Volume 26 — Illinois Appellate Court Reports

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

<p>Gaming Contracts—Board of Trade—Options—Action on Note—Burden of Proof—Intention—Settlement—Practice.</p> <p>1. Where the maker of a promissory note seeks to avoid the same on the ground that the consideration was illegal, the burden of proof is upon him to show the fact by a clear preponderance of the evidence.</p> <p>2. It is the intention of the parties that gives character to a transaction on the Boáxd of Trade. If either party contracts in good faith, he is entitled to the be'nefit of his contract, whatever may have been the secret purpose or intentioisgf the other party</p> <p>8. An issue not presented by the pleadings in the trial court can not be considered by this conrt.</p> <p>4. It seem* that the giving of a note for a balance claimed to be due on account of the execution of a contract is a waiver of any claim of noncompliance with the terms of the contract.</p>

<p>Appeal from, the Circuit’Court of Ogle County; the lion. John Y. Eustace, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Winnebago County; the Hon. William Brown, J udge, presiding.</p>

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

<p>Replevin—Chattel Mortgage—Distress Warrant—Priority of Liens— Question of Fact.</p> <p>In an action of replevin involving the priority of liens on certain furniture based oa the -question whether the lien of a chattel mortgage was waived by surrender of possession, this court declines to interfere with the finding of the court below in favor of the mortgagee, there being a sharp conflict of evidence.</p>

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

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

<p>Mechanic's Lien—Conflict of Evidence.</p> <p>Upon a review of the evidence, which was conflicting, this court declines to interfere with a decree allowing a mechanic’s lien.</p>

<p>Intoxicating Liquors—Indictment for Selling to Person while Intoxicated—Evidence—Witness—Whether Biased or Interested—Sufficiency of Record—Instructions.</p> <p>In a prosecution for selling intoxicating liquors to a certain person while intoxicated, it is held: That the time required to recover from, the effects of intoxicating liquors was a question of fact for the jury; that the evidence that the article sold was whiskey, is sufficient; that there is nothing in the conduct of a certain witness for the prosecution to show that he was biased or interested; that the objection that the record does not show that the indictment, which was certified to the County Court for trial, was returned by a grand jury duly selected and sworn and having authority to find it, is not well taken, there being no application for a complete record; and that there was no error in the instructions.</p>

<p>Negotiable Instruments—Note—Condition.</p> <p>A promissory note payable in one year, interest to be paid annually to the payee and his wife, and the note to become null and void at their death, will sustain an action at the end of one year.</p>

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

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

<p>Set-off—Judgments—Decree Pro Confesso—Reference to Master—Premature Appeal.</p> <p>Upon a bill filed by a judgment creditor of an administratrix to have certain judgnn nts in his favor set off against the judgment in favor of the defendant, it is held: That the decree rendered pro confesso, allowing the set-off claimed and an injunction, and referring the cause to a master to state the balance due from the complainant, is not a final decree for purposes of appeal.</p>

<p>Exemptions—| 13, Chap. 53, Starr <& C. III. Stat.—Money Due— Garnishment.</p> <p>Money due a judgment debtor may be reached by garnishee process, although such debtor has less property, inclu.ling the money in question, than he is allowed by the statute of exemptions.</p>

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

<p>Bailroads—Action for Damages for Personal Injuries—Acts of Fireman without the Scope of Ms Employment.</p> <p>1. Where a servant personally, and wholly for a purpose of his own, does an act not connected with the business of his master, and not intended by him to further the objects of his employment, the muster is not liable for an injury thereby occasioned.</p> <p>2. In an action against a railroad company to recover damages for a personal injury, caused by the explosion of torpedoes placed on the track as a station by a fireman belonging to a freight train, it is held: That it does not appear from the evidence that the conductor of the train knew, prior to the explosions, that the torpedoes were upon the rails; and that it was not the duty of the conductor nor of the company to keep constant watch of the rails on both sides of the train while standing to ascertain whether dangerous explosives were placed under the cars, either by strangers or employes of the company not acting in furtherance of its business, or within the scope of their employment.</p>

<p>Partnership—Pill for Accounting—Ownership) of Tonnage License to Manufacture Barbed Wire—Ayency—Costs.</p> <p>Upon a bill filed by one of two partners, after the dissolution of the firm, for a settlement of the partnership accounts, it is held: That the tonnage license, from the owners of certain letters patent, under which the firm had manufactured barb d wire, was the property and an asset of the firm and not the individual property of the defendant; that in procuring such license the defendant acted for the firm; that the issue of the license was part of an arrangement by which a corporation in which the parties were interested was dissolved and the firm organized to succeed to its business; that in procuring the license he acted for such of the stockholders of-the corporation as should actually become members of the proposed firm; and that the defendant should account for the value of certain tonnage for which he surrendered the license and appropriated the benefits derived from such surrender.</p>

<p>Railroads—Personal Injuries—Fellow-Servants—Contributory Negligence.</p> <p>1. In an action brought by a switchman against a railroad company to recover damages for a personal injury received in the course of his employment, it is held: That plaintiff and the engineer were fellow-servants; that the negligence of the engineer was the proximate cause of the injury; that the acts of the foreman, if negligent, did not render the defendant liable; and that the weight of the evidence shows that the plaintiff was guilty of contributory negligence.</p> <p>2. The fact that one of several servants, in the habit of working together and in the same line of employment for a common master, has power to control and direct the actions of the others with respect to such employment, will not render the mister liable for Ms negligence resulting in an injury to one of the others, unless the negligence complained of arises out of and is the direct result of the exercise of such authority.</p>

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

<p>Railroads—Collision—Action by Engineer to Recover Damages for Personal Injuries—Evidence—Res Gestas—Improper Evidence—Pleadings — Instructions—•Contributory Negligence—Speed of Train—Question for Jury—Rules of Defendant—Fellow-Servants.</p> <p>1. In action by an engineer against a railroad company to recover damages for personal injuries received in jumping from, his engine immediately before a collision, it is held: That evidence as to the character of the road at the place of the collision, its grade, the cuts through which it was constructed, the curves in the track, and the nature of the ground on each side of the road-bed, was properly admitted as part of toe res gestae; that evidence concerning the lack of air-brakes on the engine in charge of the plaintiff, and of the omission of a semaphore from the locality of the accident, for signaling trains, was improperly admitted, such evidence not being relevant to the issues presented by the pleadings; that there was no substantial error in the instructions; and that it is at least doubtful whether the plaintiff was, at the time of the accident, in the exercise of ordinary and due care.</p> <p>2. A train dispatcher or division superintendent of a railroad company, under whose orders trains are run, is not in the same line of employment as an engineer who runs a locomotive under his orders.</p> <p>3. Lacey, J., in a concurring opinion, concludes that the facts as they appear in the record do not warrant a recovery.</p>

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

<p>Gaming Contracts—Board of Trade—Options—Action under See. 132, Criminal Code, against Brokers—Conflict of Eoidenee—Statute of Limitations—Waiver.</p> <p>1. Where a person enters into a gaming contract with a broker or commission merchant, and pays over money or property to cover losses sustained, be may maintain an, action under Sec. 132, Criminal Code, to recover the same.</p> <p>2. The right to recover depends upon the character of the contract made between the parties, without reference to the character of any contract made between the broker and a third person.</p> <p>3. The bar of the Statute of Limitations is a personal privilege of the defendant, which is waived if not interposed as a defense in the trial court.</p>

<p>Criminal Law—Assault and Assault and Bdttery—Indictment—Practice.</p> <p>1. No conviction can be had in a criminal prosecution for an offense which includes some ingredient which is not necessarily included in the charge set forth in the indictment.</p> <p>2. An assault and an assault and battery are separate and distinct offenses under the statutes of this State.</p> <p>3. Where the indictment does not support the verdict and the judgment, the defendant may avail himself of the objection in this court, although neither a motion for a new trial nor a motion in arrest of judgment was made in the court below.</p>

T. M. Shaw, Judge, presiding. This was an agreed case submitted to the Circuit Court of Peoria County, at its May term, 1887. That court found the law of the case to be with Charles W. ¡Rockhold, the plaintiff below, and that the defendant society was indebted to him in the sum of §1,836, and thereupon rendered judgment in accordance with such findings and for costs, and awarded execution.

Alfred Sample, Judge, presiding. This was a bill filed by appellant against appellees, seeking to redeem real estate from a mortgage held by appellees, or one of them. John T. Martin was the original owner of the land in question and, on July 10, 1875, borrowed from E. Sanford §300 for five years at ten per cent, interest per annum, payable semi-annually at the Chemical National Bank of New York, in the State of New York.

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

S. S. Page, Judge, presiding. In connection with this case see the following and related ease of Jaequat v. Bachman. Peter Kennell died testate on the 3d day of November, 1885, leaving a wife, but no children. By his last will and testament he gave and bequeathed to his wife, Barbara Kennell, all his personal property, and devised to her certain town lots in fee, and a certain tract of land containing eighty acres, for life.

<p>Wills—Devise of Lands for Years—Death of Devisee,</p> <p>A devise of lands to one to have, use and hold for a certain number of years succeeding the death of the testator, creates an absolute estate for years or chattel real, which passes to the personal representatives of the devisee.</p>

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

<p>Municipal Corporations—Judicial Notice—Defective Sidewalk—Personal Injury—Constructive Notice—Variance—Damages—Whether Excessive.</p> <p>1. The courts of this State take judicial notice of the existence of all villages and cities organized under the general incorporation act.</p> <p>2. In an action of tort the plaintiff is only required to prove sufficient of the allegations contained in the declaration to show a cause of action.</p> <p>3. In an action against a municipal corporation to recover damages for a personal injur)' caused by a defective sidewalk, it is held: That there is no variance between the declaration and the proofs; that the defendant was chargeable with constructive notice of defects in the sidewalk in question; that there was no substantial error in the instructions; and that the damages were not so excessive as to require a reversal.</p>

<p>In ebbob to the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Principal and Surety—Extension of Note—Consideration—Payment of Interest Due—Evidence—Conflict of—Instructions—Error without Prejudice.</p> <p>1. An agreement extending a promissory note, to effect the release of the surety, must be without his knowledge and ‘consent, and must be based upon and supported by a new consideration. The payment of intere st already due is insufficient.</p> <p>2. In order to release a surety, the agreement for an extension need not be in express terms.</p> <p>3. An improper instruction, which clearly did not and could not work an injury to the appellant, is not sufficient ground for reversal.</p>

William Bbown, Judge, presiding. This is an action of assumpsit The declaration consists of the, common counts. The pleas are: 1st. The general issue. 2d. Discharge in bankruptcy. Replications to second plea: 1st. That cause of action accrued subsequent to adjudication of bankruptcy. 2d. That cause of action was not provable in bankruptcy. 3d. That defendant was not discharged in bankruptcy. 4th.

John J. Glenn, Judge, presiding. A jury was waived in this ease, and the cause was submitted to the Circuit Court upon the following agreed state of facts : “ It is hereby agreed by counsel for plaintiff and defendant that one James Smith, who was and had been in the employ of Mr. Abbott asa farmvlaborer in Henry County, Illinois, for about one week, was, on or about September, 1867, arrested in said county upon the charge of an assault to commit a rape.

William Brown, Judge, presiding. The Marseilles Manufacturing Company replevied from the Rockford Plow Company a corn sheller and horse power, and fixtures; and on trial in the Winnebago Circuit Court without a jury the issues were found and judgment rendered for the defendant, and a writ of retorno habendo awarded.

<p>Fire Insurance—Mortgage Clause—Inconsistent Provisions—Foreclose ure—Change of Interest as a Defense.</p> <p>1. Where mortgaged property is insured, while involved in litigation and after the commencement of foreclosure proceedings, for the benefit of (he mortgagee and his assigns, and a loss occurs after the foreclosure sale, the insurer can not defend on the ground of change of interest or ownership of the property.</p> <p>2. Where there is a manifest inconsistency between the provisions of the policy and the mortgage clause, as applied to the situation when the policy was issued, the provisions of the mortgage clause will control.</p>

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

<p>Fraud—Railway Official—Special Rates—Contract to Share Profits, Void.</p> <p>An agreement between a railroad official and another to divide the profits on a contract, to be secured by the latter, to furnish materials for a public improvment, the only service rendered by the former being to allow the latter lower freight rates than he demanded of others, is void as against public policy. Such a contract will not support an action to recover a share of the profits realized.</p>

<p>Administration—Dower and Homestead—Death of Widow—Partition— Bill of Interpleader by Judgment Creditor—Laches—Sufficiency of Judg~ ment. .</p> <p>Upon a bill filed by certain heirs for the partition of premises which had been held by the widow as her dower and homestead, it is held: That a judgment creditor of the ancestor may maintain a bill of interpleader in his own name to enforce his claim; that there was no laches, although the delay in enforcing the judgment was about thirteen years; and that the judgment is substantially good when attacked in a collateral proceeding.</p>

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

<p>Trover—Parties—Landlord's Statutory Lien—Right of Possession.</p> <p>The landlord, merely by virtue of the statutory lien on a crop of grain produced by his tenant, has no such right of possession as is required to support an action of; trover against a purchaser.from the tenant.</p>

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

<p>Fire Insurance—Increase of Bislc—Question for Jury—Estoppel—OverInsurance—Instructions.</p> <p>1. Where an insurance company, knowing of a change to which it might ■have objected and for which it might have canceled the policy, has remained silent and retained the premium, it is estopped from setting up the change as a defense.</p> <p>2. In the case presented, the defendant’s claim of over-insurance is not supported by the evidence.</p> <p>3. Where instructions taken together are free from substantial error, the fact that one of them is not entirely accurate is not open to complaint.</p>

<p>Accident Insurance—Notice of Assessment—By-Laws—Instructions.</p> <p>In an action for indemnity under a certificate issued by an accident association, it is held: That the plaintiff was bound by the by-laws of the association; and that notice of an assessment sent by mail to the plaintiff’s last given address was sufficient under such by-laws, although it was not, in fact, received.</p>

<p>Bastardy—Judgment—Defeet in Form of—Bond—Costs.</p> <p>A judgment in the Circuit Court in a bastardy proceeding affirming that of the County Court, and remitting the case to that court for execution, is erroneous in form.</p>

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

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

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

<p>Trespass—Evidence—Error ivithout Prejudice.</p> <p>• In an action of trespass, it is held: That upon the evidence properly admitted the verdict for the defendant was clearly right; and that (he errors, if any, in the rulings of the court below, worked no injustice to the appellant.</p>

<p>Administration—Order of Distribution—Sow Enforced, -Second Order —Secs. 114 and 115, Chap. 3, B. S.</p> <p>1. Where the County Court, in the administration of an estate, has entered an order of distribution, it has no authority, even after many years, to make another order adding interest to a claim included in the original order.</p> <p>2. Proceedings for the enforcement of an order of distribution should be made under Sec. 115, Chap. 3, R. S. The term “ settlement,1 2'as used in Sec. 114, refers to an accounting to ascertain the condition of the estate that the order for distribution may follow.</p>

1st error to the Circuit Court of Morgan County; the Hon. Cyrus Euler, Judge, presiding. Held: one by Mrs. Mary J. Adams and the other by William Bussell, and secured by a vendor’s lien on the real estate of the partnership of Ashelby & Company, were assumed by Charles L. Ives when he entered into the partnership, and should be paid by his executrix. 2.

<p>Fire Insurance—Waiver of Notice of Loss—Payment of Premium—• Note—Evidence—Question for Jury—Agency—Distinct Defenses—Error without Prejudice,</p> <p>L Upon a second appeal this court- will not consider questions passed upon at the former hearing.</p> <p>2. The collection by an insurance company, after a loss, of a note given for part of the premium, is not a waiver of the proof of loss required by the policy.</p> <p>3. In the case presented, it is held: That the question whether its adjuster made certain declarations of the company’s intentions not to pay the loss whatever might be proved, was for the jury, the evidence being conflicting; that the statement by the plaintiff in her application, as to the use of the house, was by agreement made material; and that the knowledge of the local agent as to the currency of certain rumors concerning the use of the property was not binding on the defendant.</p>

<p>Action on Note Alleged to be Lost—Payment—Conflict of Evidence— Question for Jury—Instructions.</p> <p>1. Where the evidence is sharply conflicting this court will not interfere with the verdict of the jury.</p> <p>2. It is proper to refuse an instruction which is practically identical with another which is given.</p> <p>3. In an action on a promissory note alleged to be lost, it is held: That a question whether the note was paid was for the jury, the evidence being conflicting; that the defendant was justified in paying the note, if presented by a third person properly indorsed by the payee; and that the element of good faith in making payment was not necessary in an instruction touching the question of payment,</p>

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

<p>Raih-oad—Construction—Liability for Trespasses of Contractors—Master and Servant—Evidence—Instructions.</p> <p>1. A railroad company is liable for the trespasses committed by contractors who have undertaken to construct its road on its behalf.</p> <p>2. In an action of trespass to recover damages for a wrongful entry by the servants of the defendant railway company upon the plaintiff’s premises for the construction of its road, it is held: That the evidence shows that the persons actually committing the trespasses complained of, were, as to tho plaintiff, servants of the defendant company and therein acted as such in good faith and in the line of their employment; that it was unnecessary to show in the first instance the particular contract, or that there was an express contract between the railway company and those acting on its behalf; that it was sufficient to show that they undertook to construct the road for the company; that the declarations of a director are binding on the companj-; that it was immaterial to the plaintiff’s prima facie case whether his land was on the line of the road as shown by the map of the line or any variation of it duly ordered; and that the president of the company was properly found to be personally liable.</p>

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

<p>Replevin&emdash;Demand&emdash;Evidence&emdash;Second Appeal.</p> <p>An action of replevin may he brought against one whose possession is wrongful, without previous demand.</p>

<p>Action on Replevin Bond—Attorney's Fees—Instructions—Offer to Return Part of Property.</p> <p>1. In an action on a replevin bond containing a condition “ for the payment of all costs and damages occasioned by the wrongful suing out ” of the writ, attorney’s fees may be recovered.</p> <p>2. The plaintiff in a replevin suit is bound to accept an offer to return a substantial part of the property replevied.</p>

<p>Drainage—Assessment of Damages for Land Taken—Service of Justice’s Notice—Jurisdiction—Certiorari.</p> <p>A return showing that the service of a notice issued by a Justice under the Drainage Act. in a proceeding to assess damages for land taken for a ditch, was by the officer and land owner, each reading it in part, is insufficient to give the Justice jurisdiction.</p>

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

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

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

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

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

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

<p>Partnership—Bill of Mortgagee of a Partner’s Interest for an Accounting—Judgments—Estoppel—1lent.</p> <p>Upon a bill for an accounting and other relief, filed by the mortgagee of a partner’s interest in a livery and stock business, who also held by purchase certain judgments under which a levy had been made on certain interests, it is held: That the complainant is entitled to share in the entire assets subject to the debts of the firm, although the executions were not levied on all of the firm’s property; that the appellant, who was one of the partners, is estopped from setting up a certain contingent claim against the interest in question, because of representations made by him as to the value of such interest at the time of the complainant’s purchase; and that the complainant is not chargeable with rent for the stable pending this litigation.</p>

<p>Trespass—Highway—Review of Evidence — Instructions—Excessive Number.</p> <p>In am action of trespass, the defense being that the locus in qiio was a highway, it is held: That the verdict for the defendants is contrary to the evidence; and that the iastruetioms were too numerous.</p>

<p>Negotiable Instruments—Note—Consideration—Wrongful Transfer— Action by Surety against Payee—Evidence.</p> <p>In am action against the payee of a note to recover the amount which the plaintiff as surety had been required to pay thereon to the holder to whom it is alleged to have been wrongfully transferred by the defendant In violation of an agreement, this court declines to interfere with the verdict for the plaintiff, such verdict being fully warranted by the evidence.</p>

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

<p>Replevin—Pledge by Borrower—Ratification—Instructions—See. Qhap. 82, R. S.—Jurisdiction of Justice.</p> <p>In an action of replevin to recover a horse which was pledged to the defendant by the brother of the plaintiff, to whom it had been loaned, it in held: That the hypothesis of ratification contained in the instructions was without foundation in the evidence; that a lien for charges due for keeping a horse can only arise under Sec. 49, Chap. 82, R. S., in favor of one who has actually “ kept ” it; that the borrower of the horse was not clothed with such indicia of ownership as would affect the ow.ner’s right: and that the defendant can not now question the jurisdiction of the Justice of the Peace before whom the action was brought.</p>

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

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

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

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

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

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

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

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

<p>In error to the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.</p>

<p>Malicious Prosecution—Second Appeal—Reversal.</p> <p>Upon a second appeal, in an action for malicious prosecution, this court reverses the judgment for the plaintiff, the evidence being substantially the same as that which was held insufficient to sustain the former judgment for the plaintiff.</p>

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

<p>Bailroads—Personal Injury—Highway Crossing—Obstructions—Bate of Spieed—Ordinance—Instructions—Contributory Negligence.</p> <p>1. In an action, against a railroad company to recover damages for an injury received at a highway crossing, it is held: That the verdict for the plaintiff is sustained by the evidence; that instructions touching the growth of trees and a hedge on the defendant’s right of way, so as to obstruct the view of the crossing in question, and with reference to compliance with an ordinance as to the rate of' speed, were properly given, and that an instruction to the effect that certain facts made out a case of negligence, was properly refused.</p> <p>2. It would be improper for the court to instruct the jury as an absolute proposition of law, equally applicable in all cases and under all circumstances, that one attempting to cross a railroad track must first stop and listen to see if there be an approaching train. It is for the jury to determine from the facts of the particular case whether the plaintiff was guilty of negligence.</p>

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

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

<p>Schools—Alleged Wrongful Discharge, of Teacher—Contract—61 Satisfaction "—Good Faith—T 49, Chap. 122, Starr & G. III. Stat.</p> <p>In an action by a school teacher to recover damages for an alleged wrongful discharge under a contract to teach for a specified time, “ provided he gave satisfaction,” it is held: That, by the special provision in the contract, the Directors reserved the right to determine what was required to give satisfaction, not limited by the provisions of the statute, but only by the obligation so to determine in good faith and without passion, prejudice or caprice; and that the question of how serious plaintiff's faults were, can not be considered, except as bearing upon the question of good faith.</p>

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

<p>Sill of Exceptions—Omission of Evidence—Presumption.</p> <p>Where the bill of exceptions does not contain all the evidence, it will be presumed that the evidence was sufficient to support the finding.</p>

J. A. Creighton, Judge, presiding. . This was a bill in chancery filed by the appellee against the appellants.

<p>Appeal from the Circuit Court of Green County; the Hon. G. W- IIerdman, Judge, presiding.</p>

<p>Personal Injury to Boy—Instructions—Comparative Negligence.</p> <p>In an action to recover damages for a personal injury, it is error to instruct the jury that the plaintiff may recover, although he did not exercise all such care and caution for his own safety as might have been expected, under the circumstances, from one of his age and experience.</p>

<p>Mechanic's Lien—Contract to Furnish Lumber—Time—Parties— Amendments to Petition—Insolvency—Assignment of Part of Insolvent's Property to Apply on Particular Debt.</p> <p>1. In the absence of an express contract limiting the time in which to furnish materials within three years, a mechanic’s lien is not created in favor of one who furnishes materials unless they are, in fact, furnished within one year.</p> <p>2. Suit is begun as to parties brought in by amendment to a petition for a mechanic’s lien at the time of such amendment.</p> <p>3. The act concerning voluntary assignments does not oblige every insolvent debtor to make a general assignment in conformity with its provisions, in order to appropriate his estate to the payment of a particular debt, nor prevent his preference of á particular creditor by any means that were previously lawful, excepting only a general assignment for the benefit . of creditors.</p> <p>4. In the case presented, it is held: That the evidence does not show two distinct contracts; that as against a creditor and its representatives brought in by amendments to the petition, no lien can be enforced unless the last payment for materials became due within six months before such amendments were made; and that the conveyance of the property in question to trustees to be applied on a particular debt, was not within the act concerning voluntary assignments.</p> <p>Note.—E. D. 0. Haines v. James E. Chandler. Pleasants, J. This was a petition by appellant for a lien for lumber furnished for the erection of the Normal College. The case is substantially like the above case of Haines v. Chandler, and will be disposed of in like manner.</p>

<p>Right of Property in a Horse—Trial of—Agreed Statement of Facts— Estoppel—Judgment—Surplusage.</p> <p>Upon appeal from a judgment rendered in a trial of the right of property in a horse held under execution, it is held: That a notice which was not on file at the commencement of the trial in the court below, can not be considered under the agreed statement of facts; that the claimant was estopped from setting up a claim to the horse in question; and that the part of the judgment awarding a retorno was surplusage and may be disregarded.</p>

<p>Administration—Conveyance of Distributive Share—Reservation of Note—Interest.</p> <p>The reservation of a certain note, in a conveyance by a legatee of his interest in an estate, is construed by this court to include both principal and interest.</p>

<p>Mortgages—Foreclosure—Stipulation—Costs.</p> <p>In a foreclosure proceeding, it is held: That a stipulation for an early hearing on condition that no receiver should be appointed, and that the possession of the mortgagor should not be disturbed until the time of redemption expired, was a proper one for counsel to make; and that it should have been enforced by the court.</p>

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

<p>Appeal from the Circuit Court of Jersey County; the Hon. Gr. W. Herman, Judge, presiding.</p>

<p>Action on Ufóte—Replication—Evidence.</p> <p>In an action on a promissory note, it is held: That a demurrer to the replication was properly sustained, as the plea showed a defense not met by it; and that the evidence sustains the verdict for the defendant,</p>

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

C. C. Boggs, Judge, presiding. On July 15, 1885, Miller filed his bill against Cook and Tanner, alleging complainant had an interest in 16Of feet off of the west end of lot 48, block 7, in Mt. Vernon, Illinois, as mortgagee of D. 0.

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

<p>In error to the Circuit Court of Fayette County; the Hon. Jesse J. Phillips, Judge, presiding.</p>

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

<p>Personal Injuries — Instructions—Conflict of Evidence—Question for Jury—Damages— Whether Excessive.</p> <p>1. It is proper to refuse an instruction which correctly states rules of law applicable to the case, when such rules are stated in another instruction given at the instance of the same party.</p> <p>2. Where the evidence is conflicting and three juries have found the facts the same way, this court will not interfere upon a mere question of fact, unless convinced that the verdict is the result of passion or prejudice.</p> <p>8. Where pain and suffering are recognized elements in the assessment of damages for personal injuries, such assessment is within the sound judgment of the jury under the instructions of the court.</p> <p>4. In the case presented, it is held: That nothing appears to show that the amount of the damages was not fixed by the jury upon a fair consideration of the testimony; and that the verdict for $6,000 is not so excessive as to require a reversal.</p>

Amos Watts, Judge, presiding. The First National Bank of Centraba was organized on the 23d day of March, 1865, with a capital stock of §80,000, divided into 800 shares of §100 each, in accordance with the National Bank Act. After its organization it did a regular hanking business until it went into voluntary liquidation about one month prior to the expiration of its charter.

Clair County; the Hon. Amos Watts, Judge, presiding. April 20, 1886, the defendant in error, Flannigan, was appointed City Treasurer of the City of East St. Louis, and on the same day executed his official bond, with his co-defendants as sureties, in the sum of §100,000, which was duly approved by the City Council.

<p>Master and Servant—Dufy of Master—-Reasonable Care—Liability for Causing Death of Servant—Parties Defendant—Joint Liability—Conflict of Evidence—Questions for Jury—Corporations—Stockholder as Witness-Competency of-—Damages—Whether Excessive.</p> <p>1. It is the duty of the master to use reasonable care to protect his servant from extra hazard. He should not direct the servant to work in a place which he knows, or might by reasonable care and diligence have discovered to be dangerous.</p> <p>2. In the case presented, it was the duty of the defendant company, in the construction o£ its refrigerator plant, to use reasonable care to furnish a support sufficiently strong to bear the weight of a certain tank when filled. The servant on his part assumed only those risks incident to his employment, of which he had express or implied notice.</p> <p>3. Where tvzo corporations are co-operating in the erection of a structure, and their successive concurrent negligence causes the death of an employe of one of them, they are jointly liable.</p> <p>4. In an action against a corporation to recover damages for causing the death of the plaintiff’s intestate, a stockholder of the defendant corporation is incompetent as a witness as to events prior to the death of the plaintiff’s intestate.</p> <p>5. Where the evidence is conflicting in regard to material matters, it is the duty and province of the jury to determine the weight and credit to be given the testimony of the several witnesses.</p> <p>6. In cases like the one presented, it is the peculiar province of thé jury to estimate and award, under the evidence introduced, the amount of damages that plaintiff should recover.</p>

<p>Schools—Division of District—Apportionment of Pupils—Powers of Board—Mandamus—Evidence—Instructions—Bill of Exceptions—■Jury.</p> <p>1. It is within the power of a Board of Education to lay off and divide the district into sub-districts, establish therein schools of different grades and apportion pupils to "the several schools.</p> <p>2. If, in the exercise of these powers, the rules and orders made are reasonable, necessary and such as will best afford all children of school age within the district the benefits of proper instruction, they will be sustained by the courts.</p> <p>3. Upon a petition for mandamus to compel a Board of Education to enroll as pupils in a certain school within the district, the children of the relator, who resided in a sub-district of the same district, it is held: That there was no substantial error in admitting the evidence of a certain witness and refusing to admit a letter of the State Superintendent, nor in giving certain instructions; that objections to remarks of counsel not contained in the bill of exceptions can not be considered; that the children of relator were properly required to attend the school in the sub-district in which he resided; and that he acquired no right to send them to the other school by placing them to board near it and sending them for a few days without the knowledge or consent of the Board.</p>

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

<p>In error to the Circuit Court uf Jackson Comity; the lion. Oliver A. Harker, Judge, presiding.</p>

<p>Bailroads—-Highway Crossing—Approaches— Maintenance of—Personal Injury—Evidence—Instructions—Estoppel.</p> <p>In an action against a railroad company to recover damages for persona! injuries, alleged to have been received because of the defective condition of an approach to a highway crossing, it is held: That the defendant is estopped from denying that the crossing in question was at the intersection of its road with a public highway; that evidence touching the original construction and subsequent condition of the crossing in question and approaches thereto, and concerning repairs made by the defendant after the injury occurred, were properly admitted; and that there was no error in modifying and refusing instructions.</p>

<p>In error to the City Court of East St. Louis; the Hon. B. II. Canky, J udge, presiding.</p>

<p>Replevin—Action on Bond—Measure of Damages—Vindictive Damages —Attorney’s Fees—Depreciation in Value—Good Will—Pleading—Surplusage.</p> <p>1. Vindictive and punitive damages are not recoverable in a suit on a replevin bond for a breach of the condition thereof.</p> <p>2. The actual damages sustained by the defendant in replevin by reason of the wrongful suing out of the writ, are the only damages which can be properly averred and recovered in such an action.</p> <p>3. Attorney’s fees paid in defending the replevin" suit and damages arising from the depreciation in the value of the property during its wrongful detention, may be recovered. But damages to the good will of the business of the defendant in replevin, can not be so recovered.</p> <p>4. Where the declaration does not aver and claim specific damages for each of the several injuries mentioned, what is said as to such injuries may be rejected as surplusage.</p>

Clair County; the Hon. Wat. H. Sjxyder, Judge, presiding. This proceeding was instituted to compel appellee, as Supervisor of the village of Cahokia, to pay a judgment alleged to have been recovered against said village by the relator, whose petition is as follows: “ James L. Brackett, petitioner, represents that on the 6tlx day of October, 1886, he recovered a judgment against the village of Cahokia in said county, for the sum of twelve hundred and thirty dollars, in the…

<p>Appeal from the County Court of Crawford County; the Hon. Joseph B. Cbowley, Judge, presiding.</p>

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

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

<p>Sales—Failure to Deliver—Measure of Damages—Set-off—Conflict of Evidence —Question for Jury.</p> <p>1. The measure of damages for the breach of a contract to deliver personal property, is the difference between the contract price and -the market price at the time of the breach.</p> <p>2. Where the article can not be obtained in the market, the measure of damages is the actual loss sustained by the vendee. If he has sold the article purchased to another, his measure of damages is the difference between the agreed prices of purchase and re-sale.</p> <p>3. Where the evidence is conflicting, this court will not interfere with the verdict of the jury.</p>

<p>Husband and Wife—Separate Maintenance—Discretion.</p> <p>In action for separate maintenance, the chancellor has a large discretion, ■which is properly exercised in discouraging the continuation of a separation between husband and wife, where the cause of such separation is trivial.</p>

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

<p>Mechanic's Lien—Express Contract—Statutory Limitation—Services of Architect.</p> <p>A petition fora mechanic’s lien, when based upon an express con. tract, will not be sustained, unless the contract alleged specifics a time for the completion of the work or furnishing of materials within the time limited by the statute.</p>

Gwy-cth Gabnett, Judge, presiding. In 1866, A. Nisbefc Turnbull, being the owner in fee of certain parcels of land in the City of Chicago, by an indenture of lease demised to Jamos H., George S. and Chauneey T. Bowen, five lots by the following description: “Lots numbered one (1), two (2), three (3), four (4) and five (5), in B. S. Mofris’ subdivision of original lots two (2), three (3) and the north one quarter (1) of six (6), in block two (2), in fractional section fifteen…

<p>Negotiable Instruments—Notes—Plea of Bankruptcy—New Promise— Variance—Practice—Conflict of Evidence.</p> <p>1. In an action on a promissory note a plea setting up a discharge in bankruptcy admits the averments of the declaration, and the question of variance between the declaration and the note, read in evidence, is not presented.</p> <p>2. The question whether there is such a variance can not be first raised in this court.</p> <p>3. In an action on a note by the payee, indorsements may he disregarded in describing the note.</p>

<p>BUI of Exceptions—Instructions—Fire Insurance—Conflict of Evidence.</p> <p>1. Instructions to the jury, not incorporated in the bill of exceptions, but copied by the clerk into the transcript of the record, can not be considered by this court on appeal.</p> <p>2. Where the evidence is conflicting and the record affords no reason for supposing that the jury have not reached a just conclusion, this court will not interfere with their verdict.</p>

<p>Mechanic's Lien—Payment—•Conflict of Evidence.</p> <p>Upon a petition by a sub-contractor for a mechanic’s lien, this court affirms the decree for the petitioner, the evidence being conflicting but sufficient to sustain the decree.</p>

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

<p>Life Insurance—Action onPolicyby Administratrix—Coroner's Inquest — Verdict and Evidence—Admissibility of Admissions—Witness—Impeachment.</p> <p>1. In an action by an administratrix against an insurance company to recover the amount of an insurance policy on the life of the plaintiff's intestate, a certified copy of the verdict and evidence at the Coroner’s inquest is inadmissible.</p> <p>. 2. Admissions made by the plaintiff while acting in her own right are Incompetent against her as administratrix.</p> <p>3. The delivery to an insurance company of a copy of the verdict and evidence at the Coroner’s inquest as part of the preliminary proofs of death, to comply with a condition of the policy, is merely an admission that an inquest was held and that the paper delivered is a copy of the verdict and evidence appearing of record. It is not an admission that such verdict is true, that the evidence was given, or that the witnesses stated the facts correctly.</p> <p>4. Where a party has called and examined the adverse party as his own witness, he is precluded from introducing evidence for the mere purpose of impeachment.</p>

<p>Guardian and Ward—Final Report and Account—This Court Can Not Allow Counsel Fees. ■</p> <p>1. This court affirms the judgment of the Circuit Court in the matter of a guardian’s final report and account, without going into a detailed discussion of the evidence, which is voluminous.</p> <p>2. The allowance of counsel fees, even in matters pending before it, is not within the powers conferred upon this court.</p>

John P. Altgeld, Judge, presiding. This was a suit by appellees against the insurance company, appellant, upon a certificate bearing date November 20, 1884, of marine insurance, in the sum of $4,000, upon the hull of the tug Alice E. Getty, subject to the conditions of the company’s general “ Hull Policy,” whereby the defendant insured the plaintiffs on said tug in said sum from November 19 to November 30, 1884.

<p>Contract to Secure Advertising—Breach—Measure of Damages—Estimate of Profits—Evidence—Set-off.</p> <p>1. In an action to recover damages for the breach of a contract, the plaintiff must produce evidence from which the jury can find the extent of his injury. This rule excludes all such elements of injury as are incapable of being ascertained with reasonable certainty by the usual rules of evidence.</p> <p>2. In an action against a solicitor of advertisements to recover damages for a breach of a contract to solicit advertising during a certain period, it is held: That an estimate of probable profits for the remainder of the term, based on proof of the profits for a part thereof, is speculative and insufficient as a basis for an estimate of damages; that the plaintiff’s opinion or estimate of the value of the defendant’s services was properly excluded; that the plaintiff failed to show a right to recover more than nominal damages; and that the verdict for defendant for the amount of the set-off claimed was proper.</p> <p>3. An error resulting in no injury to the appellant is insufficient as ground for a new trial.</p>

<p>Practice—Bill of Exceptions.</p> <p>Where the bill of exceptions fails to show that any, motion for a new trial was made, or that any instructions were given or refused, this court will not consider objections touching the weight of evidence and the refusal of instructions asked.</p>

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

<p>Practice—Evidence.</p> <p>In an action on a lease and assignment thereof, if the defendant has filed no affidavit denying their execution, such instruments are admissible in evidence without proof of such execution.</p>

<p>Railroads—Ejection of Passenger—Action for Damages—Question for Jury—Damages—Whether Excessive.</p> <p>1. In an action against a railroad company to recover damages by one who was rightfully on defendant’s train and was ejected by its servants upon his refusal to obey the conductor’s command to leave the train, it is a question for the jury whether the force used in so ejecting him was unjustifiably violent and excessive and whether such injuries as he sustained thereby were wantonly and maliciously inflicted.</p> <p>2. In the case presented, this court holds that a verdict for $7,000 for plaintiff is not so large as to require a reversal on the ground that there was manifest passion and prejudice on the part of the jury.</p>

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

<p>Practice.—Decree—Evidence—When to he Preserved in Record—Bill Qujet Title.</p> <p>Under the rules of chancery practice in this State the party in whose favo the decree grants relief, must preserve the evidence in the record, unlessr the decree recites the facts proved on the hearing.</p>

<p>Railroads-—Personal Injuries—Evidence—Instructions—Bill of Exceptions.</p> <p>1. Instructions not incorporated in the bill of exceptions can not be considered by this court.</p> <p>2. In an action against a railroad company to recover damages for per. sonal injuries, this court declines to interfere with the verdict for plaintiff-</p>

Gwyot Gaknett, Judge, presiding. ¡ Rice, Friedman & Maxwell Company brought a creditors’ hill against David Goldberg, the judgment debtor, Flora Goldberg, Mathan Heufeldt and Canute R. Matson, Sheriff, and by said bill sought to have certain judgments, one in favor of said Flora and another in favor of said Hathan, entered up by confession against said David Goldberg, set aside and declared void as to plaintiff, a creditor of said David.

Eichajbd.S. Tuthill, Judge, presiding. This is an appeal from an order entered by the court upon an intervening petition filed by appellee in the suit of the South Park Commissioners against Charles B. Phillips et al. The suit was in the nature of an interpleader, for the purpose of settling and confirming title in the complainants of certain land described in the bill which it was claimed Phillips had contracted to convey to complainants, and in which Mrs. Phillips claimed…

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

<p>Sales—Auction—Action against Auctioneer—Mistahe—EoiSence—Question for Jury.</p> <p>1. An action lies against an auctioneer, who has assumed the delivery of goods sold by him, for failure to deliver.</p> <p>2. In the case presented, it was a question of fact for the jury, whether the defendants undertook to deliver the goods in question.</p>

<p>Railroads—Personal Injury—Negligence—Question for Jury—Bill of Exceptions—Instructions,</p> <p>1. In an action against a railroad company to recover damages for a personal injury, resulting in the loss of ail eye, this court declines to interfere with the verdict for the plaintiff, the evidence being conflicting.</p> <p>2. The question of negligence is a question of fact for the jury, to be determined by them in view of all the facts and circumstances disclosed by the evidence.</p> <p>3. Instructions not contained in the bill of exceptions can not be considered by this court.</p> <p>4. Where the original bill of exceptions is brought to this court, directions therein to the clerk of the court below to insert instructions and their appearance in the transcript, is insufficient.</p>

<p>Money Had and Received—Transfer of Check by Equitable Owner.</p> <p>An action for money had and received, brought by one bank against another, does not lie to recover the amount paid on a check drawn against the plaintiff and transferred to the defendant by the equitable owner after indorsing the name of the payee.</p>

<p>Personal Injuries—Fellow Servant—Ineompeteneij—Evidence—Instructions.</p> <p>1. A servant can not recover damages from his master for an injury caused by the negligence of a fellow servant.</p> <p>2. In the case presented, it is held: That the evidence touching the question of the incompetency and unskillfulness of the plaintiS’s fellow servant clearly preponderates in favor of the defendant; and that an instruction touching the negligence of such fellow servant is erroneous. ■</p>

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

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

<p>Appeal from the Criminal Court of Cook County; the Hon. Abba E. Watebmar, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Gwrra G-arnett, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Bichabd S. Tuthill, Judge, presiding.</p>

<p>Municipal Corporations—Special Tax on Insurance Companies— license—Police Power.</p> <p>A municipal corporation, Incorporated under the general law, has no authority to impose a special license tax on foreign insurance companies.</p>

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

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

Biohaeb Pbebtobegast, Judge, presiding. Suit was commenced by attachment, by appellee, to recover against one Charles H. Choate, for certain rent claimed to he due from him. Appellant and others were summoned as garnishees, and interrogatories filed.