Volume 32 — Illinois Appellate Court Reports

<p>Appeal from the Circuit Court of Montgomery County; the Hon. J. Fouke, Judge, presiding.</p>

<p>Marriage Settlement—Alleged Trust Fund—Bill in Equity by Children against Father to Secure Accounting for Fund Alleged to Hare Been Held in Trust for First Wife.</p> <p>Complainants are children of appellee by ’a former wife, who died intestate. Prior to his first wife’s death she became entitled, under the will of her father, to a distributive share of his personal estate. She personally settled with the executor of her father’s estate for this share, by receiving from him a note given by her husband as part of the purchase price of their home farm, purchased by him some time before, and having indorsed upon another similar note the balance of the share due her. The note paid in full she turned over to her husband. The husband subsequently paid out of his own means the balance of the other note. Subsequently the wife, with her husband, sold land devised to her by her father, and the proceeds were chiefly used for household expenses and by the husband in his business. Held: That appellee, there being no evidence of an express trust, was not chargeable as a trustee of the funds or property received from his wife for the benefit of her or her children; and that even if the wife had been presumed to have purchased the notes, which were secured by a purchase money lien on the home farm, to protect her dower right, and she were to be considered as subrogated to the creditor’s security, that lien could not be enforced under a bill seeking to charge the husband as trustee.</p>

<p>Negotiable Instruments—Note—Statute of Limitations—New Promise— Interest.</p> <p>1. Where indorsees o£ a promissory note, on which the statute of limitations had run, indorsed upon its back an agreement to accept a sum less than the amount for which it was given, in full satisfaction thereof, during the current year, and the maker wrote below, “I accept the above condition,” and signed his name, this court holds that the act in question constituted a valid contract on which an action would lie at its maturity.</p> <p>2. Interest at six per cent (the original note providing for interest at ten per cent) should be allowed after the maturity of the new contract.</p>

<p>In error to the Circuit Court of Greene County; the Hon. C. Epler, Judge, presiding.</p>

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

<p>Municipal Corporations—Village Trustees—Power of President and Trustees to Pet-ermine the Election and Qualifications of Members—Chancery Jurisdiction.</p> <p>1. Upon a bill in chancery filed by three village trustees to prevent another from exercising the functions of such office, it is held: That the evidence failed to support the allegations of the bill; and that the bill failed to present grounds for equitable jurisdiction.</p> <p>2. Where, by express statutory provision, the president and trustees of a village are vested with the power to judge of the election and qualifications of their own members, the exercise of this power is one of the public duties of the board, and chancery will not interfere therewith where no property rights, strictly considered, are concerned.</p>

<p>Guardian and Ward—Guardian's Report—Form of—Interest—Rent— Growing Crops—Administrator's Right to Sell—Improvement of Ward’s Estate—Negligence.</p> <p>1. A guardian’s report though not in precise form will be sufficient if it clearly shows the rights of the ward.</p> <p>2. A guardian is not properly chargeable with interest after he has tendered to the judge of the County Court the funds in his hands, and has been instructed to place the same in bank until further orders.</p> <p>3. A guardian, by making repairs and improvements on bis ward’s lands without a previous order of court, does not lose the right to be repaid for them, but does assume the burden of showing, on application for credit therefor, that they were necessary and proper, to the interest of the ward, and paid for at reasonable rates.</p> <p>4. Under Sec. 94, Chap. 3, R. S., an administrator is authorized to sell crops growing on his intestate's lands at the time of his death and apply the proceeds to the payment of decedent’s debts.</p> <p>5. In the case presented, sundry minor exceptions are overruled, the decree of the court below being supported by the evidence.</p>

<p>Railroads—Injury to Stock—Evidence—Verdict.</p> <p>In an action against a railroad company for injuries to stock upon defendant’s track, alleged to have been caused by the negligent management of one of its trains, this court declines to interfere with verdict for plaintiff.</p>

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

<p>Criminal Law—Information—Charge of Assault with Deadly Weapon against Two Defendants—Conviction of One-—Instructions—-Costs.</p> <p>1. Where an information charged the plaintiff in error and his brother with an assault with a deadly weapon, “ to wit, a club and knife,” an instruction to the jury that the information charged the defendants with making an assault with a deadly weapon with intent, etc., and that if the jury believe, from the evidence, beyond a reasonable doubt, that the defendants, as charged, did make the assault with a deadly weapon with an intent, etc., and where no considerable provocation appeared, or the circumstances showed abandoned and malignant hearts, they should return a verdict of guilty, was not erroneous, although the evidence tended to show an assault by the plaintiff in error alone and with a club only.</p> <p>2. A deadly weapon is a weapon likely to produce death or great bodily harm by the use made of it.</p> <p>3. It is not error for the court to refuse certain instructions, although they contain a correct statement of the law on the topics covered by them where the jury are elsewhere properly instructed on the same points.</p> <p>4. In the case presented, this court declines to interfere with the decision of the court below, refusing an apportionment of costs, it not appearing that any costs were made, not necessary for the prosecution of the case as against the plaintiff in error.</p>

<p>. In error to the Circuit Court of Morgan County; the Hon. C. Epler, Judge, presiding.</p>

<p>In error to the Circuit Court of Douglas County; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Account—Master's Report.</p> <p>Decree of Circuit Court entered in accordance with a master’s report upon a complicated account is affirmed.</p>

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

<p>Appeal from the Circuit Court of Vermillion County; the Hon. E. P. Vail, Judge, presiding.</p>

<p>Life Insurance—Membership—Certificate in Benefit Association—Action on—Statements in Application—Representations or Warranties—Question of Law—Evidence.</p> <p>1. Where a contract is reduced to writing there is no fact affecting its terms for the jury to find. The law then determines the intent of the parties from the written expression, and so fixes its meaning, which it is the province of the court to declare.</p> <p>2. In an action on a certificate of membership in a mutual benefit association this court holds, that the answers in the application were, as matter of law, unconditional warranties, and that evidence tending to show their simple untruth, without regard to the knowledge or good faith of the insured or beneficiaries, was admissible.</p>

<p>Railroads—Personal Injuries—Pleading—Action against Defendant in Representative Capacity—Plea of General Issue—Responsibility of Receiver for Negligent Acts Done under his Predecessor—Careful Habit of Deceased—Evidence of, When Admissible—Judicial Notice—Instructions.</p> <p>1. In an action against a receiver in his representative character, allegations in the declaration of the orders of court appointing the defendant and his predecessor, are admitted by a plea of the general issue and need not be proved.</p> <p>2. Petitions on file for the removal of the case to the Federal Court, in which the defendant alleges his appointment as receiver by such court, can be judicially noticed by the court and avoid the necessity of proof of defendant’s appointment as receiver.</p> <p>3. Where an injury is received through the negligence of the servants of a railroad corporation in the hands of a receiver, the action for such injury is properly brought against the receiver of the company at the time the action is brought, though he was not the receiver at the time the accident occurred.</p> <p>4. Where there is no living witness of an accident causing the death of the person in question, evidence as to his habits, whether careful or otherwise, is admissible in an action against the party through whose alleged negligence the accident occurred.</p> <p>5. Refinements in verbal criticism upon instructions are not to be encouraged and will not lead to the reversal of a case where it appears that the jury were not misled.</p> <p>6. It is not error for the court to decline to give instructions which are but repetitions in substance of those already given.</p>

<p>Landlord and Tenant—Bent—Lien on Crops—Construction of Statute— Bona Fide Purchaser.</p> <p>A bonafide purchaser of farm crops, from a tenant, takes them subject to the lien of the landlord under the statute, for unpaid rent. The statute itself gives to such purchasers of this class of property sufficient warning to put them on inquiry</p>

<p>Appeal from the Circuit Court of Vermillion County; the Hon. E. P. Vail, Judge, presiding.</p>

<p>Replevin—Instructions—Evidence.</p> <p>1. In an action of replevin this court declines to consider alleged errors of the court below, it not appearing that injury resulted therefrom.</p> <p>2. The use of the word “ testimony ” instead of “evidence,” in an Instruction to the jury, is not error.</p>

<p>Municipal Corporations—Defective Highway—Personal Injury—Negligence of City—Accident and Negligence Concurring—Estoppel.</p> <p>1. The erection by a city of an embankment in a highway fourteen feet high and thirty feet wide, a street car track with rails three inches high running just to one side of the center line thereof, constitutes negligence.</p> <p>2. The use of a young and inexperienced horse does not necessarily constitute negligence.</p> <p>3. The fact that the city has other streets, perfectly safe, which the plaintiff might have used, can not be urged in defense to an action for the recovery of damages for an accident due to its negligence.</p> <p>4. Where a person, in the exercise of due care, is injured by the combined result of accident and negligence of a city, and the injury would not have occurred but for such negligence, the city will be liable.</p>

<p>Gaming—Contracts Void for Illegality—Wager—Payment before Decision—Action against Stakeholder.</p> <p>A stakeholder who, before the wager is or can be decided, pays the money over to one of the parties, makes himself liable to the other party for the amount of his deposit.</p>

<p>Replevin—Stipulation to Submit Case to County Judge—Judgment Thereunder—Right of Appeal—Damages on Affirmance of Judgment for Plaintiff.</p> <p>1. A judgment in favor of the plaintiff in an action of replevin having been affirmed by this court, a stipulation was Sled in the court below to waive order of affirmance, reinstate the case and submit it to the judge of the court: Held, that an appeal would lie from the judgment entered upon trial under the stipulation.</p> <p>2. It having been determined in a chancery proceeding between the same parties that a note and chattel mortgage had been given by appellees to appellant to secure the performance of an original agreement between the parties, and that appellees had not complied with their part of it, this court holds that appellant was entitled to hold the property covered by the mortgage, or so much thereof as would cover the costs and expenses occasioned by appellees’ failure to comply with their contract.</p>

C. A. Myers, Judge, presiding. In 1883, Jesse Bowen, being the owner of a brickyard west of the city of Bloomington, gave a real estate mortgage thereon to one Abbott. Abbott thereafter assigned the mortgage to Osborne Barnard, one of the defendants in error. The facts of the case further appear in the opinion.

<p>Drainage—Injury to Lands—Flowage—Negligence—Ditches—Insufficiency of—Quasi Corporations.</p> <p>A drainage district, organized under the law in force in 1879. is a quasi corporation and not liable for the negligent acts of the commissioners, although they result in damage to private property.</p>

<p>Negotiable Instruments—Note — Guaranty — Defenses — Banks—Payment of Cheeks Irregularly Signed—Credit Therefor.</p> <p>The guarantor of a promissory note given to a bank can not defend in an action against him on the same by the bank, on the ground that the maker, a corporation which had been a depositor of plaintiff, had funds in the bank sufficient to pay the note, where the only basis for such claim is that the bank had credited itself with certain checks, paid by it, but which were irregularly signed, the same having been made and used by the officers of the corporation in its business and for its benefit, and where some months bad elapsed since the payment of the checks (the bank book of the depositor having been several times balanced) and the bank had received no notice of dissatisfaction until the bringing of suit.</p>

<p>Sales—Separator—Warranty—Failure of—Note—Set-off.</p> <p>In an action upon a promissory note given by the purchaser of a separator, the contention involving the questions of warranty and set-off, this court declines to interfere with verdict for the defendant.</p>

J. J. Phillips, Judge, presiding This was an action in assumpsit brought by the county of Montgomery against John J. McLean to recover from him certain moneys paid to him from the county treasury of Montgomery county, Illinois, on county warrants, drawn on the treasurer of said county, by order of the board of supervisors.

<p>Master and Servant—Railroads—Personal Injuries—Wild Trains— Scetion Hand—Contributory Negligence—Rules—New Trial.</p> <p>In an action by a section land against the railroad company employing him, to recover for injuries alleged to have been caused through the negligent management of one of its trains, this court holds that the judgment of the trial court in behalf of the plaintiff is unsupported by the evidence.</p>

<p>Appeal from the Circuit Court of Vermillion County; the Hon. E. P. Vail, Judge, presiding.</p>

<p>Mortgages—Foreclosure—Payment—Witnesses—Credibility.</p> <p>Upon a bill to foreclose a mortgage, it being contended that the note it was given to secure had been paid, the evidence being sharply conflicting and the credibility of the witnesses of prime importance in the consideration of the case, this court declines to interfere with decree for plaintiff.</p>

<p>Sheriffs—Compensation for Keeping Jail—Assistant.</p> <p>Under the laws of this State it is a part of the official duty of the sheriff to keep the county jail. He is entitled to no compensation therefor in addition to his salary, except as it may be provided by the county board, and he can not maintain an action against the county for money paid by him to an assistant jailer.</p>

<p>Husband and Wife—Separate Maintenance—Justifiable Abandonment —Evidence—Allowance—Costs.</p> <p>Upon a petition under the statute by a wife for separate maintenance, this court declines to interfere with decree for complainant.</p>

<p>Appeal from the Circuit Court of Piatt County; the Hon. E. P. Vail, Judge, presiding.</p>

<p>Negotiable Instruments—Promissory Note—Action by Administratrix of Iidorsee—Fraud and Circumvention in Procuring Signature—Evidence —Instructions.</p> <p>1. In an action on a promissory note by the administratrix of the indorsee, he having died after suit brought, where the defense relied on was fraud and circumvention on the part of agents of the payee in procuring the signature to the note, the maker of the note was a competent witness under Sec. 2, Chap 51, R. S., 3d exception, as to conversations or transactions with him testified to by said agents at plaintiff’s instance, said agents having a direct interest in the result of the suit.</p> <p>2. If payee’s agents did not have a direct interest in the result of the suit, then defendant was a competent witness as to conversations or admissions by him testified to by these agents at plaintiff’s instance, under the 4th exception. Under this exception all that was said and done on the occasion testified to, the res gestee, was admissible.</p> <p>3. In an instruction to the jury, the omission of the qualification that false testimony must be with regard to a material matter in issue in order to justify the jury in disregarding the whole testimony of a witness whose testimony is false in part, does not constitute reversible error, where it is apparent that all the supposed false testimony to which the instruction referred was upon material points. Minor exceptions to instructions overruled.</p>

<p>Appeal from the Circuit Court of Shelby County; the Hon. Jacob Folks, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Vermillion County; the Hon. E. P. Vail, Judge, presiding.</p>

<p>Power of Attorney—Revocation by Death.</p> <p>The recital in a power of attorney of the specific purpose for which it was given, to wit, to collect a debt due the constituent, and with the proceeds pay an obligation of his, does not affect its character as a naked power, nor presently divest or invest an interest in the fund; and the collection of the debt by the attorney, after the death of the constituent, and the application of the proceeds to the payment of the specified obligation of deceased, does not release deceased’s debtor from subsequently paying the administrator.</p>

<p>Master and Servant—Recovery of Wages.</p> <p>Judgment of the court below, in an action on an account for labor performed, is affirmed, without review in the opinion, of the several items.</p>

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

<p>Practice—Prosecution under Village Ordinance—Appeal from Justice.</p> <p>1. Although a motion appears in the record, yet where it bears no file mark and it does not appear that it was brought to the attention of the court below, no error can be held to have been committed regarding it.</p> <p>2. Where on trial in the County Court of an appeal from a justice, papers are missing which the transcript shows to have been issued by the justice, the proper practice is to issue a rule on the justice to send them up, or if they have been lost to require the plaintiffs to supply copies.</p> <p>3. An objection to the admission of evidence can not be urged here, the same not having been specifically called to the attention of the trial court.</p>

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

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

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

<p>Railroads—Injury to Stock—Evidence as to Experiments—Rebuttal— Discretion of Court—Instructions. „</p> <p>1. In an action against a railroad company for injury to stock on its track, where the main question was whether or not the engineer could, by the exercise of reasonable care, have seen the animals in time to avoid the accident, evidence of experiments made to determine the distance from the point of the accident at which the stock could have been seen by the engineer was admissible, although the conditions of the experiments were not precisely those existing at the time of the accident.</p> <p>2. The admission of such testimony in rebuttal was discretionary with the court below.</p> <p>3. In an instruction on the subject of the engineer’s duty to keep a lookout for obstructions upon the track, the phrase “ordinary care ” would be presumed to mean such care as the engineer could reasonably exercise in keeping a lookout, taking into consideration his other duties.</p>

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

George W. Herdman, Judge, presiding. This was an action brought by appellee, claiming as an indorsee upon a promissory note. The case was originally brought in a justice court, whence it was removed by appeal to the court below. Three trials were had before juries, each resulting in a verdict for the plaintiff. The two former verdicts were set aside by the court. On the last judgment was entered and this appeal taken by the defendant.

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

<p>Municipal Corporations—Hawkers and Peddlers—Agents and Canvassers—Licenses—Sec. 63, Chap. 24, R. S.—Practice—Finding by this Court.</p> <p>1. Canvassing or taking orders for books, pictures, etc., is not peddling or hawking within the meaning of the statute authorizing municipal corporations to license or prohibit the same.</p> <p>2. An ordinance providing that a person engaged in canvassing or taking orders shall be required to take out a peddler’s license, is void.</p>

<p>Railroads— Injury to Stock— Evidence — Opinion — Instructions —' Watchfulness—Duty of Trainmen—Damages.</p> <p>1. In an action against a railroad company to recover for injuries to stock struck by a train upon its track, the judgment of a witness, derived from an observation of the tracks, of the animals, and other indications, as to the place where they came thereon and as to their direction and speed, is admissible in evidence.</p> <p>2. Testimony as to experiments made by witnesses to determine whether stock could have been seen by the servants of a railroad company before coming upon its track, the character of the ground and obstructions to the view at the place in question being involved, is admissible.</p> <p>3. It is the duty of trainmen to use ordinary care in looking ahead, and in discovering whether or not any obstructions are on the track. It is not sufficient to use due care after animals are discovered, if, by the use thereof, they might have been seen in time to avoid an accident.</p>

<p>Administration—Properly in Several States—Administrators—Judgment against One of Several—Executor—Heir at Law—Evidence.</p> <p>A judgment against an administrator appointed in one State is not evidence of an indebtedness as against an administrator of the same estate appointed in another State, nor as against the executor or heir at law of the same decedent when sued in another State from that in which the judgment was rendered.</p>

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

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

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

<p>Schools—Mandamus—Demurrer—Text Books—Meetings—Regular or Special—Presumption—Notice.</p> <p>1. Upon a petition for mandamus to compel school directors to permit the use of a certain series of text books, alleged to have been adopted by the board at a meeting at which all were present, it will be presumed that the meeting was either a regular or special one, and a demurrer setting forth that it is not alleged that the action taken was at a regular meeting, as required by statute, will be overruled.</p> <p>2. Reasonable notice is necessary to require attendance of the directors at a special meeting of the board; but if all the members come together and by mutual agreement hold a meeting, any objection to the shortness, or absence, of notice is waived.</p>

<p>In error to the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.</p>

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

<p>Principal and Surety—Constables—Action on Bond—Illegal Acts of Principal—Liability of Surely.</p> <p>The sureties on the official bond of a constable are liable for illegal acts on his part while engaged in making an arrest.</p>

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

Owen T. Reeves, Judge, presiding. This was an action of assumpsit brought by appellee against appellant on a policy of insurance, issued by appellant on the dwelling house of appellee September 16, 1884, for $2,000, which, among other conditions, contained the following: “In case the assured fails to pay the premium note or order at the time specified, then this policy shall cease to be in force and remain null and void during the time said note or order remains unpaid after…

<p>Railroads—Freight—Delay in Transportation—-Limitations—Act of 1849, Secs. 11, 18—Shipping Receipts—Bills of Ladling—Former Adjudication—Evidence—Practice—Finding of Facts.</p> <p>1. To be a contract in writing a written instrument must set forth the undertakings of the parties to it so plainly as to require neither parol testimony nor the promises or duties which the law would imply from the facts stated, to ascertain the extent and force thereof.</p> <p>2. Where a shipping receipt upon which recovery is sought to be had does not contain any express agreement to forward certain goods to their destination, to ascertain the carrier’s undertaking with reference thereto, resort must be had to the duties imposed, and promises implied by law.</p> <p>8. A suit against a common carrier ma.y be maintained in the name of any person having either a general or special property in the goods involved, and an action properly brought by such person, will be a bar to any subsequent suit against the carrier by another party having either a general or special property in the same goods for the same damages.</p> <p>4. The presentation of shipping receipts, attached to which are drafts upon purchasers of grain, drawn by sellers thereof, shows that the property is in the hands of the carrier, and amounts to a delivery to the purchaser.</p> <p>5. In order that a former judgment shall amount to a bar to a subsequent suit, it is enough that the status of the action was such that the parties might have had their suit disposed of according to their respective rights, if they had presented all their evidence and the court had properly understood the facts and correctly applied the law. It either failed to present all bis proofs, or improperly managed bis case, or subsequently discovers additional evidence in his behalf, or if the court finds contrary to the evidence or misapplies the law, the judgment, until corrected or properly vacated, is as conclusive upon the parties as though it had settled their controversy in accordance with the principles of abstract justice.</p> <p>6. Reasonable time, within the meaning of a contract of affreightment, must be determined by the circumstances attending and surrounding a given transaction.</p> <p>7. It seems, that if a shipper promises the carrier to do something which will enable the latter to make the time of transportation shorter than it otherwise would be, and fails to perform it, such fact can be shown by the latter in excuse for the delay, and without changing or modifying the contract of affreightment.</p> <p>8. In the case presented, this court holds that there was no such delay in the transportation of the grain involved, as would render defendant liable in damages herein; that in a former action defendant was charged with the same negligence with reference to the same merchandise as is here set up, and that the same is a bar to the present suit.</p>

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

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

<p>Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.</p>

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

<p>Railroads—Injury to Private Property through the Construction of— Damages.</p> <p>1. An owner of real estate located upon a highway, is entitled to damages when the same is rendered less safe with reference to communication with his property, through the building and operation of a railroad contiguous thereto.</p> <p>2. There is no legal distinction between damages suffered in such manner and where the injury arises from the obstruction of the road itself.</p> <p>8. In such cases certain elements of damage arise, so far as such property owner is concerned, which are not fully shared by the general public.</p>

<p>Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.</p>

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

<p>Practice—Appeals from County Court.</p> <p>An appeal to the Circuit Court from' an order entered by the County Court, on petition of an administratrix to sell real estate, may be granted at any time during the term. The time for appeal is not limited to twenty days. .</p>

<p>In error to the Circuit Court of Calhoun County; the Hon. G. W. Herdman, Judge, presiding.</p>

<p>Taxation—Statutes—General and Special—Construction of—Repeal by Implication.</p> <p>1. A statute will never he held to be repealed by implication if such presumption can be avoided on any reasonable hypothesis.</p> <p>2. In the case presented, it is held that Sec. 4, Art. 7, of the charter of the town in question, in regard to the disposition of road and bridge taxes, was not repealed by the subsequent general law of 1883.</p>

<p>Negotiable Instrument—Note—Neal Property—Contract of Sale— Assignment of—Failure of Title—Instructions.</p> <p>Upon an assignment of a contract for the purchase of real estate, executed by the vendee, which provided that the agreement was thereby sold by the plaintiff to the defendant, the latter to assume all the conditions contained in the original contract, the assignment also containing the terms of payment by the assignee to the assignor, this court holds that the assignor did not thereby guarantee that the vendor in the original contract would faithfully perform.</p>

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

<p>Judgments•— Reversal—Nominal Damages— Written Contract — Construction of—Instructions.</p> <p>This court will not reverse a judgment merely for the purpose of permitting the recovery of nominal damages.</p>

<p>Sales—Engine—Contract for Shipment and Delivery of—Refusal to Accept—Omission of Condition—Fraud—Practice Act, Sec. 34—Warranty —Breach—Evidence—Damages.</p> <p>1. An order calling for the shipment of an engine is complied with by an offer to deliver one in the town where the same was written.</p> <p>2. Evidence can not be admitted to prove that a provision was fraudulently omitted from an order, in the absence of verification by affidavit in conformity with Sec. 84 of the Practice Act.</p> <p>8. Where a contract of sale contains provisions fixing the rights of the parties thereto, in case, after trial, the machine in question fails to comply with the warranty contained therein, the purchaser can not decline to receive the same upon the ground that the year before, in other hands, it failed to work properly.</p> <p>4. A machine that has been repaired will be presumed to be in working order and it is the duty of a person ordering such a machine to give it a fair trial.</p>

<p>Master and Servant—Labor and Material—Recovery for—School Directors—Liability as Individuals.</p> <p>In an action upon a contract containing the names of certain individuals, the language thereof indicating that they were at the time of its execution school directors of the district in question, but not that they were acting in such capacity, this court holds that they were individually liable thereon, and declines to interfere with the verdict for the plaintiffs.</p>

<p>Railroads—Statutory Signals—Crossings—Personal Injuries—Adjacent Field.</p> <p>The plain object of the statute requiring railroad companies to give signals at highway crossings is to protect persons who may be about to cross the track and to obviate danger of collisions. Failure to comply with the statute does not render a company liable to a person injured in an adjacent field by reason thereof.</p>

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

<p>Mechanic’s Lien—Petition to Enforce—Implied Contract—Materia Is Pot Furnished within One Year—Judgment Creditors—Landlord—Priority of Liens—Sec. 3, Chap. 82, R. S.</p> <p>Upon a petition to enforce a mechanic’s lien, it being stipulated that no liens that any of the parties holding claims against the common debtor might have, should be lost or postponed by reason of delay during the pend-ency of the suit, and that the rights of the respective parties should be determined in the cause, this court holds that the stipulation was a sufficient basis on which to afford relief, and found a decree determining and enforcing the rights of the parties without the necessity of cross-bills, and that the decree of the court below denying the petition, was supported by the evidence, the materials in question not having been furnished within, one year, as required by Sec. 3, Chap. 82, R. S.</p>

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

<p>Appeal from the Circuit Court of Moultrie County; the Hon. E. P. Vail, Judge, presiding.</p>

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

<p>Railroads—Injury to Team—Crossings—Hate of Speed of Train in Absence of Regulation by Ordinance—Contributory Negligence—Failure to Look and Listen.</p> <p>1. In the absence of legislation or municipal regulation a railroad may adopt such rate of speed for its trains as it deems advisable, providing it is reasonably safe to passengers being transported.</p> <p>2. It is not the duty of an engine-driver, on nearing a crossing, to stop his train for the purpose of avoiding a collision with a team he may see approaching.</p> <p>3. In an action to recover from a railroad company for injuries inflicted upon a team at a highway crossing, this court holds that the defendant was not guilty of negligence in the premises, but that the plaintiff was negligent in failing to look for trains before driving upon the track.</p>

C. B. Smith, Judge, presiding. This was a suit commenced by appellants before George M. Jeter, a justice of the peace of Edgar county, on January 7, 1889, to recover a judgment upon a former judgment rendered January 22, 1879, by M. H. Ewers, a former justice of the peace of Edgar county, against Samuel Arbuckle and in favor of the American Insurance Company.

<p>Garnishment—Statutes—Construction of—Choses in Action.</p> <p>The expression, ‘ ‘ choses in action” in the provisions of the statute in regard to garnishment, refers only to those in the custody, charge or possession of the garnishee belonging to the defendant, and held against third parties.</p>

<p>Railroads—Injunctions—Streets—Obstructions in—Deed—Decree—Evidence—Sufficiency of—Rights of Public.</p> <p>1. A city is powerless to confer a right so to use its streets as to hinder or obstruct the concurrent use by the public thereof.</p> <p>2. While statutes of limitation do not run against municipal corporations as to public rights, the principle of estoppel in pais may be so applied.</p> <p>3. In an action brought to enjoin a railroad company from placing obstructions in certain portions of city streets, the deed under which the company claimed the right to act in the premises containing a provision that they, or portions thereof in which any right and privileges were granted to the company, should be by them so graded and their tracks so laid that carriages, wagons, drays and vehicles of all kinds might conveniently cross the same, it is held: That the decree in behalf of the plaintiff was within the provisions of the deed, and that the same was supported by the evidence.</p>

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

<p>Attachment—Bond—Action on by Assignee of Firm of Attachment Debtor —Set-off of Judgment Obtained in the Attachment Suit.</p> <p>1. Expenses incurred by the assignee of a co-partnership, of which a defendant in attachment was a m nnber, in defending an attachment, can not be recovered, the same having been defeated in an action by such assignee upon the bond given by the attaching creditors in the attachment proceeding.</p> <p>2. Were this otherwise, a personal judgment against the debtor, obtained in the attachment proceeding, could be set off in such an action by the assignee.</p>

<p>Master and Servant—Minor—Municipal Corporations—Contract of Service—Recovery of Wages—Extra Help—Contradictory Instructions.</p> <p>1. Although the principles announced in certain instructions are correct, as applied to a proper case, yet where they are not applicable to the case at bar, and are contradictory to other instructions given, and tend to confuse and mislead the jury, the giving of them constitutes reversible error.</p> <p>2. In an action by a city employe to recover from the municipality compensation for assistance rendered him by his minor son, this court holds that the right of recovery depends upon the amount of steam power furnished a company named, in accordance with a resolution passed by the city council.</p>

<p>Practice—Bill of Exceptions.</p> <p>This court will not interfere with the judgment of the trial court where the bill of exceptions fails to show a motion for a new trial made, or exception to the judgment entered.</p>

A. Sample, Judge, presiding. This was an action brought by appellant against appellee to recover a reward of $100 each, for the capture of three horse thieves. A jury was waived and the case tried by the court.

<p>Real Property—Forcible Retainer—Title—Evidence—Entry by Owner— Possession by Another.</p> <p>1. In a suit of forcible detainer, evidence as to title, introduced merely for the purpose of showing the character or extent of a possession, may properly be considered.</p> <p>2. The owner of land, having a present right of immediate possession, may enter the same in a peaceable manner, though occupied by another, without becoming by reason of such entry a trespasser.</p>

<p>Sales—Hogs—Disease—Express Warranty—Breach—Instructions— Damages—-Barden of Proof.</p> <p>1. From the evidence adduced, this court holds that defendant gave a warranty to plaintiff at the time of the sale in question.</p> <p>2. In the case presented this court holds that although an instruction given for thé plaintiff was defective, in that it left it to be inferred that a mere statement by the defendant that certain hogs were sound, regardless of the time at which it was made, or its object, would, if relied upon by the plaintiff, constitute a warranty, yet, as the evidence disclosed no such declarations except at the time of the sale, and other instructions were clear and positive to the effect that the statements should have been made for the purpose of assuring the buyer of the truth of the facts affirmed and thereby inducing a sale, such errors did no harm.</p>

<p>Ferries—Regulation of Rates—Reservation to City—Exercise of Right Must be Reasonable.</p> <p>1. A private statute granting a ferry privilege, and containing the provision that a certain city shall have the right to regulate and control the rates of toll, implies that such regulation shall be reasonable.</p> <p>2. In the case presented this court holds that, in view of the evidence, the judgment of the court below, upholding as reasonable the rates established by the city, which are herein complained of, should not be disturbed.</p>

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

<p>Highways—Order of Board Establishing—County Not under Township Organization Laiv—Appeal—Entry of Order Nunc pro Tunc.</p> <p>1. There is no provision authorizing an appeal from an order establishing a public road (not a cartway) in the present road law relating to counties not under the township organization law, and the only appeal that is provided for in such cases is from the assessment of damages and the judgment thereon.</p> <p>2. Appeals depend wholly upon the statute and can be taken only where it provides for them.</p>

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

<p>Replevin—Corn in Shook—Ejectment—Judgment for Plaintiff in— Lease during Pendency of Suit—Crops.</p> <p>A lessee of farm lands, the relation being entered into pending an appeal by his lessor from an adverse decision in an action of ejectment involving the land in question, can not hold the crops raised thereon, though severed from the soil, where the judgment in behalf of the plaintiff in such suit is affirmed in the higher court.</p>

<p>Life Insurance—Action on Policy—Premium—Non-payment of—Forfeiture— Waiver—Course of Dealing—Parties—Special Interrogatories.</p> <p>1. When the practice of an insurance company and its course of dealing have been such as to induce the belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief.</p> <p>2. An insurance company may permit its agent to waive a forfeiture notwithstanding provisions in its policies that agents shall have no such authority.</p> <p>3. In the case presented, this court holds that the evidence warranted the jury in the conclusion that the insured and the agent had an understanding binding upon both, in regard to a certain premium; that payment thereof was waived and postponed until a date which was later than the death of the assured, and that the acts of the agent were binding upon his company.</p>

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

<p>Judgments—Unauthorized Satisfaction of—Power to Correct Entry— Jurisdiction.</p> <p>The Circuit Court o£ one county has no power, upon a bill filed for that purpose, to cancel or annul an unauthorized satisfaction of a judgment entered in the judgment and execution docket kept by the clerk of the Circuit Court of another county.</p>

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

<p>Administration—Claim—Equitable Jurisdiction—Dower—Failure to Demand—Support of Minors by Father—Contribution from Children’s Estate—Propositions of Law—Unreasonable Number of.</p> <p>1. A surviving husband, when dower has not been demanded by him, nor set off to him, can not hold one-third of the rents and profits of his deceased wife’s lands as against the minor heirs.</p> <p>2. It is the duty of a father, if his means are sufficient, to maintain and educate his children during their minority according to their station, even though the children have separate estates; and the burden is on him to show the necessity of contribution from the children’s estates. The circumstances of father and children are to be considered in deciding what, if any, contributions should be made.</p> <p>3. In the case presented, this court holds that the County Court, in allowing a claim against the estate of claimants’ father for the use by him of land left by the deceased mother, and in passing upon counter-claims thereto, had equitable jurisdiction.</p>

<p>In error to the Circuit Court of Piatt County; the Hon. C. B. Smith, Judge, presiding.</p>

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

<p>Agency—Authority—Scope of—Forgery—Presumption of Innocence— Receipt—Effect of, as Evidence—Requests to Ft-A—Questions of Law and Fact—Weight of Evidence—Limitations—Fraudulent Concealment.</p> <p>1. Where an agent’s authority is limited to the settlement and collection of a claim, and he has reported to, and fully settled with bis principal in the matter of the agency, the subsequent indorsement by the former agent of a check, in the principal’s name, though the same was given as an installment on such claim, is not only unauthorized, but, unless done with the intent of at once taking the proceeds of the check to the principal, criminal.</p> <p>2. The fact of such criminal act, near the close of a long life of apparent integrity, under no special pressure of need or greed, and in the face of great risk, is to be judicially found onhr upon clear and satisfactory proof. Something more than a bare preponderance of evidence, leaving grave doubt, is required.</p> <p>3. Receipts in writing, while evidence against the signer of high character, are not conclusive, but are subject to explanation, correction or contradiction.</p> <p>4. The weight to be given to such a receipt or admission, and the question whether it has been satisfactorily explained, is for the trial court to decide.</p> <p>5. A request to find, in trial without a jury, that certain facts, if found to exist, would constitute such a fraudulent concealment as would prevent the statute of limitations commencing to run, should be refused, it being a question of fact, not of law.</p> <p>6. Requests to find, should present propositions of law only, and in no case assume the existence of any fact in dispute. Such propositions should deal with the facts claimed only as hypothetical, and should state no fact even hypothetically, unless there is evidence tending to prove it.</p> <p>7. When the court is asked to hold a proposition of law, based upon a hypothetical case, it should be correctly and completely stated.</p> <p>8. It is not error to refuse a proposition of law already embodied in another holding.</p> <p>9. It is not error to refuse a proposition of law when there is nothing in the case calling for its application.</p>

<p>Municipal Corporations—Ordinance— Violation—Penalty—Recovery of —Intoxicating Liquors—Service—Default—Motion to set Aside—Sec. 5, Practice Act—Pleading.</p> <p>1. In an action of debt for the recovery of penalties for divers violations of an ordinance touching the sale of intoxicating liquors, this court holds as erroneous the assessment of attorney’s fees in a certain sum upon each conviction, as costs.</p> <p>2. A failure to allege in the declaration the existence of a provision warranting such assessment in an ordinance, will prevent the recovery thereof.</p>

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

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

T. W. Shaw, Judge, presiding. The appellant, who was complainant in the court below, filed his bill in the Circuit Court April 21,1886, against appellees, Patrick Harmon, guardian of William and Mary Boylon, minor heirs of William Boylon, deceased, and also against the said minors in person, and against Maria Boylon (formerly Webster), the widow of William Boylon, deceased, and Josiah Cratty, to foreclose two certain mortgages given by said Harmon, as guardian of said…

John J. Glenn, Judge, presiding. What we presume may be regarded as the material allegations of the bill in this case are, that on the 9th day of April, 1884, B. T. O. Hubbard was the owner and in the possession of five several policies of insurance: three in a New England company, numbered 62,034, 65,584, 66,426, and dated respectively, July 21, 1879, July 30, 1881, and December 31, 1881; one in a New York and one in a New Jersey company.

<p>Replevin—Exemptions—Demand—Notice—Schedule—Failure to File— Former Adjudication— Consolidation of Causes—Appraisal.</p> <p>1. Property in the lawful possession of another under a distress warrant should not be replevied without previous demand.</p> <p>2. The owner can not, under the statute concerning exemptions, become entitled to the possession of property held under a distress warrant, without first making out and delivering the required schedule.</p> <p>3. It is proper in an action of replevin brought to recover property dis-trained, to submit to the jury, upon the request of the plaintiff, the question whether a reasonable time was given for the appointment of appraisers to value the same, after delivery of the schedule and before the institution of the suit.</p> <p>4. An appraisal in an action of this character must show that the persons making the same were legally appointed.</p> <p>5. It seems that the present suit is not barred by the former one, and that the statute in regard to consolidation of causes of action has no application.</p>

<p>Appeal from the Circuit Court of Iroquois County; the Hon. C. F. Reeves, Judge, presiding.</p>

F. M. Shaw, Judge, presiding. This suit was brought by the appellant before a justice of the peace to recover possession of a hundred and sixty acres of coal land leased to appellees by appellant November 11, 1887. The Edwards Coal Co. became the assignee of the lease and is party defendant in the suit. After trial before the justice the suit was appealed to the Circuit Court.

<p>Partnership—Members—Individual Debts of—Payment—Firm Funds —Set-off.</p> <p>Upon a bill filed by a member of a firm calling, among other things, for an itemized statement of payments made with partnership funds, by a defaulting co-partner, to liquidate private debts due manufacturers with whom such firm habitually dealt, suit having been brought by them against the firm to recover a balance due and unpaid, and that such payments be applied in satisfaction of the firm indebtedness, this court holds, that the promise of complainant to assume such payments was conditional, not absolute, and declines to interfere with the decree in his behalf.</p>

<p>In error to the Circuit Court of Kankakee County; the Hon. H. J. Pillsbury, Judge, presiding.</p>

<p>In error to the Circuit Court of Bureau County; the Hon. Francis Goodspeed, Judge, presiding.</p>

John D. Crabtree, Judge, presiding. This was a bill in chancery, filed in the Circuit Court of Carroll County, to the March term thereof, A. D. 1886, by Nelson Fletcher, as conservator of one Robert Groom, against James H. Johnston, plaintiff in error.

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

<p>■ Master and Servant—Personal Injuries—Steel Works—Track Repairer "—Regligence of Servants—Fellow Servant—Special Findings—Pleading —Evidence—Instructions.</p> <p>1. The question whether one servant was the fellow servant of others in the employ of the same master, is for the jury.</p> <p>2. In an action brought by a servant to recover from his employer for the loss of a leg through the alleged negligence of other servants of his said employer, this court holds, that the declaration after issue joined sufficiently disclosed a cause of action; that plaintiff was not a fellow servant of those through whose negligence the accident occurred; that when injured he was in the exercise of ordinary care; that the instructions given for him were not seriously defective, and declines to interfere with the verdict in his behalf.</p>

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

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

<p>Practice—Waiver of Opening Argument—Instructions:</p> <p>1. Where plaintiff’s counsel waives the opening argument and the defendant’s counsel thereupon waives argument, it is proper for the court to refuse plaintiff’s counsel the right to address the jury.</p> <p>2. Where one question in issue was as-to the terms of a contract of sale of tread power and stave cutter, the court, upon the case as presented, properly refused to instruct the jury that any statement made by one of the contracting parties after the sale, would not bind him nor affect the validity of the original contract.</p>

<p>Corporations—Attempted Release by Directors of Stock Subscription— Ultra Vires—Other Subscriptions—Delay—Estoppel—Interest—Directors Not Necessarily Stockholders—Subscription Paper Not Necessary to Show Organization—Calls.</p> <p>1. The attempted release by the directors of a corporation, o£ one subscriber to the capital stock from the payment of his subscription, does not release another subscriber, not agreeing to such attempted release, from such payment.</p> <p>2. A subscriber to the capital stock of a corporation who claims to be released from his subscription by reason of fraudulent inducement used in securing the same, must claim his release at the earliest possible moment.</p> <p>3. The installments of a subscription to the capital stock of a corporation draw interest from the date when they bicorne due.</p> <p>4. In the absence of statutory requirement to the contrary a director of a corporation need not necessarily be a stockholder.</p> <p>5. In the case presented, this court holds that the corporation plaintiff having been organized and having received its charter, the introduction of the subscription paper was unnecessary to show organization.</p>

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

<p>Partnership—Retirement of Partner—New Partnership—Assumption of Liabilities by New Firm—Payments by Retiring Partner—Release by Him of New Firm.</p> <p>Upon suit brought by a former member of a defunct copartnership against a firm succeeding it in business and assuming its liabilities, to recover for payments made by him of certain liabilities of the old firm after the formation of the new one, this court holds that by a writing executed subsequently to the payments in question, plaintiff released the defendants from liability upon certain items named, and that no recovery can be had therefor.</p>

<p>Appeal from the Circuit Court of Warren County; the Hon. P. H. Sanford, Judge, presiding.</p>

Dorance Dibell, Judge, presiding. This was a bill for an injunction filed in the Circuit Court by appellee against appellants seeking to restrain them from in any manner interfering or hindering the operations of appellee, or any of his employes, in excavating and removing sand and loam from the farm of the appellants in the town of New Lenox and from bringing suits against appellee or any of his employes, civil or criminal, on account of any supposed violation of the law in…

<p>Practice—Stipulation to Submit Cause to Particular Judge—Right of Appeal—Finding of Court—Weight of—Practice—Admission of Evidence.</p> <p>1. An appeal will lie to this court from a judgment entered in an action of case for alleged negligence, where it is stipulated that a jury be waived, that proof of negligence be waived, that the case be submitted to a particular judge, and that when he shall have determined the compensatory damages, judgment shall be entered for one-half the amount so found.</p> <p>2. The same consideration is due to the finding of the court, in a trial without a jury, upon a question of fact, as to the verdict of a jury, and that finding will not be set aside unless manifestly against the weight of the evidence.</p> <p>3. This court, on appeal from a judgment entered on trial by the court, will not consider the question of the admission of improper evidence, but no propositions of law having been submitted to the court, will presume that the court below determined the issues upon competent evidence.</p>

<p>Banks—Fraudulent Acts of Cashier of National Bank—Acts Ultra Vires—Acceptance by Bank of Benefits—Can Not Escape Liabilities— Interest on Overdrafts.</p> <p>1. A bank should not be allowed interest on overdrafts of a depositor.</p> <p>2. The evidence in the case at bar shows that the acts of the cashier were intended by the parties to be in his official and not in his individual capacity.</p> <p>3. Acts of a cashier of a bank, in behalf of the bink, not criminal nd contrary to public policy, though not strictly within the powers of the bank, done in the course of a transaction which has been executed in whole or ir part, can not be so repudiated by the bank that it should enjoy the benefits and escape the liabilities of the transaction.</p>