29 Ill. App.

Volume 29 — Illinois Appellate Court Reports

166 opinions

29 Ill. App. 17Chicago, Burlington & Quincy Railroad v. Bryant (1888)
Railroads—Damages for Injury to Stock—Fence and Cattle Guard— Sufficiency of—Question for Jury—Evidence—Instructions—Improper Remarks by Counsel—New Trial—Newly Discovered Evidence—Diligence. 1. In an action against a railroad company to recover damages for injuries to stock, the sufficiency of a cattle guard can not be shown by evidence that it is the same in construction as those generally used by the defendant and other roads. 2. It is proper to refuse instructions when the substance thereof is contained in others given at the instance of the party requesting the same. 3. Objection to statements of counsel for the adverse party in his closing remarks to the jury can not be first raised in this court. 4. In the case presented, it is held: That the verdict for the plaintiff is supported by the evidence; that there was no error in the modification and refusal of instructions asked by the defendant; and that it was proper to refuse a new trial on account of newly discovered evidence for want of diligence.
29 Ill. App. 22Ward v. Ware (1888)
Practice—Bill of Exceptions. The motion for a new trial and exceptions in respect thereto must he preserved in the bill of exceptions, or error can not be assigned thereon.
29 Ill. App. 23Dunsworth v. Walter A. Wood Machine Co. (1888)
Appeal from the Circuit Court of Green County; the Hon. George W. Herdman, Judge, presiding.
29 Ill. App. 27Steiger v. Prather (1888)
Landlord and Tenant—Bemoval of Improvements by the Lessee—Fire-Bill of Exceptions. In an action by a landlord to recover damages from a tenant for the removal o£ improvements, this court declines to interfere with the verdict for the defendant, only part of the lease appearing in the bill of exceptions.
29 Ill. App. 29Yowell v. Braden (1888)
Appeal from the Circuit Court of Edgar County; the Hon. C. B. Smith, Judge, presiding.
29 Ill. App. 31Dayton v. Rutherford (1888)
Drainage—Cutting Ditch from Natural Drain without District—Injunction. 1. An injunction lies to prevent the cutting of a ditch connecting a natural drain or slough without, with a branch ditch within, a drainage district. 2. In the case presented, this court holds that the evidence sustains the finding of the chancellor that the drain or slough in question is a natural channel or watercourse having its outlet outside the district.
29 Ill. App. 35Town of Talkington v. Bullard (1888)
Appeal from the Circuit Court of Sangamon County; the lion. J. A. Ceeightoit, Judge, presiding.
29 Ill. App. 36Whiteley v. Clark (1888)
Appeal from the Circuit Court of Cumberland County; the Hon. W. C. Jones, Judge, presiding.
29 Ill. App. 39Correll v. Freeman (1888)
Partnership—Dissolution—Bill to Compel Settlement—Chancery Jurisdiction—Cross-Bill. 1. Where a court of chancery has obtained jurisdiction for one purpose, it will retain it to do complete justice between the parties, although to do so it may be required to pass upon some matters which alone would not be cognizable in such a court. 2. Upon a cross-bill the relief granted must be either equitable in itself or such as the party claiming it is entitled to at law, consistent with the facts found giving equity jurisdiction of the subject-matter. 8. Upon a bill to settle partnership affairs, where the court finds that there has been a full settlement between the parties, it can not proceed to grant relief on a cross-bill claiming a balance due the defendant on such settlement. 4. In the case presented there -atas no fact proved, either in support of the bill or cross-bill, which would bring the case within the jurisdiction of equity.
29 Ill. App. 45Dunham v. Marine Bank of Springfield (1888)
Assignments — Judgment Notes — Delivery—Preferences—Fraud—Instructions. In a contest as to the allowance of a judgment claim, based on a judgment note, against an insolvent estate as a prior lien, it is held: That the contention that the judgment is void as part of the assignment, is not supported by the evidence; and that an instruction touching the delivery of the note was properly refused.
29 Ill. App. 50City of Roodhouse v. Jennings (1888)
Municipal Corporations—City Attorney—Appointment of—See. 73 Chap. 24, R. S. 1. Although the statute provides for the election of a city attorney, the mayor and council of a municipal corporation may employ counsel to commence and prosecute suits for violation of city ordinances, in case of vacancy in the office of city attorney. An attorney thus employed need not be a resident of the city which he represents. 2. It is improper to dismiss a suit, as commenced without authority, by counsel so employed.
29 Ill. App. 53Alden v. Yeoman (1888)
Exemptions—Belay in Making Schedule—Replevin. A debtor failing to make a selection of property allowed him by law, within the time required by the statute, loses his right of exemption.
29 Ill. App. 54Dye v. Gritton (1888)
Appeal from the Circuit Court of Yermillion County; the Hon. C. B. Smith, Judge, presiding.
29 Ill. App. 57Nicholson v. People (1888)
Dram Shops—Municipal Corporations—Payment of License—Keeping a Common Kitisance—Dram-Shop Act, Secs. 2, 6 and 7, Chap. 03, JR.S.-—• Once in Jeopardy—Ecidence—Instructions—Pleading. 1. Where the commission of a particular act constitutes two offenses of different grades of criminality and punishable differently, a conviction or acquittal of a charge of committing one of them will b ¡ no bar to a conviction for the other. The second charge places the defendant in jeopardy for a new offense. 2. Upon an information charging a dram-shop keeper with keeping a “ common nuisance,” the docket of the police magistrate before whom he was tried on a previous complaint for selling intoxicating liquor in violation of the statute, is inadmissible to prove that the defendant was then found “not guilty.” 3. To warrant the conviction of a dram-shop keeper for keeping a common nuisance, it must be shown that he, or his agent or keeper, has knowingly and intentionally sold intoxicating liquors at the place in question, in violation of the statute. 4. In the case presented, the court below improperly instructed the jury that a single sale of intoxicating liquor toa minor without the wril ten order-required, although the vendor does not know whether the vendee is a minor, is sufficient to make the place of sale a common nuisance. 5. The Legislature may make a distinction between two offenses in respect to an act common to both, with reference to whether actual intention shall be material. 6. This court will not reverse for errors which worked no injury to the appellant.
29 Ill. App. 68Williamson-Stewart Paper Co. v. Seaman (1888)
In error to the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
29 Ill. App. 70Wilcox v. Carson (1888)
Reaping Machine—Sales—Warranty—Action to Recover Price—Instructions. 1. In an action to recover the price o£ a reaping machine, it is held: That the evidence touching the warranty that the machine would work well, sustains the verdict for the defendant; and that there was no error in the modification of an instruction, by s'riking out the clause in regard to the reliance of the defendant upon the warranty. 2. A warranty includes a representation made to assure the buyer, and relied on by him as an inducement to purchase.
29 Ill. App. 73Northwestern Benevolent & Mutual Aid Ass'n v. Hand (1888)
Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
29 Ill. App. 77C. Aultman & Co. v. Graham (1888)
Negotiable Instruments—Note—Surety—Settlement—Error in Computation—Receipt in Full—Correction—■Distinction bettveen “ Error’' and ‘' Mistake"—Instructions. 1. Mutuality in error is not essential to the right of correction. 2. In an action to recover from the surety a balance due upon a note, a mistake having been made and a receipt in full given upon payment of less than the correct amount, it is held: That a recovery should be had for the balance rightfully due; and that an instruction given for the defendant was improper,
29 Ill. App. 86Kankakee Drainage District v. Commissioners of Lake Fork Special Drainage District (1888)
Appeal from the Circuit Court of' Piatt County; the Hon. J. F. Hughes, Judge, presiding.
29 Ill. App. 90Illinois Central Railroad v. Sheehan (1888)
Appeal from the Circuit Court of Champaign County; the Hon. Jajaes F. Hughes, Judge, presiding.
29 Ill. App. 95Chicago & Eastern Illinois Railroad v. Tilton (1888)
Railroads— Highway Crossing— Negligence — Obstructions — Instructions. 1. There is a distinction between acts of negligence that maybe declared by the court as matter of law, and such as must be found by the jury. When the standard of duty is fixed and invariable under all circumstances, its omission is negligence and may be so declared by the court. 2. In an action against a railroad company to recover damages for an injury caused by a collision át a road crossing, it is proper to instruct the jury that it is negligence on the part of a railroad company to suffer hedges or trees to grow upon its right of way to such a height as materially to obstruct the view at road crossings. 3. The court may state what obstructions are unlawful, but the jury must determine whether the obstructions in question are such as are prohibited.
29 Ill. App. 98Wilson v. Scovel (1888)
In error to the Circuit Court of Fulton County; the Hon. John C. Bag-by, Judge, presiding.
29 Ill. App. 99Handy v. People (1888)
Appeal from the Circuit Court of Sc.ott County; the Hoa. George W. Herdman, Judge, presiding.
29 Ill. App. 106McKinley v. Smith (1888)
In ekroe to the Circuit Court of Champaign County ; the Hon. O. B. Smith, Judge, presiding,
29 Ill. App. 112Tufts v. Johnson (1888)
J. A. Cbeighton, Judge, presiding. Action of replevin. Demurrer to declaration, which was sustained as to two counts thereof.
29 Ill. App. 115People ex rel. Brokaw v. Commissioners of Highways (1888)
Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding. .
29 Ill. App. 117City of Champaign v. Forrester (1888)
Appeal from the Circuit Court of Champaign County ; the Hon. J. F. Hughes, Judge, presiding.
29 Ill. App. 122Prettyman v. Irwin (1888)
In ebbob to the Circuit Court of Tazewell County; the Hon. S. S. Page, Judge, presiding.
29 Ill. App. 124Knowles v. Knowles (1888)
Appeal from the County Court of Menard County ; the Hon. Cyrus Epler, Judge, presiding.
29 Ill. App. 132Dunphy v. Gorman (1888)
Fraudulent Conveyances—Principal and, Surety—Judgments—Subrogation—Merger—Parties—Remittitur. 1. Where a conveyance is fraudulent as to creditors the grantee is not entitled to peaceable possession of the property conveyed, so long as other means of the grantor remain unexhausted. 2. Where a voluntary conveyance is made the presumption of fraud may be rebutted by proving that the provision was reasonable and that enough was retained by the grantor to preserve his solvency, the burden of proof being on the donee. 3. A surety upon paying the debt of the principal has a clear right to be substituted in place of the creditor as to all securities held by the latter. A judgment paid by him will be kept alive for his benefit. 4. In the case presented this court declines to interfere with the decree finding the conveyance in question fraudulent.
29 Ill. App. 136Hill v. Bell (1888)
Appeal from the County Court of Brown County; the Hon. J. J. MuBohxold, Judge, presiding.
29 Ill. App. 139Riley v. People (1888)
L. Larkin, Judge, presiding. In this case the appellants, William Riley and Timothy Sullivan, with others, were indicted by the grand jury for riot at the September term, 1887, of the Greene County Circuit Court, and on certificate, a trial was had at the December term, 1887, of the County Court, resulting in the conviction of the defendants, William Riley and Timothy Sullivan, on the first count in the indictment, and fines of $50 imposed upon each of them, from which…
29 Ill. App. 143Quick v. I. & St. L. Ry. Co. (1888)
Master and Servant—Personal Injuries—Contributory Negligence— Mules and Megulations—Special Findings. In an action by a railroad employe for an injury suffered by him while engaged under a car, this court declines to interfere with the judgment for the defendant, notwithstanding a general verdict- for the plaintiff, the special findings of the jury showing contributory negligence on Ms part.
29 Ill. App. 146Johnson v. Lawson (1888)
In- error to the Circuit Court of Scott County; the Hon. George W. IIerdman, Judge, presiding.
29 Ill. App. 149Phœnix Insurance v. Van Allen (1888)
Fire Insurance—Trover for Value of Policy—Breach of Condition— Adjustment of Loss—Compromise Settlement—Fraud. 1. A compromise settlement of a loss under a fire insurance policy, freely entered into by the assured, should not be disturbed in the absence of fraud. 2. In the case presented, this court reverses the judgment for the plaintiff as contrary to the evidence.
29 Ill. App. 152Latham v. McGinnis (1888)
In ekeob to the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. In the spring and summer of 1884, William W. McGinnis and David E. McGinnis, brothers, and large farmers in Sangamon county, became heavily involved in debt and their creditors began to press them for payment.
29 Ill. App. 156Hart v. Lemmon (1888)
Slander—Instructions—Evidence. In an action for slander, this 'court declines to interfere with a verdict for the plaintiff, although the instructions given are somewhat faulty and so numerous as to be calculated to confuse, rather than enlighten, the jury.
29 Ill. App. 157Chicago, Springfield & St. Louis Railroad v. Beach (1888)
Appeal from the Circuit Court of Montgomery County; the Host. J. J. Phillips, Judge, presiding.
29 Ill. App. 162Griffin v. Kaericher (1888)
Master and Servant—Wages—Contract—Instructions. This court reverses a judgment for the plaintiff in an action to recover wages, because of the failure of the court below to give an instruction touching the question whether the contract was for a definite time.
29 Ill. App. 163Jenks v. Vandolah (1888)
In error to the County Court of McLean County; the Hon. C. D. Myer, Judge, presiding.
29 Ill. App. 166Drury v. Barnes (1888)
Appeal from the Circuit Court of Christian County; the Hon. J. J. Phillips, Judge, presiding.
29 Ill. App. 170Summers v. People (1888)
Fish—Acts 1835 and 1887—Repeal—Fixing Amount of Fine—Jury. 1. Anything which substantially and materially interferes with the passage of fish up and down stream, is within the meaning of the act of 1885 forbidding any obstruction to their free passage. 2. In the case presented the question whether the act of 1885 was repealed by that of 1887 is not material, as such repeal would not affect a pending prosecution. 8. Upon appeal from a justice in such cases the jury may fix the amount of the fine to be imposed.
29 Ill. App. 172Randolph v. Chisholm (1888)
Appeal from the Circuit Court of Coles County; the lion. C. B. Smith, Judge, presiding.
29 Ill. App. 173Quincy Building & Loan Ass'n v. Winget (1888)
Building Associations—Foreclosure of Trust Deed and Cancellation of Stock—Injuncti on. Upon a bill filed to enjoin the foreclosure of two deeds of trust and to secure the cancellation of several shares of stock in a building association, this court reverses a decree for the complainants as not supported by the evidence.
29 Ill. App. 175Lake Erie & Western Railroad v. Kirts (1888)
Railroads—Fires—Defective Spark Arreste>— Evidence—Contributory Negligence—Instructions—Damages. 1. The owner of property situated near a railroad is "not chargeable with negligence in respect to fires caused by sparks from locomotives, merely because he used it as if it were not so situated. 2. In an action against a railroad company to recover the value of property destroyed by fire alleged to have escaped from a locomotive, it is held: That the verdict for the plaintiff is supported by the evidence; that there was no substantial error in the admission of evidence; that the charge given by the court contained all that was necessary to a correct view of the law involved; and that it does not appear that the damages are excessive.
29 Ill. App. 179Powell v. Hyndman (1888)
Appeal from the Circuit Court of Greene County; the Hon. L. Larkin, Judge, presiding.
29 Ill. App. 180Insurance Co. of North America v. Hofing (1888)
Insurance—Policy on Barn and Personal Property—Misrepresentation as to Ownership— Forfeiture—Extent of—Fraud—Mistake in Policy— Estoppel—Damages—Remarks of Counsel. In an action on a policy of fire insurance insuring a barn for a certain amount and articles of personal property for separate ¡amounts, it is held: That a misrepresentation in the application and proof of loss as to the ownership of the barn, in which the wife also had an interest with the assured, does not bar a recovery in respect to the personal property, although the policy provided for a forfeiture in case of attempt to defraud the company by false swearing or otherwise; that the evidence discloses' no attempt to' defraud the company; that the policy is not an entirety but is divisible; that the forfeiture is confined to the property affected by the misrepresentation; that the plaintiff is not estopped by his statement as to the amount of loss contained in the proof of loss; that the damages are not excessive; and that the remarks of plaintiff's attorney do not require a reversal.
29 Ill. App. 184Chapman v. Barnes (1888)
Administration-—-Claim for Board and Nursing—Relationship—Instructions—Evidence. 1. This court, upon a review of the evidence, sustains a claim against the estate of an aunt of the claimant for board and nursing in the last illness of the deceased, there having been in the minds of the parties the purpose to make and receive payment for the extraordinary services rendered by the claimant. 2. The appellant can not complain of errors in the instruction given for the appellee, when like errors appear in those given at his request. 3. In the case presented, the instructions given at the instance of both parties were too numerous and contained too many references to specific matters of evidence.
29 Ill. App. 187City of Danville v. Vangundy (1888)
Municipal Corporations—Defective Culvert—Notice—Negligence. This court sustains a judgment against a municipal corporation for injuries caused by defects in a culvert, the defendant being chargeable with negligence in not making a more thorough examination tor such defects.
29 Ill. App. 188Lindauer Bros. & Co. v. Lang (1888)
In error to the Circuit Court of Scott County; the Hon. Cyrus Epleb, Judge, presiding.
29 Ill. App. 192Mueller v. Newell (1888)
Forcible Detainer—■Parties—Abstract—Omission of Instructions. 1. The action of forcible detainer can only be maintained by one who is entitled to possession. 2. This court declines to consider instructions which are omitted from the abstract.
29 Ill. App. 193Shea v. Wagner (1888)
Appeal from the County Court of Adams County; the Hon. B. F. Beeriae, Judge, presiding.
29 Ill. App. 194First National Bank v. Belt (1888)
Appeal from the Circuit Court of Jersey County; the Hon. George W. Herdman, Judge, presiding.
29 Ill. App. 197Moore v. Montelius (1888)
Appeal from the Circuit Court of Ford County; the Hon. Aleeed Sample, Judge, presiding.
29 Ill. App. 200Hunter v. Harris (1888)
Evidence—Promissory Note—Action by Administrator—Issue as to Genuineness—Conflict of Evidence—Irrelevancy— lime and Place—Possession—DcCte—Whether Material—Presumption—Practice—Sworn PUa —Instructions—Remarles of Counsel. 1. In an action by an administrator on a promissory note the execution o£ which is denied, the plaintiff may show that it existed prior to his appointmenfc among the papers of the deceased and in the place where he usually kept such papers. 2. Where the genuineness of a promissory note is in issue, the defendant may show such facts as would exclude the possibility or probability of its execution at the time and place indicated on its face. 3. While the date of the note is prima facie evidence of the time of its execution, it is not conclusive. 4. Evidence of but slight importance is admissible, if not wholly irrelevant. 5. Where the evidence is sharply conflicting, and no error of law has intervened, this court will not interfere with the verdict of the jury. 6. It is proper in a case wherein a sworn plea is filed, to instruct the jury to disregard the affidavit of the defendant, as such affidavit is not evidence. 7. The jury were properly instructed in the case presented, that it is immaterial whether the note was executed at the purported time and place, although the defendant had sought to prove that it was not made at such purported time and place. The rule stated is correct and applicable to the case presented. 8. Instructions which, taken together, .are accurate and clear, are sufficient. 9 An objection to remirks of counsel can not be first raised in this court.
29 Ill. App. 208People v. Foster (1888)
Appeal from the Circuit Court of Macon County; the Hon. C. B. Smith, Judge, presiding.
29 Ill. App. 209Dulin v. Prince (1888)
Appeal from the County Court of McLean County; the Hon. C. D. Myer, Judge, presiding.
29 Ill. App. 212Lake Erie & Western Railroad v. Cruzen (1888)
Appeal from the Circuit Court of Ford County; the lion. Alfred Sample, Judge, presiding.
29 Ill. App. 219Western Union Telegraph Co. v. DuBois (1888)
Telegraph Companies—Error in Transmitting Message—Suit liy Recipient—Parties—Agency—Damages. Whore a telegram as delivered states’a price lower than in the original, the receiver who has ordered goods on the faith thereof, may maintain an action in his own name against the telegraph company for the excess in price which he has been required to pay.
29 Ill. App. 230Jacksonville Southeastern Railway Co. v. Carlsen (1888)
Appeal from the Circuit Court of Cass County; the Hon. Cyrus Eplbr, Judge, presiding.
29 Ill. App. 232Orient Insurance v. Kemp (1888)
Contracts—Agency—Pleading—Failure of Consideration—Statute of P'rauds- In an action against an insurance company brought by a discharged agent io recover money paid by the plaintiff at the time of his appointment to settle the account of his predecessor, it is held: That the evidence fails to show an agreement for the plaintiff to act as the permanent agent of the defendant; that the judgment for the plaintiff can not be sustained under the common count for money had and received; and that, at most, there is but a pu’tial failure of consideration.
29 Ill. App. 235Seaton v. Ruff (1888)
Replevin—Chattel Mortgage—Transfer of Mortgaged, Property—Evidence—Instructions—Estoppel—Practice. 1. Where a mortgagee takes possession of mortgaged chattels under the mortgage, he holds the legal title, and may lawfully sell at private sale, being responsible to the mortgagor for any omission to comply with the terms of the mortgage. 2. In an action of replevin brought to recover property which had been levied upon after foreclosure and sale, as the property of the mortgagor, this court declines to interfere with the verdict for plaintiff, there being no sufficient evidence of fraud. 3. After the foreclosure of a chattel mortgage, the employment of the original owner to take charge of it does not of itself raise a presumption of fraud. 4. An assignment of error which is not noticed in the brief, will be considered as waived.
29 Ill. App. 239People v. O'Hair (1888)
Drainage—Organization of District—Sufficiency of Petition—Quo Warranto—Act of 1885—Practice—Pleading. 1. Proceedings relating to the right of individuals to act as drainage commissioners, are reviewable in this court, an office and not a franchise being involved. 2. The finding by drainage commissioners at their final meeting, that the petition for the formation of the district has the requisite number of signers, is conclusive in all subsequent proceedings in the absence of fraud or collusion on their part. 3. Upon quo warranto to test the organization of a drainage district, there being no error in the rulings of the trial court affording sufficient grounds for reversal, this court declines to interfere with the judgment for defendants.
29 Ill. App. 243Frey Bros. v. Harrison & Atchison (1888)
Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
29 Ill. App. 245Mackey v. Plumb (1888)
Equitable Estoppel—Bill to Restrain the Payment of Money on Execution—Concealment—Fraud. 1. When one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things and induces him to act on that belief, so as to alter his previous condition, the former is concluded from averring against the latter a different state of things as existing at the same time. 2. This court declines to interfere with a decree dismissing a bill filed by a judgment debtor to restrain the sheriff from paying over money in his hands on an execution in favor of another who is not estopped from asserting her claim.
29 Ill. App. 250Fenter v. Toledo, St. Louis & Kansas City Railroad (1888)
Appeal from the Circuit Court of Coles County; the Hon. C. B. Smith, Judge, presiding.
29 Ill. App. 254Tewes v. Harmon (1888)
In errob to the Circuit Court of Champaign County,1 the Hon. C. B. Smith, Judge, presiding.
29 Ill. App. 257Clark v. Clark (1888)
Divorce—Incest—Desertion—Condonation—Attorney and Client—Privilegcd Communications—Delay, 1. Upon a bill for divorce charging the defendant with incest, the evidence being conflicting, this court declines to interfere with the verdict for the. complainant. 5. It is proper to refuse an instruction to the effect that, if the complainant had sexual intercourse with the defendant after she knew that he had com-miffed incest, she thereby condoned the offense. 3. In the case presented, it was proper to admit parol statements made by the daughter at the time she signed a statement to the effect that the defendant had not been guilty of incest with her, such statement having been introduced to impeach her. 4. It was also proper to exclude the names of witnesses who appeared before the grand jury, there being no claim of variance between their evidence then and at the trial below. It is to be presumed that they appeared before the grand jury in obedience to law, and such appearance, if shown, would not indicate bias or prejudice against the defendant. 5. In the absence of a cross-bill, the complainant may dismiss a bill for divorce at any time prior to a decree. Such dismissal upon payment of solicitor’s fees and alimony, does not amount to a condonation of previous acts of adultery,
29 Ill. App. 260Foster v. Hart (1888)
Evidence—Secs. 4, Chap. 51, B. S.—Replevin—Partnership. 1. In an action of replevin to recover a wagon from a firm, of which a surviving partner in a firm which had owned the wagon is a member, the plaintiff is incompetent as a witness in regard to statements and admissions by the deceased member of such former firm, touching an alleged sale to the plaintiff. 2. Purchasers of a partnership interest from an executor, are representatives of the. deceased as to the, property purchased, and are within the protection of Sec. 4, Chap. 51, R. S.
29 Ill. App. 265Phoenix Insurance Co. of Hartford v. Frisch (1888)
Appeal from the Circuit Court of Sangamon County; the [Ion. J. A. Creighton, Judge, presiding.
29 Ill. App. 266Parrott v. Swain (1888)
Appeal from the Circuit Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.
29 Ill. App. 268Gooch v. Tobias (1888)
Trespass—Instructions. 1. This court reverses a verdict for the defendant in an action of trespass for destroying certain goods, on the ground that instructions given for the defendant call for a higher degree of proof than is required in civil cases. 2. The law does not require the plaintiff to “satisfy” or “ convince ” the jury by a preponderance of evidence in such cases.
29 Ill. App. 270Lake Erie & Western Railroad v. Helmerick (1888)
Appeal from the Circuit Court of Ford County; the Hon. Alfred Sample, Judge, presiding.
29 Ill. App. 277Cohen v. Farwell (1888)
In error to the Circuit Court of Vermillion County; the Hon. C. B. Smith, Judge, presiding.
29 Ill. App. 286Miner v. Armstrong (1888)
Exemption—Schedule—Time — Replevin — Household Furniture—Demand—Instructions. 1. In an action of replevin brought to recover household furniture held under execution, there being a conflict of evidence as t® whether the defendant made out and delivered his schedule within ten days from the time he received notice of the execution, this court declines to interfere with the verdict in his favor. 2. It is proper to refuse an instruction which contains nothing which is not contained in those given.
29 Ill. App. 288Jacksonville Southeastern Railway Co. v. Rabbit (1888)
Appeal from the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.
29 Ill. App. 290Smith v. Dauel (1888)
Exemptions—Schedule—Appraisement—Trial by Court—Propositions of Law—Replevin. 1. Where the debtor presents a schedule of his property to a constable holding an execution against him, it is the duty of the officer to summon appraisers without delay. In the case presented, it was proper for the debtor to go from home on the third day, taking part of the property in question, the officer having given him no notice of the intended appraisement on that day, 2. An appraisement made in the absence of part of the scheduled property of the debtor is invalid. 3. Where the appraisement is irregular and the officer levies on property of the debtor, the latter may maintain an action of replevin/or such property. 4. It is the special province of this court to review questions of fact and determine whether the finding of the trial court should be set aside. It is not essential to this review that propositions of law should have been submitted to the court below.
29 Ill. App. 294Dougherty v. Catlett (1888)
Real Estate—Convey anee of—Statute of Frauds. A verbal contract for the sale of real estate is within the statute of frauds.
29 Ill. App. 295Bauerschmitz v. Bailey (1888)
Appeal from the Circuit Court of Sangamon County; the' Hon. J. A. Cbbighlton, Judge, presiding.
29 Ill. App. 296Clawson v. Estate of Moore (1888)
In error to the Circuit Court of BoWitt County; the Hon. G. W. Herdham, Judge, presiding.
29 Ill. App. 300Frey Bros. v. Harrison & Atchison (1888)
Sales—Goods Obtained through Fraudulent Representations—Sale to Third Party—Notice—Replevin. In an action of replevin brought to recover goods alleged to have been obtained through fraudulent representations and sold to a third person having notice, this court declines to interfere with the judgment for defendant, there being no such evidence of notice as would vitiate the title of the purchaser.
29 Ill. App. 301Noffts v. Koss (1888)
Appeal from the Circuit Court of Champaign County; tl e Hon. 0. 13. Smith, Judge, presiding.
29 Ill. App. 304Long v. Cockern (1888)
Mortgages—Realty—Personalty—Foreclosure—Fixtures—Estoppel— Practice, 1. The mortgagee of realty is estopped as to third persons from claiming personal property as fixtures and included in the mortgage, by a previous action of replevin brought by him to recover the same. 2. A real estate mortgage not executed, acknowledged and recorded in accordance with the statute in reference to chatted mortgages, can not be held to cover personal property named therein. 3. Upon a suit brought to foreclose a mortgage upon a piece of land and a saw mill, this court declines to interfere with a decree awarding fore, closure as to the land, but refusing it as to the mill.
29 Ill. App. 313Davis v. Smith (1888)
In error to the County Court of Macon County; the Hon. W. E. Nelson, Judge, presiding.
29 Ill. App. 316Anheuser-Busch Brewing Ass'n v. Hutmacher (1888)
Appeal from the Circuit Court of Adams County; the Hon. William Harsh, Judge, presiding.
29 Ill. App. 319Bretz v. Fawcett (1888)
Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
29 Ill. App. 321Rouse v. Mohr (1888)
C. B. Smith, Judge, presiding. This action is assumpsit upon a promissory note, as follows: §125.90. Peoria, Ill., February 20, 1881. On or before eighteen months after date I promise to pay to the order of Geo. W. Bouse & Son, four hundred and twenty-five and 90-100 dollars, at their office in Peoria, value received, with interest at the rate of 8 per cent, per annum. Feed Glissmae, Peter Hohb.
29 Ill. App. 327Davis v. Hinton (1888)
Injunctions—Trespass—Remedy at Laio. An injunction will not lie to prevent a trespass on lands by entry thereon under a claim of title, for the purpose of plowing the same, the proper remedy being an action for forcible entry and detainer.
29 Ill. App. 330Deering v. Walker (1888)
Appeal from the Circuit Court of Ford County; the Hon. A. Sample, Judge, presiding.
29 Ill. App. 334Brock v. Brock (1888)
Appeal from the Circuit Court of Tazewell County; the Hon. U. W. Green, Judge, presiding.
29 Ill. App. 336Aulger v. Badgely (1888)
Master and Servant—Infancy—Emancipation—Recovery of Wages. 1. Emancipation will be presumed where a father testifies in behalf of his son and treats as his a claim upon which a suit is brought by him after attaining full age, for services rendered while a minor. 2. In an action to recover wages alleged to be due, the evidence being sharply conflicting, 'this court declines to interfere with the verdict for the plaintiff.
29 Ill. App. 338Anderson v. Taylor (1888)
Contracts—Construction—Dependent Clauses—Instructions. In an action on a con'ract providing for the support of the mother-in-law of the defendant, she also being the wife of the plaintiff, this court holds as erroneous an instruction to the effect that the conditions contained in the contract are independent of each‘other.
29 Ill. App. 339Bartlett v. Wright (1888)
Administration—Claim of Wife against Estate of Husband for Money Had and Received—Statute of Limitations—Instructions—Change of Venue. 1. Where a husband receives money from his wife, unless upon special terras, the inference is warranted that he receives and is to hold it for her use and benefit as an agent or depositary. 2. The statute o£ limitations does not begin to run against the wife as to money so deposited until after demand and refusal. 3. " It is matter of no consequence that some of the items, as shown by the evidence, are larger than specified in the account filed against an estate, if the amount of the verdict is within the claim as filed. 4. This court will not reverse merely because some of the instructions are inaccurate when, taken together, they fairly instruct the jury upon the questions at issue in accordance with the law.
29 Ill. App. 348Welch v. Zerger (1888)
Appeal from the Circuit Court of De Witt County; the Hon. Lyman Lacey, Judge, presiding.
29 Ill. App. 353Toledo, St. Louis & Kansas City Railroad v. Kid (1888)
Railroads — Ejection of Passengei—Damages—Special Findings— Namier of—Discretion—Remarles of Counsel. 1. This court, upon a review of the evidence, sustains a verdict of $300 for the plaintiff in an action to recover damages for having been wrongfully put off a moving train, some distance from a station, by a conductor of the defendant company. 2. It is within the discretion of the trial court to place a reasonable limit upon the number of interrogatories for special findings to be submitted, to the jury.
29 Ill. App. 356Cooper v. Cooper (1888)
Appeal from the Circuit Court of Clark County • the Hon. C. B. Smith, Judge, presiding.
29 Ill. App. 358Brownell v. Steere (1888)
Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
29 Ill. App. 373Fesser v. Achenbach (1888)
Hoads—Vacation of—Dedication—Jurisdiction—Injunctions. 1. The owner of land can not complain of an order merely vacating a road established thereon by dedication, on the ground that the commissioners of highways making the order did not first obtain from him a release of his supposed damages or have them assessed by a jury. 2. The ascertainment and allowance of damages, if not agreed upon and released, is jurisdictional only where the order involves the actual taking of land.
29 Ill. App. 377Condell v. Krohn, Feiss & Co. (1888)
In error to the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
29 Ill. App. 381Sherrick v. Town of Houston (1889)
Highways—Poll Tax—’Regularity of Proceedings—Sec. GO, Act of 1887—“ Able-Bodied”—Definition—-Gun Shot Wound—■Eoidence—Conflict ■—Expert Testimony. A man who is ordinarily physically able to perform the labor usually performed by able-bodied men on the public roads, is not exempt from liability for the poll tax provided for in Sec, 60 of the act of 1887.
29 Ill. App. 384Broadwell v. Sanderson (1888)
Principal and Surety—Note—Delivery—Subsequent Signature—New Consideration—Evidence—Weight of-—Number of Witnesses—Instructions. 1. Where a note is signed by a third person after its delivery to the payee, and not as a part of the. original transaction, a new consideration is necessary to render such third person liable thereon. 2. The weight of evidence is not to be determined merely by the number of witnesses who testify to the point in question. 3. The statute providing for want or failure of consideration as a defense has modified the rule that a written instrument can not be varied by parol. In such cases the statute permits the whole truth as to the consideration to be shown. 4. In the case presented there was no substantial error in giving or refusing instructions. 5. It is proper to refuse an instruction the substance of which is contained in others given for the same party.
29 Ill. App. 388Ashlock v. Vivell (1888)
Appeal from the Circuit Court of Greene County; the Hon. G. W. Heedman, Judge, presiding.
29 Ill. App. 393Chapman v. Windmiller (1888)
Appeal from the Circuit Court of Coles County; the Hon. Charles Sooeield, Judge, presiding.
29 Ill. App. 397Gallagher v. People (1886)
Dram-Shops—•Information—Presentation By State's Attorney—Affidavit —Statute—Question of Fact—Instructions. 1. In a prosecution for selling liquor to persons in the habit of getting intoxicated, by information presented in the County Court by the state’s attorney, such information may be verified by the affidavit of some other person. 2. In the case presented, the information being verified by a third person and presented by the state's attorney, it did not require indorsement by the judge of the court below. 3. The question whether persons to whom liquor has been sold were in the habit of getting intoxicated, is one of fact, directly provable, and not an opinion or conclusion from other facts. 4. Where, in a prosecution for selling liquor to persons in the habit of getting intoxicated, the court has given an instruction in the words of the statute, it may properly refuse others purporting to define the word ‘‘ habit.”
29 Ill. App. 401Gallagher v. People (1887)
Dram-Shops — Common Nuisance—What Must Appear to Warrant Conviction—Evidence. 1. To warrant the conviction of a dram-shop keeper for keeping a common nuisance, it is only necessary to show that the defendant kept a place for the sale of liquor, and that at such place, within eighteen months before the filing of the information, intoxicating liquor was sold to a person who was intoxicated, or who was in the habit of getting intoxicated. 2. Upon an information charging the defendants with keeping a common nuisance, under Sec. 7 of the dram-shop act, it is held: That there was no error in the refusal of the court to quash the information; that the court properly permitted witnesses to state that certain persons named were in the habit of getting intoxicated; that the refusal to permit certain witnesses to state whether they had contributed money to aid the prosecution of the case, though improper, is not such error as to require a reversal; and that certain other matters in regard to the prosecution and the defendants’ license were properly excluded.
29 Ill. App. 404Continental Insurance Co. of the City of New York v. Ruckman (1888)
Fire Insurance—Loss—Bill to Reform and Correct Policy—Vacancy Permit—Agreement by Agent—Changing Conditions of Policy—-Agents— C-lerks—Responsibility of Company for Act of—Foreign Companies. 1. Under the act in relation to insurance, the clerk of. a local agent, so far as business transacted by him for any foreign company represented by his employer is concerned, is the agent of such company and binds it by his acts. 2. Upon a bill brought to reform and correct afire insurance policy and asking for a decree ordering the payment of a loss thereunder, this court declines to interfere with the decree in behalf of the complainant.
29 Ill. App. 408Glaubensklee v. Low (1888)
Husband and Wife—Family Expense—Sec. 15, Chap. 68, R. S.—Physician's Services—Statute of Another State—Adoption — Construction— Evidence. T. A wife is liable under Sec. 15, Chap. 68, R. S., for services rendered the family by a physician, although charged on the plaintiff’s books to her deceased husband. 2. Where a statute is copied from the statutes of another State, it is presumed to have been adopted with the construction given to it by the courts of that State.
29 Ill. App. 415Gallagher v. Kilkeary (1888)
In ebbob to the Circuit Court of St. Clair County; the Lion. Geo. W. Wall, Judge, presiding. Plaintiffs in error filed their bill in chancery to contest the will of John Kilkeary, who, it appears, was the owner of certain lots in fee simple and a certain leasehold estate in other lots in East St. Louis.
29 Ill. App. 423Griswold v. Brock (1888)
Pleadin g—Practice—A newer—Default. It is improper to default a defendant where there is an undisposed of answer on file.
29 Ill. App. 425Gain v. McCracken (1888)
Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.
29 Ill. App. 428Mobile & Ohio Railroad v. People (1888)
Railroads—Stoppage of Trains at Crossings—Secs. 75 and 76, Chap. 114, Starr & C. Ill. Stat.—Sec. 12, Act of June 19, 1885. This court reverses the judgment-in a suit brought for violating Secs. 75 and 76, Chap. 114, Starr & C. Ill. Stat., in regard to the stopping of trains at railway crossings, as the declaration is based on the statute as it stood before the amendment of 1885.
29 Ill. App. 430Harris v. McCasland (1888)
Replevin—Remand,—Gift by Parent to Minor Child—Instructions— Evidence. 1. Property in lawful possession can not be replevied in the absence of a demand and refusal. 2. In an action of replevin brought to gain possession of a piano purchased by a father for his minor daughter, to comply with an agreement with his wife to do so upon her joining with him in the conveyance of real estate, the father, after said child became of age, having given a bill of sale thereof to the plaintiff, evidence of such agreement is admissible. 3. In the case presented, this court declines to interfere with the verdict for the defendant, although in form it is defective. 4. The appellant can not complain of a modification of an instruction which, as given, is too favorable to him.
29 Ill. App. 434Huschle v. Morris (1888)
Louis; the Hon. B. H. Caney, Judge, presiding. George H. Ricker purchased a stock of goods on credit and executed notes therefor, on which notes appellant became surety. Ricker also became indebted to appellant for .merchandise and cash loaned. One of the notes on which appellant was surety became due and was paid by appellant. Ricker executed his note to appellant, due two years after date, for' the sum of $1,000.
29 Ill. App. 437New Home Life Ass'n v. Hagler (1888)
Appeal from the Circuit Court of Franklin County; the Hon. David J. Baker, Judge, presiding.
29 Ill. App. 441People v. Stewart (1888)
Guardian and Ward—Surety on Bond—Suit Against—Statute of Limitations—Citation to Appear and Explain Account. 1. A citation to require a guardian to account is not an action either at law or equity within the meaning of the statute of limitations. 2. The citation of the surety upon a guardian’s bond, twenty-one years after the ward became of age, to state his knowledge of the guardianship account, the guardian having died, does not revive a right to recover from such surety any balance unpaid.
29 Ill. App. 443Kennedy v. Bruner (1888)
In error to the Circuit Court of Massac County; the Hon. Geo. W. Wall, Judge, presiding.
29 Ill. App. 445Crawford v. Munford (1888)
Appeal from the Circuit Court of Randolph County; the Hon. George W. Wall, Judge, presiding.
29 Ill. App. 448Kluthe v. People (1888)
Appeal from the County Court of Clay County; the Hon. B. D. Morbos, Judge, presiding.
29 Ill. App. 449Oswald v. Mollet (1888)
Landlord and Tenant—Distress for Rent—Attornment—Parol— Assignment of Lease. 1. The delivery of a copy of a lease and the assignment of notes given by the lessee to secure rent thereunder, constitute a valid assignment of the lease where such is the intention of the parties. 2. Any act done by the tenant by which he recognizes a change of the person to whom the rent is due, is an attornment. • 3. In the case presented, this court holds that an endeavor by a lessee to persuade the assignee of the lease to accept grain instead of cash rent, coupled with the remark that he was sorry he signed the notes to secure the payment of rent, but that they were “ all right,” amounted to an attornment.
29 Ill. App. 454Hudson v. People (1888)
Appeal from the County Court of Franklin County; the Hon W. J. N. Meyers, Judge, presiding.
29 Ill. App. 458Hayden v. Alton National Bank (1888)
Appeal from the Circuit Court of Madison County; the Hon. William H. Snyder, Judge, presiding.
29 Ill. App. 465Freishenmeyer v. Lehmkuhl (1888)
Creditor’s Bills — Fraudulent Conveyances — Mortgage — Badges of Fraud. 1. Upon a creditor’s bill seeking to have a mortgage declared fraudulent and the property named therein subject to execution, this court holds that the allegations of fraud are not sustained by the evidence. 2. The omission of the wife of a mortgagor to sign the mortgage and the failure to provide in the note secured for the annual payment of interest, are not such badges of fraud as will sustain a decree declaring the mortgage fraudulent. S. An insolvent debtor may secure a dona fide creditor without being chargeable with fraud, although others are left unsecured. 4. The burden of proof is upon one who alleges fraud.
29 Ill. App. 470Snell v. People (1888)
Criminal Law—Disturbance of the Peace—Indictment—Motion to Quash —See. 56, Criminal Code—Practice. 1. Where an indictment charges a crime in the words of the statute, additional words may be rejected as surplusage. 2. Where the certiflcate of the bill of exceptions does not show that it contains all the evidence and instructions, errors assigned touching these matters will not be considered.
29 Ill. App. 471Forlouf v. Bowlin (1888)
Amos Watts, Judge, presiding. This was an action brought by appellant against appellees in trespass. The declaration contained two counts—one quare clausum fregit, the other de bonis asportatis; a jury was waived and trial by court. The judgment for defendants, and plaintiff appealed. The opinion states the facts.
29 Ill. App. 476Price v. American Bible Society & the Missionary Society of the M. E. Church of the United States (1888)
Corporations—Service of Process—Publication—Sec. 5, Practice Act— Proceedings in Rem. In an action in assumpsit against non-resident corporations, it is improper to sustain a motion to quash service because obtained by publication.
29 Ill. App. 478City of McLeansboro v. Lay (1888)
Municipal Corporations—Defective Sidewalh—Notice—Personal Injuries —Contributory Negligence—Instructions—Evidence. 1. Reasonable diligence must be used by a municipal corporation to keep its sidewalks, wherever located, in a reasonably safe condition. 2. Notice will be presumed where a sidewalk has been out of repair a considerable length of time. 3. In an action against a municipal corporation to recover for injuries suffered through a defective sidewalk, this court, upon a review of the evidence, declines to interfere with a verdict for the plaintiff.
29 Ill. App. 483City of Salem v. Harvey (1889)
Municipal Corporations—Negligence—Defective Bridge—Next of Kin— Damages—Questionfor Jury—Personal Injuries. 1. The right to maintain an action for compensatory damages is created when the defendant, by its wrongful act or negligence, caused the death of one who leaves next of kin surviving and has contributed to the support of some one or more of them. 2. The question as to how much of the judgment recovered each of the next of kin of the deceased is entitled to receive, is for the Probate Court to determine. 3. The measure of the damages in such cases is a question for the jury, subject to the rules that compensatory damages only are recoverable and that a finding which is evidently the result of passion or prejudice Will be set aside.
29 Ill. App. 487Voorheis & Miller v. Bovell (1889)
Administration—Action by Administrator—Set-Off—Recovery for Services—Evidence—Instructions. In an action brought by an administrator to recover .for services of his intestate as manager of a store for a period of about six years before his death, this court, upon a review of the evidence, which is conflicting, holds that it sustains the judgment for the plaintiff.
29 Ill. App. 491James M. Anderson & Co. v. Dezonia (1889)
Master and Servant—Contract of Hiring—Traveling Salesman—Special Agreement—Uecovery of Wages—Evidence.—Instructions—Usage. In an action to recover for services performed by the plaintiff as a traveling salesman, the contention being as to whether the compensation was to be a commission upon sales or a, regular salary, this court, upon a review of the evidence, declines to interfere with the verdict for the plaintiff.
29 Ill. App. 495Village of Carterville v. Cook (1888)
David J. Bakeb, Judge, presiding. Appellee brought this suit in caso to recover damages for personal injury alleged to have resulted from the negligence of appellant in permitting its sidewalk to be and remain without banister, or railing, or guards, on the side thereof, at a place where said walk was elevated above the surface, thereby rendering it unsafe for school chi’dren and others using it.
29 Ill. App. 504East St. Louis Packing & Provision Co. v. McElroy (1889)
Appeal from the City Court of East St. Louis; the Hon. B. H. Oanby, Judge, presiding.
29 Ill. App. 510Lancaster v. Lancaster (1888)
Divorce—Support of Child—Failure to pay Installments—Action of Debt—Pleading—Improper Defense. 1. Where the diversion of installments for the support of a child, payable under a decree of divorce, can alone excuse further payment, the refusal of the mother to permit the father to see the child is no defense to an action of debt to recover unpaid installments. 2. Non-assumpsit is an improper plea in an action of debt.
29 Ill. App. 513Rockford Insurance v. Seyferth (1889)
Appeal from the Circuit Court of Jackson County; the Hon. Biohard S. Tuthill, Judge, presiding.
29 Ill. App. 516Schwartz v. Schwartz (1889)
Eighabd S. Tuthill, Judge, presiding. Defendant in error filed her bill for separate maintenance and other relief against plaintiff in error, in the court below. An answer denying the material allegations in the bill was filed by him, and also a cross-bill against defendant in error, which she answrered, denying the material allegations therein. Issues were made up, among others an issue of fact, which was submitted to a jury.
29 Ill. App. 528Wilderman v. Pitts (1889)
Appeal from the County Court of St. Clair County; the Hon. John B. Hat, Judge, presiding.
29 Ill. App. 532Manion v. People (1889)
C. C. Boggs, Judge, presiding. At the Hay term, 1887, of the Jefferson Circuit Court, an indictment charging appellant with violation of the provisions of the dram-shop act was returned in open court by the grand jury, with the indorsement thereon, “ A true bill.
29 Ill. App. 543Trescott v. Gross (1889)
Sales—Hickory Nuts—Failure to Ship—Evidence—Instructions—Damages—New Trial. 1. In an action to recover damages for failure to ship a car load of hickory nuts according to contract, this court reverses the judgment in-behalf of defendants as "contrary to the evidence. 2. An offer to enter into a new contract by a person euilty of a breach of a former one, does not absolve him from liability for such breach. 3. It is error to give an instruction which has no basis in the evidence.
29 Ill. App. 546Hapke v. People (1889)
Appeal from the Circuit Court of Randolph County; the Hon. Amos Watts, Judge, presiding.
29 Ill. App. 549St. Louis Bridge Co. v. Schaub (1889)
Master and Servant—Driving upon Highway—Negligenee of Servant— Injury to Team—Special Finding—Act of 1887 —Damages. 1. It is negligenee in the driver of a team to endeavor to pass another team going in the same direction where the roadway is so narrow as to render such act dangerous. 2. In the case presented, this court holds that a special finding by the jury was consistent with their verdict in behalf of plaintiff.
29 Ill. App. 552Price v. Hay (1889)
Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
29 Ill. App. 555Allen v. People (1889)
Criminal Law—Concealed Weapons—Bail—■ Forfeiture — Proceedings against Surety—hidie'ment—Recognizance—Variance as to Name and Court—Evidence—Scire Facias. 1. Upon a writ of scire facias issued upon a judgment of forfeiture against the principal and surety named in a recognizance, it is held: That the fact that the scire facias referred to said principal by his full name, while the recognizance gave his surname and the initial of his given name, the same being so signed by him, does not constitute a fatal variance; and that evidence was properly admitted to show that the person indicted and convicted was the person named in the recognizance. 2. A recognizance is sufficient which sets forth before what tribunal the accused is required to appear with such correctness as to name as will enable him to know, beyond a reasonable doubt, where and when his presence is required. 3. In the case presented, the recognizance requiring an appearance at the next term of the Circuit Court, while the scire facias averred that the appearance was required to be at the next term of the County Court, the variance was of no importance as it is clear that the accused was not misled and that the County Court was the proper tribunal.
29 Ill. App. 561Ohio & Mississippi Railway Co. v. People (1889)
Jesse J. Jones, Judge, presiding. This action in debt was brought in the name of the people for the use of George Locey, to recover from appellant the statutory penalty for failing and omitting its duty to stop its regular passenger train, on which Locey was then a passenger, at the appellant’s railroad station at Carlyle, the county seat of Clinton county, in this State.
29 Ill. App. 567Harrison Machine Works v. Miller (1889)
Amos Watts, Judge, presiding. Appellant brought replevin. to recover from appellee a threshing machine outfit. A trial was had; the jury found for defendant and a judgment on the verdict was entered, to reverse which this appeal was taken.
29 Ill. App. 572Brown v. Board of Education (1889)
Master and Servant—Lotoest Bid—Board of Education—Janitor of Schools—Contract—Breach—Offer to Perform—Burden of Proof—Evidence—In st 1 -wet ions. 1. Where no services are performed under a contract of hiring because of the fault of the employer, the employe may maintain an action for breach of contract, the measure of damages being the wages agreed upon, less any sum earned or which could have been earned by him through the exercise of reasonable diligence in seeking of her employment, 2. The burden of proving that other work was, or could have been, obtained, is upon the employer. 3. Where the employer puts it out of the power of the other to perform, no offer to perform is necessary.
29 Ill. App. 575Younkin v. Essick (1889)
Husband and. Wife—Family Expenses—Medical Attendance—Statute —Existence of Property to be Charged. Medical services rendered to a husband and minor child are “ family expenses” and chargeable upon the property of husband and wife, or either of them.
29 Ill. App. 576Kaemmerer v. Hauser (1889)
Ik error to the Circuit Court of St. Clair County; the Hon. B. H. Cakby, Judge, presiding.
29 Ill. App. 577People v. Smith (1889)
Executions—Priority of Lien—Distribution of Proceeds of Property Sold—Constables. 1. An execution becomes a lien upon the personal property of the judgment debtor from the time of its delivery to a constable. 2. An officer holding a senior execution may, after the levy of a junior execution and before side, levy upon the property and take it from the officer holding the junior execution. 3. It seems that the remedy of a judgment debtor, in whose favor a senior execution is in the hands of an officer who stands by without objecting while property of the common debtor, levied upon under a junior execution, is sold, is against such officer and not against the officer levying the junior execution.
29 Ill. App. 582Louisville, Evansville & St. Louis Railroad v. Hill (1889)
Appeal from the Circuit Court of Jefferson County; the Hon. C. C. Boggs, Judge, presiding.
29 Ill. App. 584Conner v. Akin (1889)
Isr error to the Circuit Court of Franklin County; the Hon. B. H. Can by, Judge, presiding.
29 Ill. App. 586Parker v. Foster (1889)
Replevin—Safe—Evidence. In an action of replevin brought to recover a safe, this court holds that the judgment for plaintiff is not sustained by the evidence as between the parties, the right of possession being in the defendant.
29 Ill. App. 589Herdman v. Cooper (1889)
Homestead—Ownership in Common by Husband and Wife—Value.— Foreclosure—Sale—Subsequent Sale under Execution before Time of Redemption Has Run—Injunctions. 1. Where a husband and wife are owners in common of the property on which they reside, in estimating the value of his homestead bis interest will not be alone considered; and it seems that the right of homestead does not extend to his interest in an adjoining lot within the same inclosure. 2. An undivided interest accompanied by exclusive possession will support the homestead right. 3. A second sale of land under judicial process is not permitted within the time allowed for redemption from a previons sale.
29 Ill. App. 595Overbeck v. Cornwell (1889)
Appeal from the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.
29 Ill. App. 597Moore v. Williams (1889)
Practice—Motion to Dismiss Appeal—Real Property—Conveyance in Consideration of Support — Homestead—Reservation— Abandonment — Failure of Consideration—Restitution. 1. A party to a suit can not enforce a portion of a decree which is in his favor while prosecuting an appeal for the reversal of a portion of the same decree which is adverse to him. ‘2. In the case presented this court dismisses the appeal, the appellants having secured possession of the premises in question by means of a writ of restitution under one part of the decree while prosecuting an appeal to reverse it as to part thereof adverse to them.
29 Ill. App. 600Gallagher v. Kilkeary (1889)
Practice—Motion to Re-docket—Pinal Decree—Freehold Estate—-Wills. Upon a motion to re-docket a cause and set aside the final order entered therein at a former term of court, this court holds that its power over the same terminated with such former term, and that further action on its part would be unauthorized and void.
29 Ill. App. 602American Central Insurance v. Brown (1889)
Appeal from the Circuit Court of .Franklin County; the Hon. Oliver A. Barker, Judge, presiding.
29 Ill. App. 606MacVeagh v. Bailey & Hanford (1889)
Oliver A. Harker, Judge, presiding. Appellees were indebted to Franklin MacVeagh & Co., of Chicago, and had executed four judgment notes, the last one maturing November 17, 1886. On November 20, 1886, John H. Ilamline, as attorney for MacVeagh & Co., had judgment entered by confession by the clerk of the Circuit Court of Jackson county, Illinois, on those notes, to the amount of §1,084.84, and execution at once issued and delivered to' him as such attorney.
29 Ill. App. 615Trustees of Schools v. Love (1889)
Appeal from the Circuit Court of Jasper County; the Hon. William C. Jones, Judge, presiding.
29 Ill. App. 617Foster v. Thomas W. Haymond & Co. (1889)
In error to the Circuit Court of Marion County; the Hon. William II. Snyder, Judge, presiding.
29 Ill. App. 619McCracken v. Soucy (1889)
Municipal Corporations—Election of Supervisor—Officer de Facto—Commons—Schools—Pleading. 1. An election held in the usual place, called by the officer designated by the law to perform that duty, and at the time duly fixed therefor, constitutes the only election provided for by law, although a majority of the legal voters vote at another meeting on the same day, called by an unauthorized person and at an unusual place. 2. It is proper to sustain a demurrer to special pleas coupled with the general issue when they raise an issue which is immaterial. 3. The expenditure of funds coming to the hands of a de facto officer for an unauthorized purpose, is no defense to an action to recover the same though such expenditure is for a useful purpose. 4. Public funds expended by such officer for lawful purposes can not afterward be recovered from him.
29 Ill. App. 622Belleville Savings Bank v. Reis (1889)
Mortgages—Foreclosure—Cross-Bill—Decree Pro Confesso—Motion to Vacate—Petition for Rehearing—Practice—Default—Time of Entry. 1. Under a rule to answer by a certain day named, the time expires so as to justify a default upon the opening of court on that day. 2. A mortgage and note offered in evidence in the court below upon petition for rehearing, the same having been previously decreed, satisfied and discharged, were properly excluded. 3. An application for rehearing made at the second term after decree entered, comes too late.
29 Ill. App. 626Brown, Graves & Co. v. Alexander (1889)
Gaming Contracts—Board of Trade—Options—Action on Notes-Tllegal Consideration—Pleading. 1. In an action on promissory notes, a plea to the effect that they were given for money due on gaming contracts connected with certain dealings in options, presents a good defense without regard to where the notes were made or were payable. 2. In the ease presented, as it does not appear that there was to be any delivery of grain under the-contracts in question, and as it is clear that settlements were to be made on the basis of differences in values, this court holds that the transactions between the parties were of an illegal character, and declines to interfere with the judgment for the defendant.
29 Ill. App. 635Koch v. Quick (1889)
Drainage — Equitable Assignment of Bonds Issued in Payment for Labor—Estoppel—Verdict—Interest. 1. An order upon drainage commissioners to issue bonds payable to a third person or order, in such sum as may be due the maker thereof for labor performed, they promising to comply therewith upon ascertaining the sum due, is an equitable assignment. 2. After such order has been accepted and the maker has left the State, a commissioner having a claim against him is estopped from asserting it against the one in whose favor the order was made. 3. In the case presented, the bonds having been delivered to one of the commissioners, this court sustains a judgment against him in an action for money had and received in favor of the holder of the order.
29 Ill. App. 640Ohio & Mississippi Railway Co. v. Maisch (1889)
Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.
29 Ill. App. 643Lawwill v. Lawwill (1889)
In error to the Circuit Court of Marion County; the Hon. Amos Watts, Judge, presiding.
29 Ill. App. 648Nenninger v. Fietsam (1889)
Arbitration—Administration—Sale of Lands to Pay Debts—Insufficient Petition—Statutes—Practice—Decree. 1. A petition for a decree to sell lands for the payment of debts, which fails to disclose the date of the death of the intestate and of the granting of letters of administration, and whether the claim was allowed within two years from the granting of such letters, is insufficient. 2. The petition in question is also insufficient to authorize a decree of sale of subsequently acquired assets to satisfy a claim allowed after two years. 3. The distribution of the p-'rsonal assets within two years will not, in the case of a claim allowed or judgment recovered within such time, authorize a sale of real estate for the payment thereof, except in case of a deficiency of personal assets. 4. In such cases objections to an answer must be taken by exception. 5. The findings in a judgment against an administrator are not in such cases conclusive against the heir, and can not be held to aid either the want of averments in the petition or the finding of necessary facts in the decree of sale. 6. In the case presented, the decree finds none of the facts required by Sec. 107, Chap. 3, Starr & C. Ill. Stat., nor is it sufficient under the amendatory act of 1887.
29 Ill. App. 654Rockford Insurance v. Travelstead (1889)
Fire Insurance—Application—False Representations—Waiver—Acts qf A gent — Estoppel — Adjustment—Inconsistent Defenses—Pleading—Incomplete Bill of Exceptions. 1. An insurance company which, with knowledge of fraudulent representations in an application, demands proofs of loss, is estopped from setting up such representations in defense of an action on the policy. 2. Where an insurance company is estopped from setting up a given defense by acts of its adjuster amounting to a waiver, it can not escape liability through a condition in the policy limiting such agent’s authority to bind the company. 3. Where one has an election between inconsistent courses of action, he will be held to that which he first adopts. 4. The assignment of errors should be. attached to the record. 5., In the case presented it is held: That the court below properly excluded the original application, which was not offered .until after the argument was commenced: that the service does not show false representations on the part of the plaintiff; and that the defendant is estopped from setting up a defense which is inconsistent with the acts of its adjuster.