31 Ill. App.

Volume 31 — Illinois Appellate Court Reports

151 opinions

31 Ill. App. 17Edson Keith & Co. v. McDonald (1889)
Appeal from the County Court of Mason County; the Hon. William E. Nelson, Judge, presiding.
31 Ill. App. 22Hart v. Burch (1889)
Appeal from the Circuit Court of Morgan County; the Hon. Cyrus E. Epler, Judge, presiding.
31 Ill. App. 24Corwine v. Talbot (1889)
Evidence—Interview—Exclusion—False Representations. The exclusion of evidence of a conversation, if erroneous, is cured by its subsequent admission in connection with evidence, which is denied, that it was communicated to the adverse party.
31 Ill. App. 26Rohn v. Harris (1889)
Jurisdiction—Ferry—Franchise—Title—Practice. 1. "This com t is without jurisdiction of an appeal involving a ferry right which is a franchise. 2. A proceeding for partition of a ferry right involves title. 3. Where this court is without jurisdiction of the subject-matter of the appeal, it will dismiss the same on its own motion.
31 Ill. App. 28Jayne v. Murphy (1889)
Administration—Gift Causa Mortis—Wills—Revocation. . i AL gift causa mortis may be revoked by the donor before death. A will jluUsequently made amounts toa revocation.
31 Ill. App. 30Lutterell v. Caldwell (1889)
Í Instructions—Division' Fence—Trespass. It is error to give an instruction which has no basis in the evidence.
31 Ill. App. 32Dempsey v. Whiteside (1889)
Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
31 Ill. App. 36Chicago & Alton Railroad v. Fisher (1889)
Appeal from the Circuit Court of Menard County.
31 Ill. App. 47Lake Erie & Western R. R. v. Rosenberg (1889)
Appeal from the Circuit Court of McLean County; the Hon. Alfred Sample, Judge, presiding.
31 Ill. App. 50Seymour v. Edwards (1889)
Administration—Conspiracy to Defraud Legal Heirs—Jurisdiction— Evidence—Admissions—Parties—Unknown Heirs—Practice. 1. A bill charging conspiracy to defraud legal heirs and alleging that the complainants were in ignorance thereof until after the settlement of the estate in question, will justify the intervention of a court of chancery. 2. To an action of this character all known heirs must be made parties, and, as to unknown heirs, summons must issue in conformity with the statute. 3. Persons whose names and places of residence are easily obtainable can not be made parties as unknown heirs. 4. It is sufficient if the facts upon which a decree is based appear in the record.
31 Ill. App. 57Terre Haute & Peoria Railroad v. Barr (1889)
Railroads—Injury at Highway Crossing—Negligence—Failure to Give Statutory Signal—Obstruction to View—Contributory Negligence—Special In errogatories—Answers to—Evidence—Instructions. 1. It is negligence in a railroad company to allow its right of way to Recome so grown with vegetation at a crossing as to obstruct, the view of ils servants approaching the same by train, or of persons upon the highway. 2. It is prima facie negligence to omit the statutory signal upon approaching a crossing. 3. It is not necessarily negligent in a person to fail to stop and listen upon approaching a crossing. 4. In an action brought to recover damages from a railroad company for injuries received at a highway crossing, this court declines'to interfere with a. verdict for the plaintiff. ñ. The jury may answer that they do not know, in reply to special interrogatories touching matters to which the evidence does not warrant any other.
31 Ill. App. 62Village of Clayton v. Brooks (1889)
Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
31 Ill. App. 67Harting v. Jockers (1889)
G. W. Heedman, Judge/presiding. Amended hill: Humbly complaining, your orator, Michael Hurting, by this, his amended bill of complaint herein tiled by leave of the court first had and obtained, represents and shows unto your honor, that on the 17th da)7 of June, 1870, one Jacob Huester, Sr., for value received by him, executed and delivered unto one Jacob Huester, Jr., his certain promissory note of that date, for the sum of four hundred and forty dollars ($440), payable to…
31 Ill. App. 75Henderson v. Coons (1889)
Railroads—Personal Injuries—Improperly Placed Cattle Guard— Assumption of Risk—Contributory Negligence—Damages. 1. In an action brought to recover for the death of a railroad brake- man, alleged to have been caused by the improper placing of a cattle guard with reference to the head of a switch, it is held: That the switch was appropriately placed; that any danger that could arise therefrom was a risk assumed as an incident of the employment; and that deceased was guilty of contributory negligence in endeavoring to uncouple cars of a train while the same was in motion. 2. A brakeman who has been running over a certain piece of road for about three weeks may be presumed to know the location of a cattle guard with reference to a switch, whether any switching has been done by him at such point or not.
31 Ill. App. 78Wing v. Beach (1889)
Negotiable Instruments-—Bills—Indorser's Liability—Notice of Dishonor— Waiver of—Extension of Time tvUhout Indorser's Consent— Eviden ce—Instruction s— Verdict. 1. Where a bill is accepted, payable at a certain bank which is its holder, no formal demand for payment is necessary at maturity. 2. In such a case a tender of collaterals given to secure a general indebtedness evidenced by several acceptances and renewals, of which that in question is one, need not be made. 3. An indorsement on a negotiable instrument, seemingly amounting, (o an extension thereof, may be shown, in the light of other facts, to have an entirely different meaning. 4. Upon a contention as to whether the indorser of a bill waived notice' of non-payment thereof, this court declines_to interfere with a special finding in the affirmative.
31 Ill. App. 90Lake Erie & Western R. R. v. Pike (1889)
Railroads—Personal Injury at Crossing—Contributory Negligence— Parent and Child—Evidence. 1. In an action against a railroad company to recover damages for the death of a child, alleged to have been occasioned by the defective condition of a street crossing, this court holds that, notwithstanding such defects, the proximate cause of the death was the gross negligence of a person with whom the deceased was riding with his father’s consent. 2. In an action of this character the negligence of the parent, or of those placed in charge of the child by the parent, may be shown in defense.
31 Ill. App. 96Smith v. Belt (1889)
Contract for Support of Parent—Evidence—Admissions and Declarations—-New Trial—Newly Discovered Evidence. 1. In an action to recover upon an alleged express agreement on the part of a son to pay for the support of his mother, this court declines to interfere with the verdict for the plaintiff. 2. The court below properly denied a motion for a new trial on the ground of newly discovered evidence, such evidence being an alleged admission by the opposite party made to the attorney of the appellant before the trial.
31 Ill. App. 98Lamb v. Johnston (1889)
Limitations—Note—Payment—Evidence—Instructions—Error without Injury. 1. In an action upon a promissory note, the contention being as to whether a sum indorsed thereon was a voluntary payment after the running of the statute of limitations, this court declines to interfere with a verdict for the plaintiff. 2. Where the evidence is closely conflicting, and that for the plaintiff considered alone is sufficient to sustain the verdict for him, this court will not interfere. 3. An error without injury to the appellant is not sufficient ground for reversal.
31 Ill. App. 100McNulta v. Ensch (1889)
Bailroads—Personal Injuries—Failure to Make Sufficient Stop to Discharge Passengers—Contributory Negligence—Conflict of Evidence— Instructions. 1. Where a train comes to a stop in about the usual time and at about the usual place, after the announcement of a station, a person on board is justified in presuming that it is for the discharge of passengers, and may recover damages for injuries received while attempting to alight. 2. The fact that the train starts after a moment and stops a reasonable time a few yards further on, can not affect the right of recovery. 3. The plea of not guilty on the part of the alleged receiver of a railroad company in an action by a passenger to recover for injuries received, renders it unnecessary to prove his official character.
31 Ill. App. 104Linck v. City of Litchfield (1889)
Costs—Interest—Sec. 3, Chap. 71, S. S. A judgment for costs bears interest, being within Sec. 3, Chap. 74, R. S.
31 Ill. App. 106Warsaw Milling Co. v. Berry (1889)
Appeal from the Circuit Court of Hancock County; the Hon. C. J. Scofield, Judge, presiding.
31 Ill. App. 107Town of Nokomis v. Harkey (1889)
Appeal from the Circuit Court of Montgomery County; the Hon L. A. Creighton, Judge, presiding.
31 Ill. App. 109McFadden v. White (1889)
Drainage—Subordinate Ditches—Bill to Restrain Extension and Repair of—Demurrer Sustained. 1. Upon a bill to restrain drainage commissioners from making certain appropriations from the general fund for the purpose of extending and repairing subordinate ditches, and to require such officers, as well as others to return to the district treasury moneys already expended for such work this court holds that the court below properly sustained the demurrer of the respondents. 2. In such cases it is to be presumed that the commissioners are acting in compliance with the law until the contrary is clearly made to appear.
31 Ill. App. 110Lake Erie & Western Railroad v. Faught (1889)
Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
31 Ill. App. 112Shaffer v. Travelers' Insurance (1889)
Appeal from the Circuit Court of Vermillion County; the Hon. C. B. Smith, Judge, presiding.
31 Ill. App. 114Lowentrout v. Campbell (1889)
Appeal from the Circuit Court of McLean County; the Hon. Owen T. Reeves, Judge, presiding.
31 Ill. App. 118Linck v. City of Litchfield (1889)
• Appeal from the Circuit Court of Montgomery County; the Hon. J. A. Greighton, Judge, presiding. Statement. Copy of declaration. In Circuit Court, Hov. Term, 1887. State of Illinois, 1 gg Montgomery County, j. Christian Linck, plaintiff in this suit, by his attorney, complains of the city of Litchfield, defendant. Summoned, etc., of a plea of trespass on the case.
31 Ill. App. 126Illinois Central Rail Road v. Neer (1889)
Railroads—Personal Injuries—Wild Trains—Running of Trains Under Special Instructions—Rules and Regulations—Usage and Practice— Failure to Give Notice—Position of Trains—Contributory Negligence— Evidence—Instructions. 1. In the running of train's, no order inconsistent with due care for the safety of persons or property, should be made or obeyed. 2. Special orders to make a run within a specified time are not absolute, but must be executed with a view to the exigencies of the case. 3. A special order may be assumed to supersede a standing rule only where they in terms conflict, or where it is or should be foreseen that its execution will be incompatible with such standing rule. 4. Where its incompatibility with the standing rule arises from the happening of e ents which could not have been foreseen, and not caused by the action of the giver of the order, with reasonable ground to expect that effect, the special order must yield. 5. The question as to whether the system of a railroad company in the movement of its trains is consistent with due care, is for the jury. 6. In an action brought to recover damages from a railroad company for the death of one of its servants, alleged to have been caused by its failure to give notice of the position of a preceding train, this court holds that the fifty-four" claimed instances of the giving of such notice out of 11,000 orders touching the movement of trains over the same piece of road within a specified time, can not be relied upon as establishing such to be the practice of the company. 7. In the case presented, it is held: That an instruction to the effect that, as it was not reasonably possible to carry out both the special order and the general rule, it was for the jury to decide which should have been obeyed, was erroneous; that there can be no recovery on the ground of failure to give notice," such failure being consistent with the long established usage of the company; that such usage was prudent and proper; that it was known to deceased; that the dangers thereof were assumed by him; and that the accident in question was the result of his own negligence.
31 Ill. App. 139Bohrer v. Stumpff (1889)
Appeal from the Circuit Court of McLean County; the Hon. Alfred Sample, Judge, presiding.
31 Ill. App. 142Roberts v. Carter (1889)
Negotiable Instruments—Notes—Exchange after Maturity—Waiver of Interest—Technical Consideration—Evidence—Instructions. 1. Where the parties to a contract voluntarily enter into a new agreement, varying its terms, whereby new liabilities are involved and assumed, such act gives rise to a new consideration, the adequacy of which is a question for the parties alone and not for the court. 2. In an action brought for the recovery, among other things, of interest on an overdue promissory note, which was delivered to the maker after maturity in exchange for new notes made by him, there being a contention as to the terms upon which said exchange was made, this court holds as erroneous the refusal of the trial court to instruct the jury in behalf of defendant, that an agreement upon the part of the payee of such overdue note to waive all interest on the receipt of new notes, would be based upon a good and sufficient consideration. 3. An instruction not based upon the evidence is bad.
31 Ill. App. 148Mitchell v. Plaut (1889)
Appeal from the County Court of Vermillion County; the Hon. D. D. Evans, Judge, presiding.
31 Ill. App. 151German Insurance v. Gueck (1889)
Fire Insurance—Bill to Correct Policy and Enforce Payment—Evidence —Mistake. Upon a bill to correct a policy of fire insurance, and enforce its collection, this court declines to interfere with a decree granting relief, as the evidence clearly shows a mistake.
31 Ill. App. 155Linck v. Whipple (1889)
Nuisances—Instructions—Evidence, An instruction stating that the jury may disregard the uncorroborated evidence of a witness, if they believe he has sworn falsely upon a material question, without specifying that, they must be satisfied that the false statement wa» knowingly and wilfully made, is erroneous.
31 Ill. App. 156Miller v. Dyas (1889)
Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
31 Ill. App. 158Pells v. Snell (1889)
Appeal from the Circuit Court of Ford County; the Hon. C. B. Smith, Judge, presiding.
31 Ill. App. 170Illinois Central Railroad v. Ross (1889)
Railroads—Trespass—Master and Servant—Malicious Assault by Servant—Flagman—-Sec. 99, Chap. 114, R. S.—Scope of Employment—Use by Public of Railroad Right of Way—Personal Difficulty—Damages, Vindictive and Actual. 1. A master is liable in damages, vindictive as well as actual, for a tortious act done by his servant, within the scope of his employment and in good faith with a view to the furtherance of his master’s business. 2. By Sec. 99, Chap. 114, R. S., a flagman’s duties are limited to his crossing, and do not extend to the right of way beyond, unless the same is actually in use as and for a crossing. 8. A flagman should take the necessary steps to prevent an injury to another from trains and the like, although it requires him to leave his post of duty, unless by so doing more serious consequences would be apt to arise. 4. Flagmen can not, by any action of their own, extend the scope of their duties. 5. Am ister is not liable for his servant’s tort growing out of acts within the scope'of the employment, when such tort is separated from all that preceded it, and is clearly distinguishable as to time, motive and object, and is on purely personal account. 6. In an action of trespass brought to recover damages from a railroad company for an alleged malicious assault by one of its employes, this court holds that the altercation leading up to the same was of a personal character, and that it was entirely inconsistent with, and outside the scope of, the employment.
31 Ill. App. 183Ohio, Indiana & Western Railway Co. v. Johnson (1889)
Railroads — Personal Injuries — Servants — Brakeman — Projecting Water Spout—Jerk of Train—Evidence—Instructions—Damages. 1. In an action to recover from a railroad company, damages for the death of one of its servants, through being struck by a projecting water spout, this court declines to interfere with a verdict for the plaintiff. 2. An objection to an instruction touching the measure of damages will not be considered, where the sum awarded is less than the wages of deceased, less living expenses, would have amounted to up to the time of his becoming of age.
31 Ill. App. 188Langston v. Murphy (1889)
Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding,
31 Ill. App. 190Illinois Central Railroad v. Trowbridge (1889)
Appeal from the County Court of De Witt County; the-Hon. George K. Ingham, Judge, presiding.
31 Ill. App. 199Pearson v. Zehr (1889)
Trespass—Contagious and Infectious Diseases—KVling of Horses by Live Stock Commissioners—Evidence—Experts—Instructions—Damages. 1. In an action of trespass brought against live stock commissioners for entering upon private premises and killing ho;ses, said to be afflicted with glanders, und r the act of June, lk85, this court holds that the court below erred in admitting evidence as to the symptoms observed years before, of other horses supposed to have been afflicted with the same disease. 2. As a foundation for the introduction of evidence in such cases, it must first be shown that the witness has knowledge of the disease in question, its symptoms, character and results, after which he may give his conclusion and opinion based uoon his experience. 3. In the case presented, it is held that damages given in the sum of $2,100 are excessive, in view of the fact that the property destroyed was oniy valued at $800.
31 Ill. App. 203Harper v. A. R. Corbin & Co. (1889)
Appeal from the Circuit Court of Hancock County; the Hon. C. J. Scofield, Judge, presiding.
31 Ill. App. 206H. H. Orendorff & Co. v. Myers (1889)
Appeal from the Circuit Court of Fulton County; the Hon. John C. Bagby, Judge, presiding.
31 Ill. App. 208Drennan v. Huskey (1889)
In error to the Circuit Court of Christian County; the Hon. Charles S. Lane, Judge, presiding.
31 Ill. App. 214Stockon v. Lochnitt (1889)
Replevin—Writ of Retorno—Landlord and Tenant—Cross-Error—Evidence—Costs. 1. A tenant can not maintain replevin for the recovery of fence rails, originally removed with the consent of his landlord, their owner. 2. In the ease presented, this court holds as erroneous the action of the trial court in setting aside its order for the return of property replevied, subsequent to a verdict .in behalf of defendant in accordance with its instruction.
31 Ill. App. 217Lochnitt v. Stockon (1889)
Appeal from the Circuit Court of Christian County; the Hon. J. J. Phillips, Judge, presiding.
31 Ill. App. 219People v. Commissioners of Wild Cat Special Drainage District (1889)
Drainage—Formation of District—Quo Warranto—Insufficient Petition —Discretion of Court—Abatement—Demurrer. 1. Where the various steps for the organization of a drainage district are taken in conformity with the statute, the finding of the court binds all who might have objected thereto. 2. Upon a contention that the petition was not signed by a sufficient number of persons to comply with the statute, it appearing that the signature which professed to carry with it the bulk of the lands which lay within the bounds of the proposed district, was that of a corporation, it is held: That the right of such corporation to hold real estate can not be inquired into in a proceeding of this character. 3. The court may decline to proceed with an inquiry in the nature of a quo warranto, when it appears that the interests involved are of a private character. 4. The proceeding may he abated upon demurrer in the discretion of the court, when the pleadings disclose a state of facts that would have warranted a refusal for leave to file in the first instance.
31 Ill. App. 223Edwards v. Hushing (1889)
Appeal from the Circuit Court of Montgomery County ; the Hon. J. J. Phillips, Judge, presiding.
31 Ill. App. 227Seymour v. Seymour (1889)
Garnishment—County Court—Jurisdiction—Assumption of Debt of Another—Novation—Estoppel—Interest. 1. Where property is conveyed with the understanding that the grantee shall assume certain debts of the grantor, his creditors agreeing to look to the former for payment, it amounts to a complete novation. 2. A general statement of a garnishee as to the sum in his hands previous to the beginning of suit, does not estop him from showing, upon trial, the correct amount. 8. The County Court has jurisdiction of garnishment proceedings, where the balance in the garnishee’s hands, after deductions and credits, is less than $1,000.
31 Ill. App. 234Tomlin v. Blunt (1889)
Injunctions—Conveyance of Property for Religious Purposes—Stipulation—Repugnancy—Exclusion of Sect Entitled to Use of Edifice. 1. The term “ evangelical orders of Christians ” in' an instrument, is to be understood in its ordinary sense, and has no uncertain meaning. 2. A condition in a grant of property to a particular sect for church purposes, that the building when not in use by said sect “ shall be open to all evangelical orders of Christians,” is not repugnant to the grant. 3. The right to use such edifice at proper times may be enforced in the interest of any such order, in case of its wilful or malicious exclusion therefrom.
31 Ill. App. 239Hankins v. Beatty (1889)
Appeal from the County Court of Macon County; the Hon. W. E. Nelson, Judge, presiding.
31 Ill. App. 241Ramson v. Kitner (1889)
Dogs—Damages for Killing. ' In an action brought to recover the value of a dog mistaken for a wolf and killed, this cgurt holds that the defendants are liable for the damages resulting from tlieir mistake.
31 Ill. App. 242Soby v. People (1889)
Gaming Contract—Board of Trade—Bucket Shope—Options—Act of July, 1887—Intention—Indictment. 1. Upon an indictment under the act ,of July, 1887, touching trading in options, it is proper to show the intention of those entering into the contracts claimed to have been within such act. 2. The guilty intention of the keeper of a place wherein such business is carried on, consists in knowingly allowing such transactions, it being understood that there is to be no receipt or delivery of the property involved. 3. It makes no difference in such cases whether the keeper is directly interested in the deal in question. 4. A count based upon a section of a legislative act referring to accessories, seeking to reach the principal, is bad. 5. In the case presented, the court holds that the verdict of guilty must stand, it being supported by two good counts, although the others are< defective.
31 Ill. App. 252Consolidated Coal Co. v. Maehl (1889)
Master and Servant—•Personal Injuries—Defective Engine—Contributory Negligence—Mines and Miners—Special Interrogatories—Refusal to Submit to Jury—Completion of Verdict after Sepiai'ation—Evidence—Instructions. 1. It is proper to refuse to submit to the jury questions touching facts which fully appear in evidence, and-upon which no reliance is placed bv the opposite party. 2. The jury may be sent out to complete their answer to special findings after they have agreed upon a general verdict and separated. 8. In an action brought under the statute touching mines and miners, to recover damages for the death of an employe resulting from the use of a defective engine, this court holds that the evidence sustains the verdict for the plaintiff.
31 Ill. App. 259Cramer v. Forbis (1889)
Appeal from the Circuit Court of Logan County; the Hon. G. W. Herdman, Judge, presiding.
31 Ill. App. 260Harts v. Byrne (1889)
Negotiable Instruments—Note—Partnership—Payment of Private Debt out of Partnership Funds—Collusion—Burden of Proof—Delay in Discovery of Misappropriation—Consent—Evidence. 1. A partner has no right to use partnership funds to pay a private indebtedness. 2. Where partnership funds have been so applied it is not necessary to show that the creditor knew such payment was a misapplication of such funds; the nature of the act should put him on inquiry, and the burden of proof is on him to repel every presumption of negligence on his part and of cullusion or fraud, in the absence of other evidence to repel such presumption. 3. The fact that the creditor released his claim upon property securing the debt so paid, does not vary the general rule.
31 Ill. App. 263Longan v. Taylor (1889)
Appeal from the Circuit Court of Logan County; the Hon. G. W. Herdman, Judge, presiding.
31 Ill. App. 267Savage v. Eakins (1889)
Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
31 Ill. App. 271First National Bank of Springfield v. Ryan (1886)
Appeal from the Circuit Court of Sangamon County.
31 Ill. App. 276Smith v. Kurrus (1889)
Appeal from the City Court of East St. Louis, St. Clair County; the Hon. B. H. Canby, Judge, presiding.
31 Ill. App. 278Maxwell v. Buntin (1889)
Appeal from the Circuit Court of Crawford County; the Hon. William C. Jones, Judge, presiding.
31 Ill. App. 281Louisville, Evansville & St. Louis Railway Co. v. Lewis (1889)
Railroads—Damages for Injury to Stock—Fence—Practice—Evidence. 1. A verdict will not be set aside where the evidence is conflicting, unless it appears that the jury have been actuated by passion or prejudice. ‘¿. In an action against a railroad company to recover damages for the killing of a horse, this court declines to interfere with a verdict for the plaintiff.
31 Ill. App. 282St. Louis Bridge Co. v. Fellows (1889)
Appeal from the City Court of East St. Louis, St. Clair County; the Hon. B. H. Caney, Judge, presiding.
31 Ill. App. 284Schmitz v. Village of Germantown (1889)
Municipal Corporations—A dditions—Streets—Statutory Dedication— Failure to Accept—Estoppel—Instructions. 1. An acceptance- is as necessary to complete a statutory dedication as one at common law. 2. In the case presented, this court holds that the failure.of the municipality to accept the statutory dedication of the street in question estops it to open the same to the injury of a person having had undisturbed possession of a portion thereof for thirty-two years.
31 Ill. App. 288Consolidated Coal Co. v. Wombacher (1889)
Master and Servant—Personal Injury—Fellow Servant—Inexperienced Employe— Vartan ce—Min es. In an action to recover from a coal company damages for a personal injury alleged to have arisen through its negligence in placing an inexperienced servant in a dangerous situation without cautioning him thereof, this court holds that the night boss, under whose direction the plaintiff undertook the work which led to the injury, was not his fellow servant, lut a vice-principal of the master, who should have warned said employe of the danger and how to avoid it; and that there is no material variance between the allegations of the declaration and the proof.
31 Ill. App. 293Price v. Hay (1889)
Attorney and Client—Agency—Implied Contract—Recovery of Fees—■ Evidence—Instructions1—Rules of Court. 1. In an action brought by an attorney to recover a sum claimed to be due for legal services, it is held: That the finding of the jury as to the employment was justified by the evidence; that an instruction touching the question of implied contract was properly refused; and that the verdict as to amount is justified by the evidence. 2. Testimony as to the value of legal services must.be based upon the judgment of witnesses.
31 Ill. App. 295Illinois Mutual Insurance v. Hoffman (1889)
Fire Insurance—Inconsistent Conditions—Construction—Indemnity. 1. The object of the contract of insurance being indemnity, such contracts must be construed liberally to that end. 2. Where a clause in a policy is susceptible of two construclions, that which is most favorable to the assured, as regards indemnity for loss, must be adopted. The same rule applies where two clauses"are inconsistent.
31 Ill. App. 299Wheeler v. Wayne County (1889)
In error to the Circuit Court of Wayne County; the Hon. C. S. Conger, Judge, presiding.
31 Ill. App. 302Klein v. People (1889)
Mandamus—Defective Highways—Failure of Commissioners to Repair •—Discretion. 1. Mandamus is the proper remedy to compel commissioners of highways to make repairs when there is entire neglect on their part in this regard. 2. Such officers have a certain discretion, and can not be ordered to improve and repair in any particular manner. 3. In the absence of a finding by the court that there is money in their hands that can be expended for the purpose in question, commissioners can not be ordered to make such expenditure. 4. An order may be made that money be expended when collected.
31 Ill. App. 306Tudor Iron Works v. Weber (1889)
Master and Servant—Personal Injury—Machinery and Appliances—Furnishing of, and Repairs—Vice Principal—Scope of Employment— Comparative Negligence—Contributory Negligence—Assumption of Risk— Fellow Servants—Evidence—Clothing—Damages—Instructions. 1. An employer must provide suitable and safe machinery, reasonably adapted to perform the-work for which it was calculated, and keep the same in proper repair, and is liable for any injury arising through a failure to perform his du,ty in either respect. 2. A servant intrusted by the master to keep and put machinery in proper condition, is not the fellow servant of one employed to use the same. 3. The question, whether an appliance was properly made or repaired, is for the jury. 4. It is proper to allow the plaintiff, in an action for the recovery of damages for a personal injury, to put on the clothes worn by him when the same occurred, in order to show how the accident happened. 5. In an action of this character, it being alleged that the injury was occasioned'through the negligent repair of a coupling, this court holds that the plaintiff was justified in assuming the same to be in proper condition, and declines to interfere with a verdict in his behalf.
31 Ill. App. 314Terre Haute & Indianapolis Railroad v. Voelker (1889)
Railroads—Personal Injury at Street Crossing—Action for Damages— Dangerous Rate of Speed—Statutory Signal—Ordinance—Sec. 9, Art. 4, Prir. Latas 1889—Comparati ve Negligence—Contributory Negligence—■ Spedal Interrogatories—Evidence—Instructions. 1. Under Sec. 9, Art. 4, Priv. Laws of 1869, the signature of the mayor is unnecessary to the va'idity of an ordinance. 2. In view thereof, the introduction in evidence of a copy of an ordinance accompanied by the certificate under seal of the city clerk, setting forth the accuracy of the same, can non be complained of. 8. It is prima facie negligence in a railroad company to fail to place a bell or whistle upon each of its locomotives, or to give the statutory signal when approaching a crossing. 4. Negligence is a question of fact for the jury, except where the conclusion of negligence necessarily results from the facts. 5. An instruction which states that facts set out in certain counts of the declaration, which have been held good on demurrer, will, if proven, justify a verdict for the plaintiff, may be properly given. 6. It is proper to give an instruction to the effect that, if the averments of the declaration as to the acts of the defendant are proven, they warrant • a verdict, the person injured being at the time of the accident in the exercise of due care. 7. It is proper to instruct the jury that the running of a train within corporate limits, at a higher rate of speed than is allowable under an ordinance, is an act of negligence whicii will warrant a recovery in case of an ■accident caused thereby, due care being exercised by the person injured. 8. An instruction may be given to the effect, that in order to recover for an injury, a person need not be wholly free from negligence, provided he uses ordinary care and his negligence is slight in comparison with that ' of the other party, which is gross. 9. It is proper in such cases to modify an instruction, seeking to have the question of negligence determined by the court, in such manner as to leave it to the jury, with whom it belongs. 10. The court miy modify a proposition sought to be submitted to the jury for their special finding, so that the same shall have reference to an issue as made by the pleadings in the case, in regard to a fact that must be affirmatively shown before a verdict can be sustained. 11. In an action against a railroad company to recover damages for causing the death of plaintiff’s intestate, this court declines to. interfere with a verdict for $-3,500 in her behalf.
31 Ill. App. 325Carlyle Water, Light & Power Co. v. City of Carlyle (1889)
Municipal Corporations—-Contract—Ultra Yires—Water Company—Unsatisfactory Test—Indebtedness—Constitutional Limit—Monopoly—Propositions of Law—Practice Act, Sec. 42—Evidence—Instructions. r 1. A city reserving only the right to dictate to a water company as to the source of supply, can not do so as to the location of a standpipe. 2. Propositions of law. to be held or1 refused by a court sitting without a jury, must be presented before verdict. 3. Upon the proposition that a contract, giving a water company the exclusive right to supply for twenty-one years, was ultra vires as interfering with the legislative power of the city, this court holds that the same should not be held void for such reason, but simply voidable so far as it is' executory. 4. In an action brought to recover on a contract between a municipal corporation and a water company, it is held: That there is no merit in the plea that the indebtedness created by the contract exceeded the constitutional limit, the amount being figured on the as-umption that the rental of hydrants for twenty-one years was a present indeb edness; that no appropriation was necessary on the part of the municipality, at the time of or before entering into the contract; and that but one test of a series of four hydrants could be required.'
31 Ill. App. 340Patterson v. Collar (1889)
Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
31 Ill. App. 350Behymer v. Odell (1889)
Real Property—Penalty for Cutting Trees on Lands of Another—Title —Possession—Practice—L cidence. 1. In an action brought to recover (he statutory penalty for cutting trees upon the land of another, the plaintiff, to recover, must show a title in fee. 2. A deed granting real property, subject to the right on the part of the grantor to cut and remove therefrom during his lifetime, timber for his own nse, conveys a fee. 3. Where the statute provides for the recovery of a certain sum per tree the judgment must be for some multiple thereof. 4. This court will not go behind the record, showing a motion in arrest of judgment, upon grounds which affidavits filed tend to show were never brought to (he atteniion of the trial court.
31 Ill. App. 353Gammon v. Wright (1889)
In error to the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.
31 Ill. App. 359Trustees of Schools v. Southard (1889)
Negotiable Instruments—Note—School Funds—Principal and Surety —Request to Sue—Sec. 58, Chap. 122, R. S.—Agency—Costs. 1. A notice by one of several co-sureties on a note on his own account to the payee thereof to sue, will not, in case of a failure to do so within a reasonable time, discharge the rest. 2. It may be shown, in a suit brought upon a promissory note by the payee, that persons signed the same as sureties, although it does not so appear on the face of the note, and no notice has been given. 3. Under the statute two or more sureties are necessary upon the loan of school funds, and where there are several signers, the presumption arises that the treasurer of the board did his duty and acted in conformity with the law, and that at least two of such signers are sureties. 4. A provision in a note that no extension of time of payment, with or without the knowledge of the sureties thereon, should release them or either of them, is not a perpetual waiver of their statutory right to demand an effort by the payee to collect. 5. Notice to sue, by sureties upon a note made to the trustees and given upon a loan of school funds, directed to the treasurer of the board of trustees alone, is insufficient. It should also be given to the board of trustees.
31 Ill. App. 364Consolidated Coal Co. v. Schaefer (1889)
Appeal from the Circuit Court of St. Clair County; Hon. William H. Snyder, Judge, presiding.
31 Ill. App. 368Ditch v. People (1889)
Appeal from the Circuit Court of Monroe County; the Hon. B. H. Canby, Judge, presiding.
31 Ill. App. 369Webber v. Mackey, Nisbet & Co. (1889)
Robert W. McCartney, Judge, presiding. This suit was on a replevin bond executed by appellees to Tanner, U. S. Marshal, who was succeeded in office by appellant.
31 Ill. App. 378Commissioners of Highways v. Newby (1889)
Highways—Condemnation—Irregular Acta of Commissioners—Certiorari—Pleading—Secs. 13 and. 32, Art. 2, Constitution—Compensation— Laches—Evidence—Costs. 1. In proceedings for the condemnation of private property for public use, the law must be strictly complied with before the owner is disturbed. 2. Condemnation without just compensation is forbidden. 8. Upon petition lor a writ of certiorari to review the proceedings of highway commissioners in establishing a road, this court holds that Certain papers, proceedings and affidavits, filed as an amended return to the writ, were properly stricken from the files, as seeking to establish matters aliunde the record by r.iis.ng an issue of fact to be tried by the court. 4. Where the board have complied with the provisions of the statute in relation to establishing such highway, their proceedings and order establishing the same being regular and lawful, and itsoapp1 a-s upon inspection of the record, it is the duty of the court to quash such writ; but if, upon such inspection, it does not so appear, said record and proceedings s.-ould be quashed.
31 Ill. App. 385Bernhard v. Brown (1889)
Appeal from the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.
31 Ill. App. 386Kuenster v. Board of Education (1889)
Schools—Employment of Teachers—Want of Certificate—Injunction— Recovery of Wages—Districts of More Than2,000 Inhabitants. Upon a bill brought to restrain a township treasurer from paying, the board of education from issuing an order for the payment of, and the receipt of payment by a teacher not holding a certificate of qualification from the county superintendent of schools, the board in question being that of a district containing more than 2,000 inhabitants, this court holds that under Sec. 80 of the.general school laws, it was authorized to examine and employ teachers not possessing such certificates.
31 Ill. App. 389Buettner v. Village of Percy (1889)
Appeal from the County Court of Bando! ph County; the Hon. Warreen N. Wilson, Judge, presiding.
31 Ill. App. 390Guebert v. Zick (1889)
Fraudulent Conveyances—Creditor's Bill—Assignment—Declarations and Admissions. Upon a bill to set aside deeds executed at different times, and conveying various interests in the same property to the same grantee, it being alleged that such conveyances were in fraud of creditors, and to subject the real estate in question to the payment of certain judgments, it is held: That the evidence does not justify the assumption that the first conveyance made was tainted with fraud; that the declarations and admissions of the grantor, made to a third person, touching s-.lid sale and conveyance, were not competent to prove the grantee’s knowledge of the grantor's intent, or his participation in any fraudulent purpose on her part; and that a later deed, given by another party in interest, must be looked upon as fraudulent and void as against the judgment in question.
31 Ill. App. 393Springfield Fire & Marine Insurance v. Newman (1889)
Practice—Bill of Exceptions. The motion for a new trial and the documentary evidence and instructions complained of must be preserved in the bill of exceptions, or error can not be assigned thereon.
31 Ill. App. 394Graffenreid v. Kundert (1889)
Appeal from the Circuit Court of Madison County; the Hon. William H. Snyder, Judge, presiding.
31 Ill. App. 398Halliday v. St. Paul Fire & Marine Insurance (1889)
Fire Insurance—Cancellation—Condition—Notice. In an action on a policy of fire insurance, this court holds there can be n» recovery, owing to the carrying of other insurance on the property in question without notice.
31 Ill. App. 400Moore v. Bruner (1889)
Ix error to the County Court of Massac County; the Hon. J. C. Wbllis, Judge, presiding.
31 Ill. App. 404Thomason v. Clark (1889)
Appeal from the Circuit Court of White County; the Hon. C. S. Conger, Judge, presiding.
31 Ill. App. 408Nichols v. Wallace (1889)
Clair County; the Hon. William H. Snyder, Judge, .presiding. Appellees, as judgment creditors of Louis Nichols, filed bills in the Circuit Court of St. Clair County to set aside and cancel a deed from Nichols to his wife, conveying about one hundred and seventy-eight acres -of land in St. Clair county, and to subject said land to the payment of judgments recovered against Nichols. The two causes were consolidated and tried as one.
31 Ill. App. 415Telford v. Telford (1889)
Appeal from the Circuit Court of Marion County; the Hon. William H. Snyder, Judge, presiding.
31 Ill. App. 417Consolidated Coal Co. v. Young (1890)
Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding,
31 Ill. App. 420McGuire v. Goodman (1889)
Malicious Prosecution—ProbaVe Cause—Trespass—Cutting Trees— Evidence—Dochet Entries—Judge’s Minutes—Instructions. 1. In an action for malicious prosecution brought by a person previously arrested upon an information charging trespass in cutting timb r, the charge having been dismissed before trial, this court holds that the evidence does not sustain the claim that there was not probable cause for the prosecution in question. 2. When an action of this character is based upon proceedings in a justice court, the docket entries of the justice may, upon the refusal of the defendant- so to stipulate, be admitted to show the termination of the criminal proceedings therein. 3. The minutes of the county judge upon his docket can not be substituted for the record of the court. It alone is competent to prove that which is required to be proven by the record. •4. A mistake or error not amounting to gross negligence will not affect the question of probable cause, when there is an honest belief on the part of the party swearing out a warrant for the arrest of another that such person is probably guilty.
31 Ill. App. 423Turner v. Norton (1889)
Appeal from the Circuit Court of Lawrence County; the Hon. William C. Jones, Judge,- presiding.
31 Ill. App. 426People ex rel. James v. Borders (1889)
Guardian and Ward—Principal and Surety—Receipt in Full—Agency —Estoppel—Evidence—Secs. 2 and 4, Chai). 57, R. S.—Instructions. 1. In an action to recover from the sureties on a guardian’s bond the amount shown to be due upon the settlement of his account, this court holds that the contention that the ward, without receiving the same, executed a receipt in full therefor for the purpose of discharging said guardian and the sureties upon his bond, and made an agreement with the former to act as her agent and to handle for her benefit, and not to pay over the balance so found to be due, is unsupported by the evidence. 2. The fact that the ward signed such receipt did not estop her after the lapse of six or seven years from asserting her claim against said sureties, as it does not appear that the receipt caused any change of conduct on their part. 3. An instruction attempting to recite the facts of a case should embrace all the facts. 4. An instruction stating that a ward must demand payment from her guardian in his lifetime, and upon his death give notice to the sureties on his bond of non-payment as conditions precedent to recovery, is erroneous. 5. Secs. 2 and 4, Chap. 57, R. S., do not prohibit a ward from answering in proceedings of this character, inquiries as to whether a deceased guardian ever paid any of the moneys due from him, and whether he was ever constituted agent to handle same.
31 Ill. App. 435Chicago & Alton Railroad v. Willard (1889)
Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
31 Ill. App. 441Telford v. Garrells (1889)
William H. Snyder, Judge, presiding. Garrells filed his hill in the Circuit Court against Joseph Telford and wife and said assignees of T. Ryhiner & Co. to foreclose a trust deed executed 'by Telford and wife to secure the payment of twelve notes for $1,000 each,, dated April 21, 1880, payable to Ryhiner & Co., all of said notes, except the one last due, executed by the Telfords, and the last one signed by the husband only.
31 Ill. App. 453Miller v. Gray (1889)
Negotiable Instrument—Note—Principal and Surety—Notice to Sue— Unreasonable Delay. In view of the circumstances, this court holds that a suit commenced upon a promissory note thirty-six days after notice from the surety thereon to bring suit, was not brought in apt time.
31 Ill. App. 456Centralia & Chester Railroad v. Henry (1889)
Appeal from tlie Circuit Court of Washington County; the Hon. William H. Snyder, Judge, presiding.
31 Ill. App. 459Centralia & Chester Railroad v. Brake (1889)
Railroads—Construction—Right of Way—Condemnation—Damages— Appeal Bond,—Immaterial Issue—Repleader. 1. In an action brought against a railroad company on an appeal bond given by it in condemnation proceedings, this court directs the award of- a repleader, for the reason that defendant’s special plea, on which issue was joined, made an immaterial issue, and for the further reason that it does not appear that the bond upon which suit is brought was offered in evidence in the trial court. 2. A verdict can not aid an immaterial issue.
31 Ill. App. 460Spannagle v. Chicago & Alton Railroad (1889)
In error to the City Court of East St. Louis, St. Clair County; the Hon. B. H. Canby, Judge, presiding.
31 Ill. App. 465Gurley v. People (1889)
Bastardy—Release of Claim—Fraud and Duress—Evidence. Upon bastardy proceedings, the defense being the execution of a release of all claims in consideration of the payment of a certain sum of money, this court holds that the same was procured through fraud and misrepresentation, and declines to interfere with a verdict for the plaintiff.
31 Ill. App. 467Mateer v. Green (1889)
Sales—Fraud—Estoppel in pais—Evidence. 1. In order to support the plea of estoppel in pais, it must be shown that but for the acts and declarations of the one party which it would be inequitable to allow him to retract, the other would never have taken the position occupied by him. 2. In an action involving the title to a half interest in a stock of goods, this court holds that the plaintiff is estopped through his acts from setting up and maintaining his claim thereto.
31 Ill. App. 471Knowles v. Village of Wayne City (1889)
Municipal Corporations—Profane and Obscene Language—Ordinance— Penalty—Appeal by Municipality upo i Acquittal of Defendant—Bond— Sec. 62, Chap. 79, Starr. & C. Ill. Stats. 1. An action instituted for the recovery of a penalty provided for by a municipal ordinance prohibiting the use of profane and obscene language, is of a civil character. 2. The mode adopted to bring into court a person charged with such breach, whether by summons or warrant, does not change the nature of the action. 3. In such cases either party has the right of appeal. 4. An objection to the appeal bond in a case of this sort, first made in this court, comes too late.
31 Ill. App. 476Lewis v. Cockrell (1889)
Clerics—Payment of Judgment to—Motion for Rule to Pay Over— Attorney and, Client—Fees—Assignment. 1. A clerk of the Circuit Court is not authorized to receive money in satisfaction of a judgment. 2. Where there is a dispute as to the ownership of money in the bands of a clerk of the court, the remedy is by a proceeding at law or in equity, and not by rule of court directing payment to particular claimant. 8. It seems that in order to justify a rule upon the clerk to pay over money, it must first appear that it is in his hands jn his official capacity as clerk.
31 Ill. App. 483Borders v. People (1889)
In error to the Circuit Court of ¡Randolph County; the Hon. George W. Wall, Judge, presiding.
31 Ill. App. 486Rockford Insurance v. Storig (1889)
Fire Insurance—Vacancy—Special Findings—Evidence—Instructions. 1. Provisions in insurance policies in the nature of forfeitures must be construed strictly. 2. The question of occupancy or non-occupancy of a building insured is one offset, to be decided by the jury under the instructions of the court. 3. The use of a building insured as a dwelling for some, but not all the purposes common to such structures, does not amount to vacancy.
31 Ill. App. 490Mobile & Ohio Railroad v. Davis (1889)
Railroads—Personal Injuries—Collision at Highiray Crossing—Statutory Signals—Contributory Negligence—-Tampering with Juror by Attorney of Record,—Evidence. 1. In an action to recover damages from arailroad company for an injury received at a highway crossing through the alleged failure to give the statutory signal, the evidence being conflicting and the proof insufficient to establish contributory negligence on plaintiff’s part, or intentional wrong on the part of his attorney in approaching, before the termination of the suit, a juror therein, this court declines to interfere with verdict for plaintiff. 2. The statute touching signals applies to streets in incorporated towns.
31 Ill. App. 493City of Flora v. Naney (1889)
Municipal Corporations—Personal Injuries—Contributory Negligence-Defective Sidewalk—Evidence—Instructions. 1. Permission granted by a municipality to a private citizen to build a sidewalk, does not absolve it from the duty of seeing that the same is kept in proper repair. 2. A person may, in the exercise of reasonable care, rightfully walk upon a sidewalk, although the same is obviously out of repair.
31 Ill. App. 496Metropolitan Life Insurance v. Broach (1889)
Clair County; the Hon. William H. Snyder, Judge, presiding. Broach brought suit before justice against appellee for his salary as agent, and on June 27, 1888, recovered judgment for §200; the transcript shows an appeal was thereupon taken to the Circuit Court at Belleville. At the September term, 1888, of that court, and on the 19th day of November, the defendant, who was the appellant by leave of the court, filed a set-off.
31 Ill. App. 503Cohen v. Menard (1889)
William H. Snyder, Judge, presiding. Edmond Menard died testate in August, 1SS4, seized in fee of the lands in controversy, and Menard and Hanner were appointed executors of his estate, and acted as such.
31 Ill. App. 506Luecken v. Wuest (1889)
Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
31 Ill. App. 511Ging v. H. Robinson & Son (1889)
Practice—Bill of Exceptions—Attachment—Fraudulent Concealment— Interpleader—Instructions. The motion for a new trial and instructions complained of must be preserved in the bill of exceptions in order to warrant a consideration of the errors assigned.
31 Ill. App. 513Indiana & Illinois Southern Railroad v. Sampson (1889)
Appeal from the Circuit Court of Jasper County; the Hon. William C. Jones, Judge, presiding.
31 Ill. App. 517Bruner v. Nisbett (1889)
Negotiable In strum enfs—Note—Order upon Employers in Favor of Creditor—Acceptance—Evidence—•Verdict. In an action to recover On an alleged acceptance of an order, given by a debtor upon his employers in favor of a creditor, the contention being as to whether the same was accepted by said employers, this court holds that the objection to the testimony of a certain witness as incompetent, being fiis • made in this court, comes too late; that the testimony of such witness was admissible to show the admissions and actions of said employers with reference to such acceptance and its genuineness; that it was proper to let such acceptance go in evidence; that declarations of a deceased member of the firm of employers were properly admissible by way of impeachment; that upon cross-examination the surviving member thereof might be interrogated, he having upon direct examination denied the execution of the acceptance, as to whether the bank carrying the account of the firm had ever with his knowledge made payments to the payee of the order on account of the drawer; that the court did not err in refusing to admit .evidence as to the financial condition of such firm at the time of the alleged acceptance, nor in permitting defendant to testify as to alleged statements made by him with reference to. a previous verbal agreement between the same parties; that the failure to prove payment by the indorsee of a consideration for the order, can not be complained of in the absence of evidence going to show that the transaction involving the acceptance was outside the partnership business; that the evidence warrants the finding of knowl edge of acceptance on the part of the surviving member of the firm of employers; and that the verdict for plaintiff in view of the fact that tlv acceptance was unqualified, was not excessive.
31 Ill. App. 527Hinckley v. Cheney (1889)
Chattel Mortgages—Hotel Furniture—Breach of Condition—Conversion by Mortgagee—Set-off—Instructions. 1. Upon seizure of property under chattel mortgage for condition broken, the same must be disposed of in accordance with the terms of the mortgage. 2. This court will not consider an alleged erroneous ruling of the trial court upon objections first made on appeal. 3. In an action upon promissory notes, one of which was secured by chattel mortgage on hotel furniture taken possession of by the mortgagee for condition broken, this court holds that the retention thereof for an unreasonable time by the mortgagee and his assignee rendered said mortgagee liable in the value thereof to the mortgagor, notwithstanding his permission that the same might be used by the tenant of the assignee when in charge of the hotel, upon his request, and that said property was a sufficient set-off as against the amount claimed to be due on said notes.
31 Ill. App. 530Luft v. Gossrau (1889)
Isr error to tlie City Court of Alton, Madison County; the Hon. James E. Dunnegan, Judge, presiding.
31 Ill. App. 537School Directors v. Kimmel (1889)
Appeal from the County Court of Jackson County; the Hon. W. W. Barr, Judge, presiding.
31 Ill. App. 544Louisville, Evansville & St. Louis Railroad v. Harlan (1889)
Appeal from the Circuit Court of Wayne County; the Hon. C. S. Conger, Judge, presiding.
31 Ill. App. 545Huschle v. Morris (1889)
Replevin—Sale—Chattel Mortgage—Retention of Possession by Mortgagor—Evidence—Instructions. 1. The jury may be instructed to find for defendant, where the evidence given, with all the inferences that they can justifiably draw from it, is so far insufficient to support a verdict for plaintiff, that such a verdict, if returned, must be set aside. 2. In an action of replevin brought to gain possession of a stock of goods attached as (he property of another, the contention being that the same were previously sold and conveyed to plaintiff, this court holds that there was no such transfer thereof prior to the levy of the writs of attachment as was necessary to sustain the title of the claimant as against the attaching creditors; that in view of the chattel mortgage thereon running to said claimant, his allowing the mortgagor to remain in possession upon the understanding that he was to continue retailing the goods so covered, rendered the mortgage fraudulent as to said creditors; that the mortgage having been made on the day of the alleged sale, was properly admitted in evidence as a part of the transaction; that it was proper to allow the cross-examination of the mortgagor as to the same; and that, in the light of the evidence, it was not erroneous on the part of the trial court to direct the return of a verdict for defendant.
31 Ill. App. 550Hummert v. Stempel (1889)
In error to the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
31 Ill. App. 554Griffin v. Wolf (1889)
Fraudulent Conveyances—Evidence. Upon a bill seeking to subject certain lots - to the payment of a judgment, t being alleged that the several conveyances of the same were made and accepted for the purpose of hindering and delaying the collection thereof, this court holds that the evidence does not support the allegations of the bill.
31 Ill. App. 556C. Aultman & Co. v. Huddlestun (1889)
In error to the Circuit Court of Jasper County; the Hon. William O. Jones, Judge, presiding.
31 Ill. App. 558Hoffman v. Reichert (1889)
Forcible Entry and Detainer—Leasehold Interest in Coal Lands— Attachment—Redemption—Corporate Property—Officers—Personal Profit —Evidence. 1. Personal property can not be recovered in an action of forcible entry and detainer. 2. A director of a corporation can not deal with the corporate property for his own benefit, or use it for his individual purpose. 8. Neither can he claim that possession taken by him of such property is an individual possession, and set it up to the exclusion of the corporation. 4. In an action of forcible entry and detainer brought to recover a leasehold interest in coal lands, the fact being that plaintiff, the treasurer and a director of the lessee company, obtained judgment against it upon a debt, and levied upon such interest which was bought in by him upon a sale under execution, this court holds that as plaintiff failed to give said company notice that he took possession in his own behalf, such possession was that of the company alone; that the digging of coal thereafter, by said company, invaded no rights of his; and that money expended by him for the purpose of freeing the mine from water could be recovered.
31 Ill. App. 563Toledo, St. Louis & Kansas City Railroad v. Cline (1889)
Railroads—Personal Injury — Contributory Negligence — Comparative Negligence—Statutory Signal—Ordinary Care—Evidence—Instructions. ' 1. The fact that a train may not be reasonably expected from a certain direction, will not excuse a person from looking that way. 2. It is as much the duty of trainmen to look out for persons approaching a highway crossing, as for such persons to note a train near at hand. 3. Under the statute, the engine bell must be rung or the whistle sounded continuously from a point eighty rods from a crossing until the same is reached. 4. The question of ordinary care on plaintiff's part is for the jury. 5. A court can not in any case inform the jury what is or is not ordinary care or negligence. 6. This court will not interfere with a verdict, unless it appears that there is no evidence upon which the same can rest, or that the finding is against the clear weight thereof. 7. The doctrine of comparative negligence has no application to a case in which the plaintiff failed to exercise ordinary care. 8. The common law duty of a railroad company is to, in some way, but not necessarily by bell or whistle, give reasonable warning to persons approaching highway crossings of the proximity of its trains.
31 Ill. App. 572Malaer v. Damron (1889)
. In error to the Circuit Court- of Jolmson County; the Hon. Robert W. McCartney, Judge, presiding. Plaintiffs in error bring up for review the record of proceedings in chancery to foreclose a mortgage, and ask for a reversal of the decree, and that the sale of the mortgaged premises and deed to the purchaser be set aside.
31 Ill. App. 576Cook v. Miller (1890)Reversed and remanded with directions
C. C. Boggs, Judge, presiding. This cause was once before us and is reported in 26 Ill. App. 421.
31 Ill. App. 590Pomeroy v. Villavossa (1889)
Malicious Prosecution—Probable Cause—Larceny. To maintain an action for malicious prosecution, the want of probable cause must be clearly shown.
31 Ill. App. 592Frank v. Taubman (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
31 Ill. App. 594Swanson v. Matson (1889)
Capias—Habeas Corpus—Bail—Forfeiture—Chap. 28 B. S.—Failure to Set out judgment in Action on Bond. 1. A person in custody under final process in a civil case can not be set at liberty temporarily on any form of security except under the act concerning insolvents. 2. An order of court to the sheriff to take bail prohibited by the statute does not make it valid or give the party sought to be benefited any remedy upon the same.
31 Ill. App. 596Chicago & Western Indiana Railroad v. Rolvink (1889)
Appeal from the Superior- Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
31 Ill. App. 596Fish v. Wheeler (1889)
Practice—Judgment by Default—Undisposed-of Demurrer. It is improper to render a judgment by default, while a demurrer to (he declaration is on file and undisposed of.
31 Ill. App. 599Roby v. Murphy (1889)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
31 Ill. App. 601Chicago, Milwaukee & St. Paul Railway Co. v. Halsey (1889)
Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
31 Ill. App. 611Howard v. Costello (1889)
Practice—Appeal by One of Several Defendants—Sec. 70, Act of 1873. Where less than the full number of defendants appeal from the decision of a justice, those not appealing must be summoned, or return of not found had, before the case can be disposed of.
31 Ill. App. 612Gunderson v. Sirborn (1889)
Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
31 Ill. App. 614Blackman v. Bloom (1889)
Trespass—Removal of Household. Furniture—Chattel Mortgage—Evidence—Instructions. In an action to recover damages suffered through the removal of household furniture claimed under a chattel mortgage, this court holds that the instructions were improper.
31 Ill. App. 615Weill v. Fontanel (1889)
In error to the Superior Court of Cook County; the Hon John P. Altgeld, Judge, presiding.
31 Ill. App. 616Wynn v. Longley (1889)
In error to the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
31 Ill. App. 618Bagley v. Grand Lodge of Ancient Order of United Working Men (1889)
Ufe Insurance—Conditions—Failure to Pay Assessments—Forfeiture —S.pecial Interrogatories—Evidence. 1. Under a provision in the constitution of a mutual benefit society, that a beneficiary certificate suspended by reason of non-payment of assessments “ may be renewed if the member be living,’’ there can be no waiver of such forfeiture by payment after the death of assured. 2. The verdict below being for the defendant, error can not be assigned upon the failure of the jury to answer sp -cial interrogatories submitted by defendant, upon the understanding that they were not to be considered unless the verdict was for the plaintiff. 3. Where different documents are introduced in evidence, each purporting to be the constitution of an organization ata certain time, it is for the jury under proper instructions to find which was in force at the time in question.
31 Ill. App. 621Chicago West Division Railway Co. v. Ryan (1889)
Master and Servant—Street Railway Company—Negligence of Servant of—Injury to Third Person—Infant—Evidence—Instructions. 1. It is no evidence o£ negligence in parents in modest circumstances, to allow an infant child to be taken upon the street in charge of. a brother, aged fifteen years. 2. A claim that the child was injured through the negligence of its temporary guardian, can not be considered in the absence of evidence tending to show that the boy was known to be untrustworthy and incompetent. 3. In an action against a street car company to recover for a personal injury alleged to have been occasioned by the negligence of one of its drivers, this court declines to interfere with verdict for plaintiff.
31 Ill. App. 624Le Moyne v. Harding (1889)
Tax Titles—Validity of—Freeholds—Jurisdiction. This court has no jurisdiction of a case involving a freehold estate.
31 Ill. App. 625Race v. Traders Insurance (1889)
Fire Insurance—Conditions—Vacancy—Mortgage Clause—Subrogation —Deed of Trust—Foreclosure—Injunction. Upon a bill and cross-bill filed by insurance companies to foreclose a deed of trust upon certain property under agreements of subrogation contained in mortgage clauses attached to certain policies, said agreements providing that in case of loss and payment to the mortgagee or trustee of the whole debt due upon assignment to the insurers of the debt and all securities evidencing his claim upon the premises in question, should said insurers take the ground that no liability existed as to the mortgagor, this court holds, that the right of the companies to foreclose depends upon the avoidance of the policies upon purely legal grounds; that the proceedings at law instituted by assured would, if allowed to take their course, result in establishing the rights of the companies, and that in view of the general principle that the granting of equitable relief must be founded on a legal right, the bill in the case presented was prematurely filed and must be dismissed.
31 Ill. App. 630Rigdon v. Conley (1889)
John P. Altgeld, Judge, presiding. An action was brought by John W. Conley against C. W. Rigdon to recover an amount alleged to have been paid to relieve certain property purchased by Conley from Rigdon of an incumbrance which Rigdon ought to discharge. Rigdon fi'ed a plea of set-off claiming that Conley was indebted to him in some $7,000.
31 Ill. App. 636Walker v. Rand (1889)
Appeal from the Superior Court of Cook County; the Hon. Egleet Jamieson, Judge, presiding.
31 Ill. App. 637Underwood v. Wolf (1889)
Elliott Anthony, Judge, presiding. This action was brought to recover the contract price for refrigerating machines and apparatus furnished and set up by appellee for appellants in their packing house under the following contract: “ This agreement made and entered into at Chicago, this eighth day of February, 1886, by and between Fred W. Wolf, of the city of Chicago, county of Cook, State of Illinois, party of the first part, and Phineas L. Underwood, James Viles, Jr., and…
31 Ill. App. 647Rutter v. Hall (1889)
Appeal from the Circuit Court of Cook County; the Hon. Hurray F. Tuley, Judge, presiding.
31 Ill. App. 649Fitzpatrick v. Chicago & Western Indiana Railroad (1889)
In error to the Circuit Court of Cook County; the Hon. A. N. Waterman, Judge, presiding.
31 Ill. App. 651Byrne v. Clark (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding. '
31 Ill. App. 652Goudy v. City of Lake View (1889)
Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
31 Ill. App. 653Anglo-American Packing & Provision Co. v. Baier (1889)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
31 Ill. App. 658Taylor v. Kirby (1889)
Injunctions—Order Denying Motion to Dissolve—Act of June, 1887— Proceedings Involving Validity of Statutes—Legislative Acts—Subject-matter—Title—Sec 13, Art. 4, Constitution of 1870. 1. This court will not consider an appeal from an order denying a motion to dissolve an injunction brought under the provisions of an act entitled, “An Act to provide for appeals from interlocutory orders granting injunctions or appointing receivers,” although the body of such act provides in addition that appeals may be taken from orders refusing to dissolve or enlarge the scope of an injunction, or give further powers to a receiver already appointed. 2. It seems that if an act embracing more than one subject expresses them all in the title, the whole act is void, and that if the title expressed one only, so much is valid, and the residue void. If the subject is but one, and the title is so narrow as to express only part of it, so much as thenarrowness of the title excludes is void.