other creditors into the hands of said creditors and their attorneys.</p>

<p>False Imprisonment&emdash;Arrest&emdash;What Constitutes&emdash;Oral Instructions&emdash; Error without Prejudice.</p> <p>1. While it is error for the court to instruct the jury orally, it is not sucli error as will reverse where the appellant is not thereby injured.</p> <p>2. In an action to recover damage for false imprisonment, it is held: That the evidence wholly fails to show an arrest of the plaintiff; and that the court properly directed the jury to find for the defendant.</p> <p>3. While in general no actual force or compulsory seizure is necessary to constitute an arrest or imprisonment, there must be wqrds and acts used and done toward the person to be arrested clearly showing an intention to arrest, and his submission ípust be to a threatened and reasonably apprehended force.</p>

<p>Partnership — Dormant Partner — Definitions—Dissolution—Notice— Notes—Recovery under Common Counts.</p> <p>1. A dormant partner is one whose name is not known or does not appear as a partner, but who is a silent partner and partakes of the profits.</p> <p>2. Where one is embraced in the title of the firm under the general description, “ & Co.,” he isa general partner.</p> <p>3. Where proper notice of a dissolution is not given and the business is continued in the firm name, the retiring partner remains liable as to persons dealing with the other partner without notice, actual or constructive, of the dissolution.</p> <p>4. In an action on firm notes, the plaintiff, if not entitled to recover on the notes because of their invalidity, may recover under the common counts for the firm indebtedness for which the notes were given.</p>

<p>Personal Injuries—Damages—Whether Excessive—Remittitur—Conflict of Evidence—Question for Jury.</p> <p>1. Where the evidence is conflicting the verdict must be held to settle the questions of fact involved, unless it clearly appears that the verdict is the result of misapprehension or of passion on the part of the jury.</p> <p>2. In an action to recover damages for a personal injury, the fact that the court differs from the jury as to the damages and requires a remittitur of a portion thereof, does not show that the verdict was the result of passion or prejudice.</p>

<p>In error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Practice—Incomplete Record—Presumption of Regularity of Judicial Proceedings—Dismissal of Bill for Want of Prosecution—Motion to Set Aside Decree.</p> <p>1. In the absence of a complete record this court is bound to indulge in every reasonable presumption in favor of the regularity of the proceedings of the court below.</p> <p>2. Before a complainant can challenge the propriety of a decree dismissing his bill, he must bring the bill itself before the court, or it will be presumed in support of the decree that no meritorious grounds for relief are shown.</p> <p>3. The dismissal of a bill for want of prosecution, while the cause is pending on a reference before a master, may, under certain circumstances, be proper.</p> <p>4. This court declines to consider a motion to set aside a decree, as it does not appear to have been made at the term at which the decree was entered nor that it was ever decided by the court below,</p>

Murray F. Tuley, Judge, presiding. This was a bill in chancery, brought by Thomas F. O’Beill against the Consolidated Rapid Transit and Elevated Railroad Company of Chicago and George A. Emery, to compel the surrender and cancellation of a certain instrument in writing executed by the complainant to said company.

<p>Practice—Bill of Exceptions—Extension of Time for Signing—Stipulation—-Mandamus.</p> <p>1. The records of a court are not so far closed at the end of the term that the parties may not appear at a subsequent term and by stipulation authorize the court to open them and take further proce 'dings.</p> <p>2. The court may, at a subsequent term and within the time limited for filing the bill of exceptions, by an order entered in term time upon express stipulation of the parties, extend the time for filing such bill.</p> <p>3. Where a party presents a, bill of exceptions to the Judge who tried the cause, for his signature, within the time prescribed for filing the same, he will not be prejudiced by the neglect or refusal of the Judge to sign it until after the time fixed has expired.'</p> <p>4. Where the trial Judge improperly refuses to sign a bill of exceptions</p> <p>a peremptory writ of mandamus, requiring him to sign and seal it, will, be awarded. =</p>

<p>Trusts—Creation of—Words—Real and Personal Property—Fraudulent Conveyances to Trustee—Constructive and Express Trusts—When Equity Will Execute—Fraud as a Defense—Husband and Wife—Conveyance to Defraud Wife.</p> <p>1. No particular form of words is necessary to create a trust or to make the person declaring the trust a trustee. Where a person orally or in writing explicitly or impliedly declares that he holds personal property in presentí for another, such declaration constitutes him a trustee of such property in an expressed trust for such other person. The same principles of construction apply to a declaration of a trust in real property, except that such declaration must be in writing.</p> <p>2. Where either personal or real property is held in trust, the beneficial interest in the property is vested in the cestui que trust and he is entitled to the aid of a court of chancery to enforce the trust.</p> <p>8. The court will not refuse to enforce an express trust for the reason that the conveyance to the trustee, who has declared the trust, was to delay, hinder and defraud the grantor’s wife in obtaining alimony and maintenance in a suit which it was apprehended she was about to commence.</p> <p>4. A secret trust is one that is constructive as distinguished from one that is expressed.</p> <p>5. A court of chancery will not execute a secret trust in behalf of the fraudulent grantor, because equity will not construct a trust upon a basis of fraud, but equity will enforce an express trust if well created. The trustee can not revoke a beneficial interest which by his own act has vested, by setting up a fraud in which he has participated.</p> <p>6. It seems that a transfer of property, real and personal, made to defeat or hinder a wife from obtaining support or alimony, is subject to the same rules as if made to hinder and defraud creditors.</p>

Gwynn Garnett, Judge, presiding. The appeal in this case is from a decree of the court below sustaining a demurrer to a bill in chancery, and dismissing the bill at complainants’ costs for want of equity.

<p>Conspiracy to Defraud Cook County—False Pretenses—Misdemeanor— Jurisdiction—Evidence—Admissibility—Other Offenses—Books of Account ■—“False Books”—General Conspiracy—Instructions—Improper lie-marks of Counsel—Jury—Special Venire—Challenge to Array—Correction of Error—Bill of Particulars—Office and Effect of.</p> <p>1. An appeal lies to this court in all criminal cases below the grade of felony.</p> <p>2. A conspiracy to defrauda county by means of false pretenses is a misdemeanor.</p> <p>3. The true office and effect of a bill of particulars, in criminal as well as in civil cases, is to limit and make specific the claim or charge to be proved and not to confine or restrain the offer of any relevant evidence which will support the charge as thus limited.</p> <p>4. Any evidence which tends to prove the crime charged, or which tends to support a pertinent hypothesis, is competent, although it may also tend to prove a distinct offense, which may be the subject of a separate prosecution.</p> <p>5. In a case of conspiracy it is proper to show the entire history and plan of the conspiracy and whatever has been done in pursuance thereof, in so far as may be necessary to connect the defendants with the crime charg'd and to explain their acts and motives, although they may thereby be implicated in numerous overt acts constituting distinct indictable offenses, and although the conspiracy may be disclosed in numerous indictable aspects.</p> <p>6. Relevant evidence found in the record must be regarded by this court as properly there, unless it appears that some valid, specific objection to it was called to the attention of the trial court.</p> <p>7. In a prosecution for a conspiracy to defraud Cook County by means of false pretenses, it is held: That evidence tending to prove the conspiracy charged, although touching other overt acts than those specified in the bill of particulars, was properly admitted; that an objection, that certain bills offered in evidence were not sufficiently identified, not having been made when they were offered, must be treated as waived; that certain general and “false ” books of account were properly admitted in evidence; that certain statements attached to the cover of the ledger were properly used in evidence, there being no specific objection to them; that any evidence tending to support the hypothesis of a general conspiracy, embracing the particular transaction in question, was relevant to the issue; that the admission of certain improper evidence could not have injured the defendants; that there was no substantial error in giving and refusing instructions; that it was proper for the court to cure an error in sustaining an oral demurrer to the challenge to the array of jurors; and that certain improper remarks of counsel could have had no such material influence as to authorize the disturbance of_a verdict warranted by the evidence.</p>

<p>In error to the Criminal Court of Cook County; the Hon. Egbert Jamison, Judge, presiding.</p>

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

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

<p>Mechanic's Lien— Trust Property—Parties.</p> <p>Both the trustee and the cestui que trust are necessary parties to a proceeding to enforce a mechanic’s lien involving trust property.</p>

Murray F, Tulby, Judge, presiding. This was a bill in chancery brought by John Y. Farwell and others, co-partners under the firm name of John Y. Farwell & Company, against Gerhard Becker and Elbert W. Shirk, to compel contribution in respect to certain judgments rendered in the State of Iowa. The cause being heard on pleading s and proofs, a decree was rendered in accordance with the prayer of the bill, and the defendants have appealed to this court.

<p>Sales—Fraud as to Creditors—Notice to Purchaser—Antecedent Debt —Notice—Defective Instruction.</p> <p>1. " It seems that a creditor of a failing debtor may accept a stock of goods for his debt without reference to the motives by which his debtor may be actuated, provided he himself acts in good faith.</p> <p>2. Where an antecedent creditor of a failing debtor purchases a stock of goods at a price largely in excess of the debt, the goods so purchased being divisible, he must be treated as a mere purchaser, at least as to such excess, and subject to the rules of law governing that relation.</p> <p>8. Where a debtor sells prop >rty with intent to hinder, delay or defraud his creditors, notice to the purchaser of the debtor’s fraudulent intent is per se evidence of mala fides, and renders the sale void without reference to the xjurchaser’s actual intent, the fraudulent motive of the debtor being imputed to the purchaser.</p> <p>4. In the case presented it is held: That an instruction was erroneous in stating, under the facts supposed, that it was immaterial whether the purchaser had any reason to suspect the motive or intent of the debtor.</p>

<p>Contempt—Excessive Punishment—■Custody of Child—Habeas Corpus— Practice—Appeal—Joinder in Error—Waiver.</p> <p>1. In punishing for a contempt the court should have regard solely to the maintenance of its power and dignity, and the prevention of unlawful interference with the due administration of justice.</p> <p>2. Where a defendant, in a habeas corpus proceeding to determine the right to the custody of a child, and her physician, have removed a birthmark from the child, in order to destroy evidence of identity, a sentence for contempt of court, imposing a fine of $500 upon each, with imprisonment in the county jail for a term of thirty days, is excessive.</p> <p>8. It seems that a joinder in error is a waiver of the objection that the case is brought before this court by appeal instead of by writ of error.</p>

<p>In error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>Parties—Agency—Contract under Seal—Modification of—Consideration.</p> <p>1. The rule that a principal may sue on contracts made by his agent in his own name, doss not apply where the contract is under seal.</p> <p>2. An executory contract under seal can not be modified by a parol agreement so as .to authorize either party to sue upon it as thus modified.</p> <p>3. A new and additional agreement, whether it be a substitute for the old, or in addition to or beyond it, must be upon a new consideration.</p>

<p>Negotiable Instruments—Authority of Agent to Malee Notes—Plea of General Issue—Affidavit—Evidence—Common Counts—Joint Liability— Practice—Opening Judgment.</p> <p>1. A general agent has no authority as such to make promissory notes in the name of his principal. The authority will not be implied, but express authority must be shown.</p> <p>2. A plea of the general issue verified by affidavit, in an action of assumpsit on a promissory note, requires the plaintiff to prove the execution of the note. If it was executed in the name of the defendant by one claiming to act as his agent, the plaintiff must also show the agent’s authority to execute the note.</p> <p>3. A recovery can not be had against defendants jointly under the common counts upon an indebtedness for which but one is shown to be liable.</p> <p>4. Under a stipulation for opening a judgment entered by default, it is held: That it was incumbent upon the plaintiff to make out his case precisely as though no judgment had been entered; and that the judgment must fail for want of evidence, the note not having been offered or read in evidence.</p>

<p>Malicious Prosecution — Evidence, of Character — Admissibility of— Instructions—Accuracy—When Required—Motion for Reto Trial.</p> <p>1. An instruction -which has no basis in the evidence, but calls the attention o£ the jury to evidence which has been offered and persistently paraded before them, and has been excluded, is erroneous.</p> <p>2. Where the evidence is sharply conflicting and the question presented is a doubtful one, the instructions must be accurate and free from any tendency to mislead the jury.</p> <p>3. The action of a trial court in giving an improper instruction, if properly excepted to at the time, may be assigned for error in an appellate court, although the objection was not raised in the motion for a new trial.</p> <p>4. In an action for a malicious prosecution, the principal question involved being that of probable cause, it is held: That evidence of the plaintiff’s reputation for honesty and integrity, persistently offered but excluded, will not sustain an instruction touching that subject; that, the question involved being a very doubtful one and the evidence conflicting, it was incumbent on the court to instruct the jury with great accuracy, and to avoid giving any instruction which would have a tendency to mislead; and that the error in giving such instruction may be considered by this court, although it was noc specified in the motion for a new trial.</p>

Richard S. Tuthill, Judge, presiding. This action was brought to recover from appellant damages for falsely, fraudulently and deceitfully representing a certain building owned by him and which appellee was about to lease, to be in good repair, in a sanitary condition, and fit for occupancy, whereby appellee was induced to lease and occupy said building.

Elliott Anthony, Judge, presiding. This was a suit in assumpsit, brought by Louisa M. Avery against the Superior Council of the Royal Arcanum, to recover a sum of money payable to her, by agreement, upon the death of her son, Charles A. Avery, who at the time of his death was a member of the Royal Arcanum. During the pendency of the suit Louisa M. Avery died and, her death being sug- • gested upon the record, Louisa Lund, her administratrix, was substituted as plaintiff.

<p>Jurisdiction—Appeal—Freehold—Might of Way.</p> <p>No appeal lies to this court in a case involving an estate in fee in a right of way, such an estate being a freehold.</p>

<p>Arbitration—Time and Place of Hearing—Notice to Parties—Waiver— Estoppel—Arbitrators Must Act Together—Bill to Set Aside Award.</p> <p>1. It is the duty of arbitrators to give due notice to the parties of the time and place of hearing before proceeding in a cause submitted to them.</p> <p>2. A waiver of notice by a party to an arbitration should be shown to be clear and unequivocal. Where it is set up against him as an estoppel that others appeared for him, such estoppel must he clearly established.</p> <p>3. It seems that notice informally given by an adversary is insufficient, unless the party receiving it appears and participates in the hearing without objection.</p> <p>4. Arbitrators must act togefchsr and they can not take testimony separately, unless by express consent of the parties tp. the submission.</p> <p>5. An award will be sustained where only irregularities are urged againpt it, but where the departure from governing rules is such as to deprive a party of a fair opportunity to be heard, or to permit a hearing in part before one only of two arbitrators chosen, the award will be set aside.</p>

<p>Seal Property—Statutory Covenant of Seizin—Breaches—Taxes—Lien —Action for Damages—Outstanding Tax Deed—Measure of Damages— Entry of Remittitur in this Court—Evidence—Instructions.</p> <p>1. The statutory covenant of seizin is in legal effect a covenant of title. Unless the grantor, by his deed, invests the grantee with an indefeasible estate in the premises conveyed, there is a breach of his covenant of seizin, for which the grantee may at once bring his action.</p> <p>2. In the case presented, the evidence introduced in support; of the tax deed is sufficient to show a paramount outstanding title. The collector’s return was prima facie evidence o£ the assessment and the amount of the tax.</p> <p>8. Where a grantee has purchased an outstanding title, the amount reasonably and in good faith paid for it, provided it does not exceed the purchase money paid to the covenantor, is the measure of his damages.</p> <p>4. A grantee, who has paid off taxes which were a lien upon premises when conveyed to him by warranty deed, may recover from the grantor the amount so paid, with interest.</p> <p>5. The entry of a remittitur is allowed in this court in the case presented, the verdict being slightly excessive because of the admission of improper evidence,</p>

Murray F. Tuley, Judge, presiding. This writ of error is prosecuted to review the decree of the court below in sustaining a demurrer to the complainant’s bill and dismissing the same for want of equity. The bill was filed by the plaintiff in error to enjoin the use of certain knitting machines containing improvements covered by letters-patent.

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

<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. Kirk Hawes, Judge, presiding.</p>

<p>Petition for mandamus.</p>

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

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

<p>Practice—-Appeal from Justice—Dismissal—Motion to Set Aside—Discretion—Diligence—Negligence of Attorney—Procedendo—Record.</p> <p>Upon a motion to set aside a judgment dismissing an appeal from a Justice, it is held: That the negligence of his attorney is to be imputed to appellant; that this court can not interfere, in the absence of an abuse of discretion by the trial court in overruling the motion; that diligence and merits are both required before such a motion can be granted; that the court below had authority to dismiss the appeal with procedendo; and that the record is not defective in failing to show that appellant was called.</p>

<p>Practice—Dismissal as to One of Ttoo Joint Defendants—Conflict of Evidence—Question for Jury.</p> <p>1, It is within the power of the trial court to allow the plaintiff to disniiss against one of two defendants who are sued as joint contractors, and to permit the case to proceed as against the other defendant. The fact that the retained defendant has filed a plea denying joint liability, does not alter the rule.</p> <p>2. Where the evidence is sharply conflicting, this court will not interfere with the verdict of the jury.</p>

Egbert Jamison, Judge, presiding. The hill of complaint filed by appellant in the court below, after setting forth recovery of judgment for §200 before a Justice of the Peace, and the recording of a transcript in the office of the clerk of the Circuit Court of Cook County, proceeds to aver that complainant, on the 27th day of August, 1886, caused to be issued an execution upon said transcript which came to the hands of the Sheriff of Cook County, directed against the…

Murray F. Tuley, Judge, presiding. This is an appeal from the decree of the court below, in a proceeding to foreclose a trust deed as a mortgage, and settle equities between incumbrancers.

<p>Statute of Limitations—Conditional Promise—Circumstances of Admission—Evidence.</p> <p>1. An acknowledgment of indebtedness, to remove the bar of the Statute of Limitations, must be of such a character as clearly to show a recognition of the debt, and an intention to pay it. If a new promise is conditional, a performance of the condition must be shown.</p> <p>2. The fact that the circumstances of the admission of an indebtedness are such as to affect different minds in different ways, so as to admit of a fair conclusion that no new promise was intended, is alone sufficient to prevent its operating as an avoidance of the bar of the statute.</p>

<p>Action against School Board—Interest—Unreasonable and Vexatious Delay in Payment—Judgment—Surplusage.</p> <p>1. Whether there has been such an unreasonable and vexatious delay in the payment of money due the plaintiff as to entitle him to interest, is a question of fact for the jury.</p> <p>2. In an action against a school board to recover the price of a bill of lumber, it is held: That the evidence sustains the verdict for the plaintiff; that the delay in payment was both unreasonable and vexatious; and that certain words in the judgment should be rejected as surplusage.</p>

Dorrance Dibell, Judge, presiding. In connection with this case see the following and related case of the Chicago & Alton Railroad Company v. Riley.

Dorrance Dibell, Judge, presiding. In connection with this case see the preceding and related case of the Chicago & Alton Railroad Company v. Connors.

<p>In error to the Circuit Court of Kankakee County; the Hon. Franklin Blades, Judge, presiding.</p>

<p>Breach of Promise of Marriage—Action for—Evidence of Defamation of Character, Inadmissible—Damages—Measure of—Evidence—Conflict of— Instructions.</p> <p>1. Breach of promise of marriage and defamation of character, being distinct causes of action, can not both be made the subject of inquiry in the same suit.</p> <p>*2. In an action for breach of promise of marriage, evidence of defamation of the plaintiff’s character by the defendant is inadmissible.</p> <p>3. In such an action evidence of preparations for the contemplated mar. riage is admissible, as furnishing an element to he considered in the computation of damages. Such preparations, unless made with the knowledge and assent of the defendant, are inadmissible to establish a promise of marriage by either party.</p> <p>4. The assessment of damages in such cases should include only such damages as result in consequence of the non-performance of.the contract. Where the evidence does not show the loss of a permanent home, the money value of such a home should not be included in such assessment.</p> <p>5. An instruction calling the attention of the jury to the attendant facts and circumstances which tended to corroborate one of the parties only, where their testimony is conflicting, is one-sided, unfair and erroneous.</p>

<p>Sales—Action to Recover Price of Corn—Storage.</p> <p>In an action to recover the price of certain corn which the plaintiff had delivered to the defendant, it is held: That the finding of the court below that the corn was not put into the defendant’s warehouse on storage, is sustained by the evidence; and that, if the corn was sold without any agreement as to the price, the ruling price at the time of delivery would go\ era.</p>

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

<p>Set-Off—Motion by Plaintiff to Dismiss Suit—Discretion—Exceptions to Report of Referees—Evidence—Practice.</p> <p>1. After a plea of set-off has been filed, it is. within the discretion of the court whether to grant a motion by the plaintiff to dismiss the suit.</p> <p>2. In an action of assumpsit to recover a balance claimed to be due for services rendered, in which the defendant interposed a plea of set-off, it is held,: That the testimony of certain witnesses, and certain checks, notes, and a sworn copy of the footings of an account made by the plaintiff, were properly admitted by the referees; that the findings and conclusions of fact of the referees are entitled to the same consideration as the verdict of a jury; and that this court can not consider objections to the report of the referees, which were not made in the court below.</p>

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

William Brown, Judge, presiding. This was case, to recover damages for personal injuries alleged to have been occasioned by a defective sidewalk on the east side of B Street, between Third and Fourth Streets, in the City of Sterling. The defect shown by the evidence was a hole about a foot wide and four inches deep, caused by a missing board. Verdict and judgment were for Lucy A. Merrill, plaintiff below and appellee here, for $2,000 damages.

John J. Glenn, Judge, presiding. This was a hill in equity brought by the appellee, a resident and taxpayer of the City of Rock Island, praying to have it enjoined from maintaining, managing and controlling an abattoir, or public slaughtering house, within the city limits, and from passing any ordinance or making any contract for such purpose, and from appropriating or expending any of the money of the said city for such purpose, or for hire, wages or salary of a deputy…

<p>Chattel Mortgages—Fraud—Intent to Hinder and Delay Creditors— Insecurity Clause—Levy under Execution—Replevin—Instructions.</p> <p>1. In an action of replevin brought by the mortgagee to recover personal property held under execution against the mortgagor, it is held: That the evidence sustains the finding that the chattel mortgage was fraudulent and void as to creditors; that the court properly modified an instruction touching the insecurity clause of the mortgage; and that there was no error in the instructions that could have prejudiced the appellant.</p> <p>2. A chattel mortgage given and accepted to hinder and delay the creditors of the mortgagor, is void as to such creditors, although it is also given to secure a bona fide indebtedness.</p> <p>3. It seems that the seizure under execution of property covered by a chattel mortgage entitles the mortgagee to act under the insecurity clause of the mortgage.</p>

<p>Forcible Flntrii and Detainer—Action on Appeal Bond—Measure of Damages—Former Adjudication—Pleading—Defective Pleas—■Practice.</p> <p>1. In an action of debt on a bond the plea of nil debet is bad on demurrer. But if the demurrer is overruled the defendant waives the grounds thereof by pleading to the breaches assigned.</p> <p>2. A demurrer to a special plea can not be carried back to the declaration over the plea of non estfactum.</p> <p>8. Where a plea purports to answer the whole cause of action, but in fact answers only a part, the whole plea is bad.</p> <p>4. Where the plaintiff in an action of forcible entry and detainer is wrongfully kept out of the possession of the premises during the pendency of an appeal, the value of the use and occupation, or the reasonable rental value, is the correct measure of damages in an action on the appeal bond.</p> <p>5. A former adjudication of a matter in controversy is conclusive only as to matters actually determined and such other matters as might have been set up and litigated in the first suit.</p> <p>6. In the action of forcible entry and detainer the inquiry whether the plaintiff is entitled to rent or damages can not arise. The action is purely statutory and the statute makes no provision for rendering judgment for either rent or damages.</p> <p>7. One who does not purchase pendente life can not be injuriously affected by a judgment or decree to which he was not a party.</p> <p>8. Objections to the instructions can not be first raised in this court.</p> <p>9. In the case presented, the allegation contained in the declaration, that the plaintiff obtained judgment in the action of forcible entry and detainerwas not put in issue by any of the pleas filed, and no evidence of that fact was necessary.</p>

<p>Action against Step-Father to Recover for Services and Rent—Statute of Limitations—Dower—Rights of Widow before Assignment—See. 27, Chap. 3é, Gross' R. S.</p> <p>1. In an action by a step-daughter against her step-father to recover for services and rent on certain premises, of which she was one of the heirs, it is held: That the evidence of a promise to pay wages and rent is weak and unsatisfactory; that the evidence to support a new promise to remove the bar of the Statute of Limitations is insufficient; and that, without a promise to pay, the defendant is not liable.</p> <p>2. To remove the bar of the Statute of Limitations the new promise must be definite as to amount, and the evidence of such promise must be clear and satisfactory.</p> <p>8. See.'27, Chap. 34, Gross’ R. S., 2d Ed., 1869, was not a homestead statute. Under that section the widow might retain possession of the house and plantation where the husband most usually dwelt, next before his death, free from rent until her dower was assigned.</p>

<p>Dram Shops—Municipal Corporations—Classification of Licenses by Quantity—Clause 46, Sec. 1, Art. 5, Incorporation Act of 1672.</p> <p>A dram shop license to sell intoxicating liquors in quantities less than one gallon, does not exhaust the power given to municipal corporations by clause 46, Sec. 1, Art. 5, of the general incorporation act of 1872. Hence an ordinance requiring a license before making sales of liquor in excess of one gallon is valid.</p>

Charles Blanchard, Judge, presiding. In February, 1884, William Butters executed to Ann Armour a mortgage upon 207 acres of land in- La Salle County, to secure the payment of $3,000 in five years, with seven per cent, interest, and said mortgage is still a valid and subsisting lien upon said land.

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

<p>Negotiable Instruments—Action on Note—Accord and Satisfaction— Plea of NulTiel Corporation—-Presumption of Payment—Instructions.</p> <p>1. In an action brought by a corporation on a promissory note, it is held: That the issue of an accord and satisfaction, which is the real and substantial matter in controversy, was not fairly presented to the jury; that the defense made on the plea of rml tiel corporation probably misled the jury; and that certain of the instructions .were misleading.</p> <p>2. The presumption of payment of a promissory note does not arise upon a failure to make a demand at maturity, or within any period of time thereafter less than that fixed by the Statute of Limitations.</p> <p>3. An instruction which singles out certain circumstances in evidence and ignores others, is improper.</p> <p>4. Words or terms from a foreign language should not be used in an instruction without fully explaining their meaning, unless such words are in common use among the people.</p>

<p>Appeal from the City Court of Aurora; the Hon. Charles Kellum, Judge, presiding.</p>