Volume 28 — Illinois Appellate Court Reports

Alfred Sample, Judge, presiding. This was certiorari commenced in the Circuit Court on the petition of appellant filed March 17, 18S7, and the writ was dated March 24, 1887, and return of service April 2, 1887.

<p>Appeal from the Circuit Court of Winnebago County; the Hon. O. H. Horton, Judge, presiding.</p>

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

William Brown, Judge, presiding. The appellant filed his bill in equity in the court below? seeking to enjoin the appellees from obstructing twenty feet in width south and east of section 16, T. 28, B. 1, west 4 P. M., in Jo Daviess county, and from interfering with him,his agents, etc., from using and improving said strip, or removing obstructions therefrom so that it may be safe to travel, or from in any manner interfering with the free enjoyment of said road as may be for…

<p>Promissory Note — Attorney’s Fees — Costs—Pleading and Practice— Pleas in Abatement — Usury.</p> <p>1. The matter of allowing new and independent pleas, presenting new defenses, is addressed to the discretion of the trial court, and this court will not interfere, unless it appears that such discretion has been abused.</p> <p>2. After a plea 'in bar to an action, the defendant can not plead in abatement, unless for new matter arising after the commencement of the suit.</p> <p>8. Pleas in abatement must be verified by affidavit.</p> <p>4. An agreement for the payment of attorney's fees will not make usurious an otherwise valid contract or obligation, and it makes no difference whether the same was to be a certain sum, a reasonable sum, or a sum fixed at a certain percentage of the amount of either the debt or judgment.</p>

<p>Husband and Wife — Separate Maintenance — Extent of Allowance — Evidence — Threats—Receipt of Compromising Letters.</p> <p>Upon a bill for separate maintenance it is held: That the evidence sustains the decree; and that an allowance of $20 per month is not excessive, the husband being worth from $15,000 to $20,000.</p>

<p>Mortgages — Trust Deed — Foreclosure—Defenses—Covenants—Breaches — Estoppel—dioses in Action, Fot Assignable — Cross-bill—Solicitor's Fee.</p> <p>1. In proceedings to foreclose a mortgage brought by an assignee before maturity of the notes secured thereby, the mortgagor may interpose any defense of which he might have availed himself as against the payee of the notes.</p> <p>2. A mortgagor in possession can not defend a bill to foreclose a mortgage given to secure purchase money on the ground of defects in the title of his grantor. If such title is defective, he must rely for relief on the covenants in the deed to himself, or such other contract as he may have with the grantor.</p> <p>8. To constitute a breach of either the covenant of warranty or that for quiet enjoyment there must be a union of ouster or eviction and lawful and paramount title. Otherwise there is no right of action on the covenants or ground for relief in a court of equity, in proceedings to foreclose a mortgage given to secure purchase money.</p> <p>4. The covenants of warranty and for quiet enjoyment when broken by actual ouster or eviction under paramount title, no longer run with the land, and a subsequent grantee has no right of action thereon.</p> <p>5. In the case presented, it is held: That, as between the parties, the original deed in question must be taken to be an absolute conveyance; that tlie breaches of the covenants therein, if any, were choses in action which did not pass to the defendant by subsequent conveyances; that the evidence does not show a.n adverse possession under a paramount title; and that solicitor’s fees were properly allowed.</p>

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

T. M. Shaw, Judge, presiding. ’ The facts presented by this record are as follows: Alvah Moffit and wife, on May 24, 1867, conveyed, by warranty deed to John Thornton, for the consideration of §400, the following described parcel of land, to wit: “A part of the E. of the 27. E. \ of Sec. 13, town 8, 27. of E. 7, E. of 4th P. M.; beginning at the 27.

<p>Practice — Pules of Court — Bill of Exceptions — Motion to Strike from Record.</p> <p>1. Rules of court entered of record become the law of procedure in matters to which they relate until they are rescinded or modified by order of court entered of record. Such rescission or modification can not be made by a judge in vacation.</p> <p>2. Where the time in which to prepare and present a bill of exceptions, by order of the trial court entered of record, .is extended to ■ a day in vacation, under a rule of court providing that in such case the party preparing the bill shall give the opposite party a certain time within which to examine the original or a copy thereof, it is errorjon the part of the trial judge to sign the same until the full time has been accorded for such examination.</p>

<p>Personal Injuries — Railroads—Collision at Highway Crossing — Death of Child — Action for Damages — Questions for Jury — Negligence of Parent —Evidence—Res Grest®.</p> <p>1. It seems that a failure to look in the direction from which a train is expected, upon approaching - a railroad crossing, if such train would be visible to a person so looking, will defeat a recovery for injuries suffered by him from the train in question, although the bell was not rung nor the whistle sounded.</p> <p>2. It is not negligence in a parent to send minor sons of nine and thirteen years with a gentle team upon an errand which requires them to cross a railroad track at an established crossing.</p> <p>3. Evidence as to the speed of the train at the time of the accident is admissible as part of the res gestae.</p> <p>4. The question of damages for causing the death of a child rests in the sound discretion of the jury. In the case presented, a verdict for $1,000 is sustained.</p> <p>5. Evidence as to the financial standing of the father, who sues as administrator for the use of the next of kin, is inadmissible.</p>

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

T. M. Shaw, Judge, presiding. Suit in assumpsit was instituted at the October term, A. D. 1884, in an action on the case by the Chicago, Saint Louis and Western E. E. Co., for the use of the appellees, to recover the value of three of the four cars which form the basis of the present case.

<p>In error to the Circuit Court of Putnam County; the HonS. S. Page, Judge, presiding.</p>

<p>Carriers — Express Companies — “ C. O. D.” — Failure to Deliver or Notify Consignor — Loss by Fire — Liability of Company.</p> <p>1. An express company receiving a package for transportation “ C. 0. D. ” is bound to transmit it to its destination, tender it within a reasonable time to the consignee and demand payment; and in case of non-acceptance and non-payment it is the duty of the company to notify the consignor.</p> <p>2. The neglect by an express company to deliver a package and collect the amount required thereon, and to notify the consignor of such failure, for an entire week, will render the company liable as to the consignor in case of loss by fire.</p>

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

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

<p>Bill to Set Aside Judgment by Confession — Fraudulent Concealment— Estoppel in Pais.</p> <p>The mere failure of a creditor to make public bis possession of judgment notes given to him by his debtor, is not fraudulent, where he does nothing to persuade or influence others to give the debtor credit.</p>

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

<p>Exemptions — Sale under Execution — Double Damages —Verdict—Evidence.</p> <p>1. While a debtor may select articles amounting in value to the exemption to which he is entitled under the statute, he must offer to turn over the balance of his property to satisfy the execution; failing to do this, he can not. recover the statutory penalty merely because his choice was not respected.</p> <p>2. A finding of the court contrary to the decided weight of evidence, is good ground for reversal.</p>

<p>In error to the Circuit Court of Winnebago County; the Hon. O. H. Horton, Judge, presiding.</p>

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

<p>Personal Injuries — Defect in Sidezvallc Built on Private Property■ — ■ Action against Oivner for Damages — Nuisance—Damages—Measure of— Instructions — Comparative Negligence — Landlord and Tenant.</p> <p>1. To the general rule that the landlord is not liable where a third person is injured through a failure to keep in repair premises occupied by a tenant, there are two exceptions: first, when the landlord agrees to keep the premises in repair; second, where the premises were erected with a nuisance upon or connected with them, by means of which the injury com. plained of occurred.</p> <p>2. A person who has made a public sidewalk upon his own premises, can not be heard to say, an injury having occurred through a defect therein, that it was not a public way.</p> <p>3. An unprotected opening in a sidewalk, ten inches wide and five feet long, is a nuisance per se.</p> <p>4. In the case presented, it is held: That the appellant can not complain of an instruction setting forth that, if plaintiff was guilty of some negligence, yet if it was slight and the defendant’s negligence was gross, when compared with each other, the plaintiff might still recover; that an instruction given by the court on its own motion, though in part irrelevant, states correct propositions of law, and did not mislead the jury; and that the court properly refused to give certain instructions for the defendant, prepared on the theory that the landlord would not he liable if the premises were, at the time of the accident, in possession of a tenant.</p> <p>5. In actions to recover damages for personal injuries, there is no inflexible rule as to the measure of damages, except that the recovery is limited to compensation for injury and suffering. What is a proper allowance in a particular case, rests in the sound discretion of the jury, subject to review and correction by the court in case of the abuse of such discretion.</p>

<p>Criminal Conversation — Damages—Evidence—Jurisdiction.</p> <p>1. In an action to recover damages for criminal conversation with the plaintiff’s wife, the marriage may be proved by a copy of the record thereof in a parish register.</p> <p>2. A general objection to the introduction of a copy of a record does not raise the question of its secondary character, or as to its authentication, but only the question of its competency.</p> <p>3. In the case presented, it is held: That the refusal to allow the wife to testify was proper; and that the verdict for the plaintiff is supported by the evidence.</p>

<p>1tTwiicipa~ Corporations-Diversion of' Suiface Water-Title to Land Dumag ed--E,ylcfenee.</p> <p>1. A person having the actual possession of land will be regarded and deemed the true owner ther~of until the contrary is made to appear.</p> <p>2. In a suit to recover damages for an injury occasioned by the wrongful or negligent manner in which work is done on the streets of a city, it is unnecessary to prove that it was done by persons employed by the city, such being the reasonable presumption.</p>

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

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

<p>Beal Estate — Broker—Sale by Owner — Broker’s Commission — When Earned — When Due — Measure of Compensation.</p> <p>1, Where land, in the hands of a broker for sale, is sold by the owner, such broker or agent is entitled to his commission, if the sale was brought about through his efforts.</p> <p>2. Such commission is due when a purchaser is found who buys the property, and the right thereto is not affected by any modification of the terms of payment, or modes of security, or ultimate compliance with the conditions of such sale made between the buyer and seller, different from the terms first given by the seller to the broker.</p> <p>8. In such a case the compensation stipulated in the contract fixes the measure of compensation, without regard to whether it is adequate.</p>

<p>Parent and Child — Illegitimate Child, — Board of — Express Promise to Pay — Adoption—Instruction—Evidence.</p> <p>One who supports and cares for the child of another, treating it as his own, without really adopting it, can not recover for its board, in the absence of an express promise to pay therefor. Liability in such a. case will not. attach until the child has been tendered, or notice given that it will no longer be boarded free of charge.</p>

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

<p>Appeal from the Circuit Court of Carroll County; the lion. William Bbowr, Judge, presiding.</p>

<p>Sales — Contract for Future Delivery — Breach of — Tender—Instructions — Interest—Evidence.</p> <p>1. Where one contracts to deliver personal property in the future, at a certain price, and the vendee agrees to receive and pay for it at such time in accordance with the agreement, but afterward, and before the time arrives for delivery, repudiates the contract and gives the vendor notice of his intention not to perform it, the latter may accept such notice and elect to consider the contract at an end. and sue at once to recover damages for the breach, or he may decline to consider the contract annulled, and demand its performance on the part of the other party.</p> <p>f '2. Where a certain commodity is sold to be delivered in installments, the j failure of the seller to deliver the quantity required as to any installment Ogives the purchaser the power to rescind the entire contract.</p> <p>8, Although the mere formal act of tender or offer to perform on the part of the vendor may be dispensed with where the vendee gives notice that the goods will not be accepted even if tendered, the vendor must be in position to perform if the notice be recalled.</p> <p>4. One can not complain of instructions which, though erroneous, are favorable to himself, nor of a refusal to give an improper instruction.</p> <p>5. In the case presented, evidence as to the amount which the refused wire brought at public auction was properly excluded.</p> <p>6. It seems that goods, when tendered, .must be in condition for immediate delivery, and not subject to any lien for freight, storage, or other charge which it is the duty of the vendor to liquidate.</p>

<p>Appeal from the County Court of Lake County; the Hon. Fbanois E. Olabke, Judge, presiding.</p>

John J. Glenn, Judge, presiding. On the 27th day of May, 1886, the American Central Insurance Company issued tlxe policy of insurance offered in evidence, insuring the dwelling of Lawrence Clarey for the period of one year, the property insured being described in the policy as “ a dwelling house occupied by a tenant.” Ori the 19tli day of April, 1887, at about 10 o’clock p. m., the insured premises were destroyed by fire.

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

<p>Negotiable Instruments — Note—Payment without Surrender — Agency— Negligence — -Amendment—Instructions—Evidence—Notice.</p> <p>1. A promissory note in the hands of a third person can not be affected or incumbered by private independent agreements between the parties thereto.</p> <p>2. It is gross negligence on the part of the maker of a note to pay the same without having it surrendered to him, or being certain that the payment is to the proper party.</p> <p>3. Where one of two innocent parties must suffer loss the one whose negligence caused such loss must bear the same.</p> <p>4. In the case presented, it was improper to allow the defendant to withdraw the general issue and file a special plea of payment, after a different presiding judge at a former term had refused such motion.</p> <p>5. An endeavor to collect from a third person funds wrongfully collected and withheld by him, is no waiver of the right to proceed against the debtor who carelessly and negligently placed them in the hands of such third person.</p> <p>6. An instruction which singles out a single important fact in the case, is improper.</p> <p>7. An agency may be shown by the acts of the parties. The evidence in the case presented does not show that a third person was the agent of the plaintiff to receive payment of the note in question.</p>

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

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

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

<p>Sales — Joint Liability- New Promise — Parties—Amendment.</p> <p>1. This court affirms a judgment for a balance on account of goods sold, on the ground that the defendant was jointly liable with another, and that the evidence shows a new promise within five years to pay the balance due.</p> <p>2. A new party plaintiff may be joined with the original plaintiff, upon an appeal from a justice, after trial has begun in the Circuit Court.</p>

<p>Sales — Refusal to Accept — Question for Jury — Damages.</p> <p>In an action to recover damages for the refusal of the defendant to accept certain carriages and harness, sold and delivered to him under a written contract, it is held: That the verdict for the plaintiff is sustained by the evidence; and that the trial court did not err in entering a judgment on the same, and in refusing a motion for a new trial.</p>

Alfred Sample, Judge, presiding. This was a bastardy proceeding, commenced before a justice of the peace by complaint in writing of Carrie Winkle.

<p>Judgment Note — Instruction—New Trial.</p> <p>1. There is no error in refusing to give an instruction which has no basis in the evidence.</p> <p>2. A refusal to grant a new trial on the ground of newly discovered evidence is proper when the same is merely cumulative and not conclusive.</p>

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

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

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

<p>Fraudulent. Conveyances — Bill to Set Aside — Father and Son — Wages —Express Contract — Preference between Creditors — Amendment—See. 57, Chap. 22, R. S. — Sworn Answers.</p> <p>1. Upon a bill to set aside an alleged fraudulent deed and a mortgage executed from a father to his son, it is held: That the father, being lawfully indebted to his son, might pay him in preference to other creditors; and that, while the testimony creates strong suspicion against the good faith of the transaction, it does not overcome the sworn answers.</p> <p>2. In this State bills, answers and replications may be amended, at any stage of the proceedings, on such terms as the court may impose.</p> <p>8. Where the bill of complaint against two defendants calls for answers under oath, each answer must be overcome by at least two witnesses, or what is equivalent to the testimony of two witnesses.</p>

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

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

<p>Quo Warranto — Eligibility to Office of County Judge — Citizenship— Domicile — Change of- — Art. 6, Sec■ 17, Constitution of Illinois — Evidence.</p> <p>1. To effect a change of domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence within another jurisdiction, coupled with ihe intention of making the last acquired residence a permanent home.</p> <p>2. A husband may go to another State in quest of health for his wife and remain a considerable length of time without losing his residence in this State.</p> <p>3. In a proceeding by quo warranto to test the right and eligibility of the relator to the office of county judge, under Art. 6, Sec. 17, of the Constitution of this State, it is held. That the election and commission of the relator raise a strong presumption of his eligibility; and that the evidence does not overcome this presumption.</p>

<p>Appeal from the City Court of Elgin County; the Hon. A. H. Barry, Judge, presiding.</p>

<p>Pleading — Sufficiency of Plea Charging Fraud. — Public Lands — Entry— Application.</p> <p>1. Pleas charging fraud must state clearly and specifically the facts done 3r omitted which are supposed to constitute such fraud.</p> <p>2. In the case presented, the court below properly sustained a demurrer to the plea to the effect that the money sought to be recovered was advanced to the defendant for performing certain illegal services, there being a failure to state facts involving the parties in any willul fraud.</p>

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

<p>Appeal from the Circuit Court of Livingston County; the lion. R„ J. Pillsihjry, Judge, presiding.</p>

<p>Appeal from and in error to the Circuit Court of La Salle County; the Hon. Celarles Blanohakd, Judge, presiding.</p>

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

<p>Criminal Lata — Appeal—Sec. 21, Chap. 5i, JR. S.</p> <p>1. No appeal lies in criminal cases, a writ of error being the only mode by which such cases can be brought before this court. This rule applies to prosecutions for misdemeanors.</p> <p>2. A prosecution under Sec. 21, Chap. 54, R. S., for rescuing cattle after they had been impounded, is a criminal prosecution.</p>

<p>Judgments — BUI to Vacate — Fraud—Injunction—Practice—Failure to Assign Errors.</p> <p>1. The burden of proof rests upon one who seeks to impeach a judgment and enjoin its collection on the ground of fraud.</p> <p>2. This court declines to interfere with a decree dismissing a bill to vacate a judgment and enjoin its collection, the evidence being sharply conflicting and no errors being assigned on the record.</p>

<p>Disorderly Conduct — Ordinance—Conflict of Evidence — Practice—Improper Remarks by Attorneys.</p> <p>1. In a prosecution under a city ordinance for disorderly conduct, this court declines to interfere with the verdict against the defendant, the evidence being conflicting.</p> <p>2. An appellate court will not reverse a judgment when the evidence of the successful party considered by itself, without contravening evidence, is clearly sufficient to sustain the verdict.</p> <p>3. A verdict will not be set aside for improper conduct on the part of the attorney for the successful party in making statements 'outside of the evidence, where it is plain that no harm has resulted therefrom to the appellant.</p>

<p>National Banks — Reorganization—Special Depo■ its — Loss—Trover— Liahilitg of New Bank — Measure of Damages — Evidence—Demand.</p> <p>1. A national bank may receive special deposits and give receipts therefor.</p> <p>2. In an action to recover from a national bank the value of certain government bonds which had been specially deposited with a national hank which, having gone into liquidation, was succeeded by the defendant bank which had the same name, place of business, books, business, and substantially the same officers, the interest on said bonds having been regularly paid after the reorganization by the defendant until its own suspension, when (he bonds were found to be missing, it is held: That, from the time of the organization of the new bank, the acts and declarations of the cashier within the scope of his authority were the acts and declarations of said bank; that his knowledge in regard to the bonds in question was the knowledge of both banks; that the payment of the installments of interest by the new bank was an admission that the bonds were in its possession; that the court below was warranted in finding that said bonds came into possession of the defendant bank upon its organization; and that the demand made, if any was necessaiy, was.sufficient.</p> <p>3. The measure of damages in an action of trover is the current market value of the property at the time of its conversion with interest until the time of trial; no distinction or exception to this rule is recognized wlrnn the property converted happens to be bonds, and when the demand and refusal either constitute the conversion or afford presumptive evidence of it.</p>

<p>Contracts — Costs of Test Case — Contribution—Limitations—Continuing Agreement — Question for Jury — Partnership.</p> <p>1. The joinder of two or more persons in a single adventure for their mutual advantage does not constitute them copartners in such sense as to oust a court of law of jurisdiction in respec,t thereto.</p> <p>2. Where two persons, as between themselves by parol agreement, are each liable for one half the costs of an extended litigation, the one who is primarily liable as a party may await the enforced payment of the entire costs at the end of such litigation, and then compel the other to contribute his proportion, although more than five years have elapsed since certain of the items became due and payable, the contract being a continuing one.</p> <p>3. In the case presented, the question whether there was a verbal contract for the payment of the expenses of the suit in question, was for the jury, the evidence being conflicting.</p>

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

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

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

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

<p>Sales — Bailment—Conditional Sales — Trover—■Evidence.</p> <p>1. Where goods are sold for a stipulated price with the privilege of returning what remains unsold, or where it is agreed that the same may be paid for by a stipulated time or returned in good condition, such sale, as to third parties without notice, is valid.</p> <p>2. Where the consignee is at liberty to sell and receive payment at any price he likes, but is bound, if he sells the goods, to pay for them at a fixed price and time, the transaction is a sale.</p> <p>3. In the case presented, the goods in question were liable to be levied upon as the property of the vendee.</p>

<p>Administration — Note—-Want of Consideration — Discharge in Bankruptcy — Subsequent Promise — When Made — Instructions.</p> <p>1. In an action against an estate on a promissory note, the defense being want of consideration, because given to save something out of a bankrupt estate, and discharge in bankruptcy, it is held: That it was improper to instruct the jury that, to entitle the plaintiff to recover against the certificate of discharge, the burden of proof was upon him to show that his claim was fair and honest and that the promise to revive the note was made after the maker’s discharge in bankruptcy; that, upon the production of the note with evidence of a subsequent promise by the maker after the filing of his petition, the burden of proof to show want of consideration was upon the defendant; and that the instruction in question was misleading in regard to whom the subsequent promise was made.</p> <p>2. A subsequent promise by a bankrupt to pay a note previously given by him is not required to be made after his discharge. It is sufficient to revive the note if made after the petition in bankruptcy is filed.</p> <p>8. An instruction calling special attention to certain parts of the evidence is improper.</p>

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

William Bbown, Judge, presiding. On February 26, 1885, John Allison filed in the Circuit Court of Ogle County his bill of complaint against I. H. Perry and M. D. Hathaway, setting forth, amongst other things, in substance, the purchase of what was known as the O. J. Booth lands, in partnership between said John Allison, I. H. Perry and IT.

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

<p>Attorney and Client — Fees—Account Stated — Continuance.—Evidence— Instructions.</p> <p>1. The admission by a party against whom an affidavit for a continuance is made, that the absent witness will swear to' the material facts therein sta'ed. will not warrant the court in overruling the motion for a continuance, when it appears that the presence of the witness is necessary to a fair trial.</p> <p>2. Where an answer of a witness is but a mere conclusion and is not responsive to the question, it should be stricken out.</p> <p>8. Business transactions between an attorney and client may be investigated in a controversy between them, and the burden of proof is upon the former to show the justice1 of his demands.</p> <p>4. A statement of account between attorney and client is not conclusive ‘upon the client.</p> <p>5. Upon a suit brought by an attorney for the recovery of fees, instructions which, ignoring the relation of attorney and client, inform the jury that an account stated is final, are erroneous.</p>

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

<p>Negotiable Instruments — Notes—Forgery — Ratification — Inconsistent Defenses — Evidence—Instructions—Set-off.</p> <p>1. It is improper to give instructions in support of inconsistent defenses.</p> <p>2. In an action on a note and to recover money paid by the plaintiff as surety on a second note, the defendant can not repudiate the second note because it was raised in amount after it was executed by him as maker, and at the same time deny his liability on the first note on the ground that it was paid by the proceeds of a transfer of the second note.</p> <p>8. A promise by the purported maker to pay a forged note binds him without any new consideration, provided he has full knowledge of the facts affecting his rights.</p> <p>4. Where a note is assigned after maturity, matters of set-off in favor of the maker as against the payee, accruing after such assignment, can not be allowed.</p>

<p>Venue — Commencement of Suit in Wrong County — Practice—Remedies—• Motion.</p> <p>Where a suit is improperly brought in a county other than that in which the defendant resides or is found, service being made in another county, it is proper practice to quash the writ and return and dismiss the suit upon motion,</p>

<p>Instructions — Fast Driving — Ordinance—Abstract.</p> <p>1. An instruction in the nature of an argument upon the facts and the duty of the jury in the premises, is erroneous.</p> <p>2. The instructions must be in writing, unless that form is waived by the parties, and relate only to the law of the case.</p> <p>3. Every intendment being in favor of the judgments of a court of gen. eral jurisdiction, where complaint is made of certain in»tractions, all others given should also appear in the abstract.</p>

<p>Appeal from the Circuit Court of Jo Daviess County; the Hon. Joseph M. Bailey, Judge, presiding.</p>

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

<p>Criminal Law — Misdemeanor—Appeal—Costs—Dissenting Opinion.</p> <p>Where the defendant prosecutes an appeal to the Circuit Court from a conviction before a justice in a prosecution for a misdemeanor, he can not be required to advance the fees of the clerk of the Circuit Court for docketing the cause.</p>

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

<p>Highways — Ditch as'Obstruction — Proceeding by Town to Recover Penalty — Instruction to Find Defendants Qmlty.</p> <p>In a proceeding by a town to recover a penalty for obstructing a highway by digging a ditch therein, the court below improperly directed the jury to find the defendants guilty, there being ho evidence fairly tending to prove one of them guilty.</p>

<p>Iu error to the Circuit Court of Will County; the Hon. Dorrauoe Dibell, Judge, presiding.</p>

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

<p>Snips — Exchange of Live Stock — Acceptance—Waiver—Damages—Instructions.</p> <p>In an action for an alleged breach of contract, whereby loss was sustained through the death of a Spanish jack received in a horse trade, it being claimed that his death was caused by his being ill-used by the defendant, in driving him to the house of the plaintiff, it is held: That the verdict for the plaintiff was contrary to the evidence, and that the instructions were erroneous, particularly in' not stating what would constitute an acceptance amounting to a waiver of defects.</p>

<p>Mortgages — Foreclosure—Inverse Order of Alienation — Waiver of Buie —Contribution—Interest.</p> <p>The operation of the rule that, as between the grantees of different portions of mortgaged premises, the respective parcels are liable in the inverse order of their alienation, may be waived, limited or modified by the deed to the earliest grantee so as to bind such grantee and those claiming under . him. ></p>

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

<p>In error to the Circuit Court of Coles County; the Hon. James F. Hughes, Judge, presiding.</p>

<p>Administration — Action of Debt on Bond — Parties—Surviving Partner —Pleading—Practice—■Evidence—Damages—Measure of.</p> <p>1. The legal right of action on a bond running to an administratrix for the benefit of the estate, is in such administratrix in her individual capacity.</p> <p>2. In general, the action must be brought in the name of the one in whom the contract vests the legal interest. When the contract is under seal, the action must be in the name of the obligee, though the agreement be for the benefit of another.</p> <p>3. The measure of damages upon the breach of an undertaking .faithfully to discharge the duties of a surviving partner, is the amount which would have been received in case of performance.</p>

<p>Mandamus — Judgment against School District — Authority of Treasurer —Secs. 49 and 67, Chap. 122, It. S'. — Amendment—Demurrer.</p> <p>1. School officers possess only such powers as are directly granted by statute, or result by fair implication from those so granted. .</p> <p>2. In the absence of an order by the directors or a court of competent jurisdiction for the payment of school funds, the treasurer of a district can not be required by mandamus to pay a judgment against such district from funds collected under a special levy for that purpose.</p> <p>3. A copy of a special levy by school directors, merely certified by the clerk of the trial court, is no part of the record.</p> <p>4. Where a demurrer to a petition for a mandamus is overruled and judgment rendered for the petitioner, this court can consider the petition only in the light of its averments.</p>

<p>In error to the Circuit Court of Clark County; the Hon. J. W. Wilkin, Judge, presiding.</p>

<p>Breach of Promise of Marriage — Evidence.</p> <p>In an action for breach of promise of marriage, this court reverses the judgment for the plaintiff, the verdict being unsupported by the evidence.</p>

<p>Appeal from the Circuit Court of DeWitt County; the Hon. Cybus Efleb, Judge., presiding.</p>

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

<p>Negotiable Instruments — Discharge — Note — Principal and Surety— Collateral Security — Extension of Time — Evidence—Instructions.</p> <p>L Where the payee of a personally secured note takes, as collateral security, a note secured by mortgage maturing at a later date this does not of itself, in the absence of an agreement to that effect, extend the time or discharge the surety.</p> <p>2. In the case presented, an instruction to the effect that the mere taking of a note having a longer time to run would not he conclusive proof of an extension, was improperly refused, and evidence to show whether there was an agreement to extend the time of payment was improperly excluded.</p>

<p>Drainage — Enlargement of District — Notice—Certiorari—■Act of 1885.</p> <p>1. When a drainage district embraces land in two counties, a proceeding by certiorari to review the proceedings of the commissioners is within the jurisdiction of the Circuit Court of either county.</p> <p>2. Upon the proposed enlargement of a drainage district, it is necessary to give the same notice as is required when such district is originally formed.</p> <p>3. In the case presented, the notice of the proposed enlargement was insufficient, the first publication thereof having been eighteen flays before the term of the court at which the parties interested were to be heard, instead of twenty days, as required by the act of 1885.</p>

Cyrus Epler, Judge, presiding. Charles L. Ives and Matthew Ashelby formed a partnership for the purpose of carrying on the business of storing, buying and selling ice in the city of Jacksonville, on or about the 15th day of November, A. D. 1875. Charles L. Ives died March 15, 1879, having first made and published liis last will and testament, which was duly probated in the Probate Court of New Haven county, Connecticut.

<p>Mortgages — Trust Deed — Foreclosure—Limitations—Sections 11 and 16, Act of 1872.</p> <p>The statute prohibiting the foreclosure of mortgages, unless within ten years after the right of action accrues, does not prevent foreclosure after the expiration of ten years, where the note or other evidence of indebtedness secured has been extended by payment or new promise. The right of foreclosure extends until such indebtedness is barred.</p>

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

<p>Drainage — Formation of Districts — Highway Commissioners — “System of Drainage” — Quo Warranto — Acts of 1819 and 1885 — Judgment of Ouster — Costs.</p> <p>1. The drainage acts of 1879 and 1885 do not contemplate the formation of districts so large as to require different systems of ditches in order to drain the lands therein embraced.</p> <p>2. Upon an information in the nature of a quo warranto charging that the respondents usurped the office of drainage commissioners, it is held: Thar no sufficient petition was presented for a district comprising four systems of drainage; that the court below properly entered judgment of ouster and for costs; that all the land in the town was improperly included, as but a small portion thereof would be benefited by the same system of drainage; and that such a district could not be administered under the acts of 1879 and 1885.</p>

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

<p>Appeal from the Circuit Court of Morgan County; the Hon. Cybus Epleb, Judge, presiding.</p>

<p>Husband and Wife — Release of Homestead and Dower — Resulting Trusts — Bill to Enforce and Declare — Evidence—Sec. 2, Chap. 51, R. S.</p> <p>1. In chancery one defendant is competent to testify in behalf of a co-defendant on a question in the decision of which he has no interest. This rule is not impaired by Chap. 51, Revised Statutes.</p> <p>2. A wife who releases her right to homestead and dower in the family home in consideration of being paid an adequate share of the purchase money, is reinvested with such rights upon the application of such share in part payment of a new one.</p> <p>3. Upon a hill filed by the administrator of the wife and certain of her heirs against the husband to declare and enforce a resulting trust, on account of the re-investment of money allowed the wife for her homestead and dower in a farm, it is held: That the transaction in controversy simply amounted to the transfer of the wife’s rights of homestead and dower from one piece of property to another; and that the bill was properly dismissed.</p>

<p>Sheriff — Special Deputy — Undated Appointment — Sec. 10, Chap. 125, R- S. — Action of Debt on Judgment — Wartt of Copy — Sec. 17, Practice Act —Default—Reversal—Practice.</p> <p>1. The record of a judgment upon which a suit is brought is an instrument in writing within the meaning cf See. 17 of the practice act, and a copy thereof must be filed with the declaration. The absence of such copy is sufficient ground for the reversal of a judgment entered by default.</p> <p>2. It seems that- a date to the written appointment of a special deputy sheriff is not indispensable, where it appears that the appointment preceded the service made by such deputy.</p>

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

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

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

<p>Appeal from the County Court of Champaign County; the Hon. J. AT. Langley, Judge, presiding.</p>

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

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

<p>Administration — Exception to Report — Life Insurance — Benevolent Association — Beneficiaries—“ Legal Representatives.”</p> <p>Upon exceptions filed to a report of an administratrix by a creditor of the estate of her deceased husband, touching her failure to charge herself with the proceeds of a certificate in a benevolent association of which her husband was a member, it is held: That, in accordance with the intention of the parties, the words “legal representatives” are to he construed as referring to the widow, orphans and heirs of the deceased; and that the administratrix is not chargeable as such with the proceeds of said cer" tifieate.</p>

<p>Municipal Corporations — Excavation and Obstruction of Street- — Penalty under Ordinance — Possession—Evidence.</p> <p>1. In a prosecution under an ordinance by a municipal corporation to recover a penalty for excavating and obstructing a street, wherein the plaintiff’s claim rests solely upon the extent of actual possession shown, its proof of such possession of the strip of ground in question is not so convincing as to require the reversal of the judgment for the defendant.</p> <p>2. In such cases title deeds, maps and plate are admissible in evidence to show the extent of the defendant’s possession, but not to show the title which is not involved.</p>

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

<p>In ebeoe to the Circuit Court of Logan County; the Hon. George W. Hebdman, Judge, presiding.</p>

<p>Trust Deed — Foreclosure-Statute of Limitations — Sec. 11, Act of 1872 —Death of Grantor — Partition and Sale — Privity—Practice—Demurrer.</p> <p>1. Sec. II of the statute of limitations of 1872, prohibiting foreclosure of a mortgage or trust deed, unless within ten years after the cause of action accrues, is construed with reference to Sec. 16 of the same act, which provides for extensions by means of payment or new promise. The right of foreclosure extends until the indebtedness secured is barred.</p> <p>2. A purchaser of land under a decree of partition and sale, procured bv the widow and children of the maker of a trust deed, may avail himself of the defense of the statute of limitations in foreclosure proceedings.</p> <p>8. Where it appears on the face of the bill that the debt secured is barred by the statute of limitations, advantage may be taken of the bar on demurrer.</p>

<p>ffusband and Wife-Liability for Family Expenses-Sec. 15, Chap. 68 R. S.</p> <p>Where two persons live together as husband anct wife and are recognized and treated as such, the reputed husband is liable for family supylies, although the credit was extended to the reputed wife.</p>

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

<p>In error to the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.</p>

<p>Divorce — Alimony — Lien upon Personal Property— Replevin — Secs„ 44, 45. Chap. 22, R. S.</p> <p>1. A covrt of equity has no power to make a decree for alimony a lien on personal property.</p> <p>2. An execution under a decree for alimony can not be levied upon personal property which has been previously sold to a third person.</p>

<p>Appeal from the County Court of Moultrie County; the Hon. H. A. Miner, Judge, presiding.</p>

<p>Criminal 'Law — Scire Facias — Forfeited, Recognisance — Surrender— Statute — Evidence.</p> <p>1. In a proceeding by scire facias on a forfeited recognizance, evidence to show that, before the forfeiture, the principal had surrendered himself to the sheriff, is admissible.</p> <p>2. Where the surrender is voluntary and by the principal, a certified copy of the recognizance is unnecessary, particularly where the sheriff, acting upon his own acquaintance with the party and his own knowledge of the circumstances, accepts the surrender.</p>

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

<p>APPEAL from the Oircuit Ooiirt of McLean County; the lion. C. B. SMITH, Judge, presiding.</p>