Volume 34 — Illinois Appellate Court Reports

<p>Agency—Sale of Real Estate—When Entitled to Commission—Notice.</p> <p>1. When an agent is employed to sell land and finds a purchaser whom the owner accepts and to whom he sells, the agent is entitled to commissions although the seller may not secure the same terms of sale which he had proposed through the agent.</p> <p>2. The fact that the owner is not notified that the purchaser has been sent to him by the agent is immaterial.</p>

<p>Bastardy—Intercourse— Time of.</p> <p>In a bastardy proceeding the precise time of the alleged act of coi'.on, if it be within the proper period of gestation, is immaterial, even though the complaining witness may have fixed the time definitely, except as affecting the credibility of the witness.</p>

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

<p>Appeal from the County Court of Mercer County; the Hon. J. H. Connell, Judge, presiding.</p>

William Brown, Judge, presiding. This was a bill in equity seeking to enjoin the opening of a highway which had been surveyed and laid out by the appellant for public and private use, between the dwelling house of one Cornelius Vroom and a public highway in said county of Lee, crossing the track and one hundred feet right of way of the appellee, which crossing had been attempted to be condemned by the commissioners of highways.

<p>Master and Servant—Services Rendered—Recovery for—Partnership —Evidence.</p> <p>In an action for the recovery of compensation for the services of the plaintiS and his minor son, rendered in connection with the purchase and shipment of stock, this court declines, in view of the evidence, which is sharply conflicting, to interfere with the verdict in his behalf.</p>

<p>Municipal Corporations—Negligence of—Personal Injuries—Defectioe Sidewalk—Variance—Practice—Abstracting of Pleadings.</p> <p>1. In an action against a municipality for the recovery of damages for injuries suffered through a defective sidewalk, this court holds that the evidence was amply sufficient to warrant the jury in finding the defendant guilty of negligence in failing to keep the same in repair.</p> <p>2. While it is true that cities are hot required to use the same degree of care in keeping in repair walks remote from the center of the city and little used as they are required to exercise in regard to walks in the heart of the city, yet if there is sufficient travel to justify the building of a walk at all, the city can not be allowed to let it go into decay or become a trap.</p> <p>3. Where parties desire to raise questions upon the pleadings, they must be abstracted.</p> <p>4. The fact that the declaration alleged that the injury complained of was suffered by plaintiff just as she was about to step upon the sidewalk, while the proof showed that it was suffered after she was on the sidewalk, is not a variance of sufficient importance to affect the verdict.</p> <p>5. Where counsel for defendant, in making a motion at close of plaintiff’s evidence to exclude such evidence, and direct the jury to find a verdict for the defendant, failed to point out the grounds of the motion, he must, he considered to have waived them, and can not urge such grounds on motion for new trial, or here for the first time.</p> <p>6. There is no evidence in the case tending to show contributory negligence on the part of the plaintiff.</p>

<p>Appeal from the Circuit Court of McHenry County; the Hon. Charles Kellum, Judge, presiding.</p>

<p>Fire Insurance—Action on Policy—Conditions—Representations of Assured as to Title—Acts of Agent—Title log Possession—Payment of Taxes.</p> <p>1. It is not necessary that a title in fee simple should always be shown or deducible by record. Such title may result from sufficient length of possession to bar an action, or from possession and the payment of taxes under color of title for the time required by law.</p> <p>2. Where all the facts which concern and relate to the title of the property to be insured, and the nature and character of the risk, are fully and fairly detailed to an insurance agent, and the agent, with such knowledge, writes statements in the application or in the policy inconsistent with such information and which are not in fact true, the company will not afterward be allowed to defeat a recovery on the policy on the ground that such statements are not true, and this notwithstanding the policy may declare the agent to be the agent of the assured.</p>

<p>Injunctions—Dissolution in Part—Not Breach of Bond.</p> <p>This court holds, where a temporary injunction was issued restraining an administrator from the collection of certain notes against the complainants, and the injunction was finally made perpetual as to most of the notes but dissolved as to part, that the dissolution of the injunction as to this part did not constitute a breach of the injunction bond.</p>

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

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

<p>In error to the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Real Property—Conveyance—Mortgage—Consideration—Agreement to Support—Evidence.</p> <p>In a controversy turning upon the meaning of a transaction involving the giving of deeds and the execution of notes and mortgage, the saín; growing out of an arrangement entered into for the support of a third person, this court holds that the trial court erred in excluding evidence going to show the value of the property in question.</p>

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

<p>In error to the County Court of La Salle County; the Hon. Frank P. Snyder, Judge, presiding.</p>

<p>Appeal from the Circuit Court of De Kalb County; the Hon. Charles Kellum, Judge, presiding.</p>

<p>Municipal Corporations—Streets and Alleys—Title to—Right to sell Underlying Coal.</p> <p>A city has the right, as incident to its title in fee simple in its streets and alleys, to make any appropriate and lawful contracts for mining and taking coal from under its streets, provided always that all such contracts must be subject to the free and unobstructed use of the streets and alleys, so as in nowise to impair their usefulness, nor render them in any manner dangerous, and they must also be so made as not, in point of time, to exceed the legal existence of such corporation, nor the legal existence of any street or alley in such city.</p>

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

<p>Appeal from the County Court of Ogle County; the Hon. George P. Jacobs, Judge, presiding.</p>

<p>Administration—Claim for Services Rendered Deceased—Evidence— Power of Wife to Contract and to Sue—Acquiescence of Husband.</p> <p>1. Where it appeared that, in pursuance of a verbal contract made between claimant and deceased in his lifetime, deceased lived with claimant for a time and was cared for by her, statements made by him, after ha was taken from claimant’s care, to the effect that he was not well treated, while in her care, were properly excluded.</p> <p>2. Neither is it proper in such case to show declarations of deceased while living with claimant, not made in her presence or hearing, as to moneys paid by or to deceased, or how the same were used.</p> <p>3. Self-serving statements of deceased, made in his lifetime in the absence of claimant, which did not accompany an act of deceased competent to be shown in evidence, were no part of the res gestee and not admissible.</p> <p>4. Offers of deceased’s children, while he was living with claimant, tc furnish him a home, were immaterial, and evidence to show them was inadmissible.</p> <p>5. The contract of claimant to care for deceased having been a continuing one, the objection that the claim is stale can not be made.</p> <p>6. Although the contract was for the care of deceased up to the time of his death, and claimant did not care for him up to his death, this fact does not defeat her right of recovery, the evidence showing that her failure to care for him was not by reason of her default.</p> <p>7. The evidence in the case presented is sufficient to show that the contract was made with the claimant and not with her and her husband, and no one but the hnsband can raise objection to a contract of this character being made and enforced by a married woman.</p>

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

<p>Trespass—Action of—Distress Warrant—Unlawful Levy of—Eviction— Evidence—Distractions.</p> <p>1. If a distraint of goods for rent be legal in its inception, the failure of the landlord to begin legal proceedings under the statute, and the return of the goods to the tenant, who accepts the same, do not render the distraint unlawful ab initio.</p> <p>2. In the case presented, this court holds that an instruction leaving for the determination of the Jury a question which was settled by written leases introduced in evidence was erroneous, the natural effect thereof being to mislead the jury as to the measure of damages.</p> <p>8. This court also holds that evidence as to damages remotely caused by the distress proceeding, but for which there was another proximate cause, was improperly admitted in the case at bar.</p>

<p>Landlord and Tenant—Distress Warrants—Judgment for Bent—Buie on Landlord to Account—Agreement of Parties—Hearing by Court—Juris diction—Practice—Exceptions.</p> <p>1. A trial on distress warrants having resulted in a judgment for rent, the tenant subsequently securing a rule on the landlord to show what had been done with the property distrained, service of which was waived and answer made, it appearing from the record, that by agreement made in open court, the case was heard by the court on evidence taken in part for another purpose, this court holds that the court had jurisdiction of the case, and that the question of jurisdiction had been waived by the plaintiff.</p> <p>2. Where the bill of exceptions shows no exception taken to the action of the court below, this court has no power to review the action thereof.</p> <p>3. Exceptions can only become matters of record when certified to by the presiding judge.</p>

<p>Real Property—Covenant—Action of—Finding of Fact by Court—Liability of Grantor in Warranty Deed—Ejectment—Costs and Attorney's Fees.</p> <p>1. The same rule is applicable to the finding o£ facts upon trial by the court, as to verdict of a jury; and if, upon a conflict of the testimony, the finding in either case is not manifestly against the weight of the evidence, the judgment will not be disturbed on that ground.</p> <p>2. The records of a judgment in a court of competent jurisdiction, in a case where the grantee in a warranty deed was a party to a suit in ejectment, and his grantor was notified to prosecute the suit, are conclusive evidence against that grantor in a suit against him by the grantee upon the covenants of the deed, upon a point directly decided in the former suit.</p> <p>3. Where the grantee holds a covenant from his grantor that he will warrant and defend the title, the covenantee may defend for him, and when he has in good faith done so, the taxable costs and attorney’s fees necessarily paid in such defense may be recovered from the grantor.</p> <p>4. The same principle applies when the covenantee, after notice to his covenantor, seeks to obtain possession of that for which' he has paid his money, relying upon his covenants, upon refusal or neglect of his grantor to put him in possession, and institutes proceedings to obtain such possession, and is cast in his suit for want of title in his grantor.</p>

<p>Bailroads—Negligence of—Defective Fence—Injury to Stock—Gate— Evidence—P leadin g—Practice—In str action s.</p> <p>1. Under the circumstances of the case at bar a gate is to be considered a part of a fence.</p> <p>2. Where the condition of a certain gate was one of the issues involved, testimony that “ anything that would touch it would throw it down ” and that “ most any animal would throw it down ” was not objectionable because it was an opinion, or as invading bhe province of the jury.</p> <p>3. A formal objection to a question put to a witness must be specifically stated when made, and can not afterward be raised under a general objection to the witness testifying at all in the case.</p> <p>4. A question calling for the general opinion of a witness as to whether a fence was “ sufficient to bold stock ’’ is improper.</p> <p>5. Evidence that the foreman of the section hands of the section within which a given gate was situated, was a competent and careful man for the work in which he was engaged, is inadmissible.</p> <p>6. It is proper for courts to refuse to repeat instructions.</p> <p>7. An ad damnum placed at $500 is sufficient to sustain a verdict, for "$275, although in the body of the declaration the damages are put, under a videlicet, at $200.</p>

Doearoe Dibbll, Judge, presiding. This is a suit in chancery brought in the Circuit Court of Will County by one of the appellees, Robert Pilcher, against the First Rational Bank of Joliet, appellant, and.E. C. Hager, F. H. Riebling and Elizabeth, his wife, and Maria E. Dill-man, George W. Hyde, Lorenz Ritz, William Adam and J. and J. G. Whittier, as defendants, for the purpose of foreclosing two deeds of trust, executed by Riebling and wife to E. C. Hager, as trustee, dated…

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

<p>Appeal from the Circuit Cpurt of La Salle County; the lion. Dobance Dibell, Judge, presiding.</p>

A. A. Smith, Judge, presiding. This is a bill for injunction by the appellee as the owner of the north 440 acres of section 23 in Maquon township, to restrain the appellants, as commissioners of highways, from completing a ditch in the south side of the highway, adjoining th.e land of appellee, extending west from the east draw to the west draw on Bobert Harper’s land, a distance of about forty-five rods.

<p>Municipal Corporations—Charter—Power of City Attorney to Take Appeals—Ordinance—Repeal of—Burden of Proof .</p> <p>1. Under Sec. 9 of the organic act of the city of Kankakee, which provides that “ it shall be the duty of the city attorney to conduct all the law business of the corporation and of the departments thereof,” such officer is authorized, without order of the council, to take an appeal from a judgment in favor of the defendant in a prosecution of a person for peddling without a license.</p> <p>2. Where the defendant objected to the introduction of an ordinance of the city on the ground that all the ordinances of the city were revised in 1888,. and that all ordinances not included in the revision were repealed, which fact was established, the burden was also on him to show that the ordinance objected to was not in the revised list.</p> <p>3. The filing of the transcript from the justice with the clerk of the Circuit Court of the proper county, within twenty days from the rendition of the judgment of the justice, was a sufficient compliance with the statute as to a prayer for an appeal in this case.</p>

<p>Appeal from the Circuit Court of Jo Daviess County; the Hon. John D. Crabtree, Judge, presiding.</p>

<p>Municipal Corporations—Defective Sidewalk—Personal Injury—Knowledge of Condition—Care Required—Right to Use Sidewalk—Injury Not at First Apparent—Care in Securing Surgical Treatment—Instructions,</p> <p>1. A person has the legal right to use a sidewalk, open to the public, in a city or village, although he knows, or might know, that it is in a defective condition, and is not compelled to take some other route to reach his destination.</p> <p>2. The degree of care required of a person so using a defective sidewalk is ordinary care under all of the circumstances of the case, and such knowledge of the defective condition of the walk is one of the circumstances to be considered by the jury in determining the question of what is ordinary care.</p> <p>3. In the case at bar the question of negligence was one of fact for the jury under all the circumstances in evidence, and the jury having been carefully and correctly instructed, the verdict will not be set aside. Slight negligence on the part of plaintiff was not sufficient to bar a recovery.</p> <p>4. A person injured through the negligence of another is only bound to use ordinary care in the endeavor to effect a cure, or even in the determination of what the injury is, and if mistakes occur, the injured party having used ordinary care in securing surgical attendance, the injury resulting from such mistakes is in law regarded as one of the direct results of the injury.</p>

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

<p>Appeal from the Circuit Court of Kankakee County; the Hon. H. J. Pillsbury, Judge, presiding.</p>

<p>Municipal Corporations—Personal Injuries—Pall upon Sidewalk— Pes2>onsibility of Town for Walk at Point Where Building is Being Erected—Contributory Negligence—Evidence—Instructions.</p> <p>1. Every one is bound to take notice of the fact that the street and sidewalk in front of buildings in process of erection, are more or less obstructed by building material and grading and excavating. These obstructions being unavoidable, the public must submit to some inconvenience and use a higher degree of care in using streets and walks so torn up or obstructed.</p> <p>2. Where the evidence shows that the walk in question was four or five feet wide and smooth and level, evidence that the injury resulted from plaintiff's falling over a random brickbat or stone, which might have been thrown or dropped upon the walk at any time without the agency of the city, is insufficient to render it liable.</p> <p>3. A city is not bound to keep its whole street fit and safe for foot passengers. When it has provided a reasonably safe sidewalk for persons to walk upon, wide enough for that purpose, it has discharged its whole duty in that regard.</p> <p>4. The action of the court below, as to instructing the jury, having been inconsistent with the above principles, was erroneous, and in view of the evidence this court holds that the judgment in behalf of the plaintiff can not stand.</p>

<p>Appeals—Dismissal—Order Vacating Judgment by Confession on Power of Attorney—General Appearance.</p> <p>1. A party who appears and enters upon the trial of material facts requiring affidavits and witnesses for their proof can not be allowed to limit his appearance to a special purpose.</p> <p>2. An order setting aside a judgment by confession, held, not to have been final, and the appeal dismissed.</p>

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

<p>Landlord and, Tenant—Written Lease for Term of Years—Verbal Contract for Improvement of Premises and Payment of Increased Rent— Attempt of Tenant to Surrender Room Added to Original Space—Statute of Frauds.</p> <p>Where there was a written lease for a term of years between a landlord and his tenants, and in pursuance of a subsequent verbal agreement the landlord added to and improved the premises, for which the tenants verbally agreed to pay an increased rent, this court holds (the tenants claiming to have vacated the added space, and that their verbal agreement was void under the statute of frauds) that under the circumstances the additional space had not been, and could not be, without the surrender of the entire premises, surrendered to the landlord, and that the tenants were liable to the landlord in an action for use and occupation, without regard to the statute of frauds.</p>

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

Charles Blanchard, Judge, presiding. This was a suit brought by the appellee against the appellant, impleaded with Andrew Dillman, in an action of debt upon an appeal bond given by the appellant to appellee in the penal sum of $10,000, in which it was recited that appellee, on the 27th day of June, 1885, at a term of court then being holden within and for the county of Will, Illinois, obtained a decree against Andrew Dillman and Edward R. Knowlton dismissing their certain…

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

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

Isaac G. Wilson, Judge, presiding. This was an action on the case commenced by appellant in the City Court of Aurora, and venue changed to the Circuit Court to recover for alleged damages resulting to appellant, for putting in additional railroad track and switches in front of his hotel, along La Salle street, between York street on the north and Main street on the south, which track ran beyond and across Fox river.

<p>Municipal Corporations—Negligence of—Personal Injuries—Ditch— Death of Child—Responsibility of Parents—Evidence—Instructions.</p> <p>In an action against a city for damages for the death of a child, caused by the caving in of a ditch opened by defendant in "a public street, this court holds that the evidence was sufficient to support the finding of the jury that the city was negligent, and that the parents of the child were not, negligence not being imputable to the child because of his tender years; that an instruction to the jury on the question of the care required of parents toward such a child, though open to objection, was not fatally erroneous, and that the admission of evidence as to the pecuniary condition of the parents was proper, as throwing light on their ability to watch over, or provide an attendant for the child.</p>

<p>Appeal from the Circuit Court of LaSalle County; the Hon. Chables Blanchabd, Judge, presiding.</p>

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

<p>Drainage—Taxes—Levying and Collection of—Court of Chancery— Jurisdiction of—Correction of Irregularities.</p> <p>A bill in chancery seeking to enjoin drainage commissioners from levying and collecting taxes, is properly dismissed for want of jurisdiction where it appears on its face that the commissioners were acting within their powers.</p>

<p>Landlord and Tenant—Rental of House by Landlord for Use of Farm Tenant—Expiration of Leases—Holding over—Liability of Grantee of Owner of Farm to Lessor of Tenant House.</p> <p>Upon the case stated, this court holds that the grantee of the owner of a farm was not liable to the owner of a tenant house which had been leased by his grantor for the use of his farm tenant, for the rent of such tenant house, subsequent to the expiration of an express contract in existence at the time of the sale of the farm, though the tenant continued to occupy the house.</p>

<p>Master and Servant—Personal Injuries—Negligence of Master—Con tributory Negligence—Incurring Risk by Master’s Direction—Fellow-Servant—Excessive Damages.</p> <p>1. Where a master orders a servant into a place of known danger, if the danger is not absolute or imminent, so that the injury must almost necessarily result from obedience to the order, and the servant obeys the order and is* injured, the master can not afterward, in order to shield himself from responsibility, be allowed to say that the servant should have disobeyed the order.</p> <p>2. Instructions submitting to the jury the question whether or not a plaintiff and a defendant’s foreman were fellow-servants, although correctly stating the law, should be refused, where the evidence clearly shows that they were not.</p> <p>3. In the case presented the judgment is reversed, because excessive damages were allowed by the jury; it also appearing that a misleading instruction was given on the subject thereof.</p>

<p>Practice—Time for Filing Record—Extension of Time—Amendment of Record.</p> <p>1. If additional time is desired within which to file a record in this court, the motion tnerefor must be made within the statutory time for filing the record.</p> <p>2. If a continuance is desired for the purpose of procuring an amendment of the record, the correct practice is to first file a copy of the record in as perfect form as may be had, and then, upon suggestion of diminution of the record, and the procuring of a writ of certiorari, to move for a continuance until the amendment can be procured in the court below.</p>

<p>Appeal from the Circuit Court of Jo Daviess County; the Hon. James H. Cartwright, Judge, presiding.</p>

<p>Appeal from the County Court of La Salle County; the Hon. Frank P. Snyder, Judge, presiding.</p>

<p>Intoxicating Liquors—Dram Shop Act—Action for Damages—Challenge to Array—Instructions—Incidence.</p> <p>1. A challenge to the array must be based on objection to all the jurors composing the panel, and taken in apt time.</p> <p>2. The dram shop act applies to a brewer and manufacturer of ale and porter, who sells the same in cask and barrel'from his place of manufacture.</p> <p>3. The erroneous modification of an instruction is not cause for reversal, if it is apparent that it did not influence the verdict.</p> <p>4. An instruction is properly refused where there is no evidence to support it.</p> <p>5. It is not error to refuse instructions containing only abstract propositions of law.</p> <p>6. In an action under the dram shop act by a wife for the death of her husband, evidence of the financial condition of the husband at the time of his death is admissible for certain purposes.</p> <p>7. In such action evidence of statements that he did not care to live, made by the husband two weeks before his death, is inadmissible.</p>

<p>Costs—Taxation of.</p> <p>1. Every intendment must he in favor of the proper taxation of costs in the absence of any negative proof to the contrary.</p> <p>2. This court declines to interfere with a certain decree touching the taxation of costs.</p>

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

<p>Municipal Corporations—Mandamus—Satisfaction of Judgment—Bill of Exceptions—Striking from Record, by Order of Court—Evidence.</p> <p>Hpon mandamus "proceedings instituted against'a municipality to compel the paying over from its treasury of a certain sum in satisfaction of a judgment named, this court declines, in view of the fact that the bill of exceptions had been stricken from the record by order of court, to interfere with the judgment for the petitioner.</p>

<p>Practice—Signing Bill of Exceptions—Extension of Time for Presenting to Judge—Loss of Jurisdiction.</p> <p>Where time for presenting bill of exceptions was extended by agreement beyond time fixed by the judge, but the bill was not presented within the time as so extended, it is held: That the bill not having been presented to the judge within the time first fixed by him, being in vacation, he lost jurisdiction of the matter, and was powerless to again extend the time, in vacation or term time, without consent of the parties.</p>

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

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

<p>Municipal Corporations—Corporate Limits—Navigable Rivers.</p> <p>The corporate limits of a village, bounded by a navigable river, extend to the middle of the stream.</p>

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

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

<p>Attorney and. Client—Action for Fees—Evidence.</p> <p>In an action for attorneys’ fees; this court declines to interfere with the verdict for defendant.</p>

Dobeaeoe Dibell, Judge, presiding. In 1858 James Roby was the owner in fee of a certain farm and premises in Will county, Illinois, comprising 391 acres of land.

<p>Appeal from the Circuit Court of Lawrence County; the lion. Wm. C. Jones, Judge, presiding.</p>

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

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

<p>Negotiable Instruments—Note—Practice—Bill of Exceptions—Pleading.</p> <p>In an action on a promissory note, resulting in a judgment for the plaintiff, the defense relied on being based upon the statute of limitations, this court holds that, there being no bill of exceptions, and the question relied on not being properly presented by the pleadings, the judgment of the court below must be affirmed.</p>

<p>In error to the Circuit Court of Clinton County; the Hon. Amos Watts, Judge, presiding.</p>

William C. Jones, Judge, presiding. This is a demurrer to a declaration under the 9th section of the Dram Shop Act, to recover damages for injury to means of support of the wife caused by the death of the husband. Defendants in error were persons engaged in the sale of intoxicating liquor and persons who were the owners of the premises where the intoxicating liquors were sold, which premises were knowingly rented for that purpose.

<p>Bastardy—Release—Evidence—Instructions.</p> <p>1. In a bastardy proceeding, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.</p> <p>2. Evidence as to acts of impropriety on the part of the prosecuting witness, with parties other than the defendant, at times outside the period of gestation, should not be admitted.</p>

Clair County; the Hon. Benj. II. Can by, Judge, presiding. The amended bill in this case alleges the organization of the Belleville Glass Company under the laws of Illinois; that the capital stock of said company is §25,000, divided into 250 shares of §100 each; that at February term, 1886, of St. Clair County Circuit Court, one John Kloes recovered a judgment against the Glass company and one John Lorenzen for §1,157 and costs of suit, upon which execution was issued to the…

Egbert W. McCartney, Judge, presiding. The declaration charges that plaintiff and one C. S. Black-man rented to George G. Morris and James J. Clemson certain lands for which a lease was executed on the 4th day of October, 1878, the premises to be held until the 4th day of October, 1888, for the purpose of erecting thereon a stave and heading factory, and that in consideration of the leased premises' the lessees agreed with the lessor “ to put up a stave and heading factory…

O. C. Boggs, Judge, presiding. In 1870 appellants loaned Elias Wilson $75 of the school fund and took a common school mortgage on forty acres of land to secure the debt. At that time John Mason held a prior mortgage on the same land from Wilson, to secure $300 and interest.

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

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

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

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

<p>Appeal from the Circuit Court of Massac County; the Hon. R. W. McCabtney, Judge, presiding.</p>

<p>Bastardy Proceedings—Appeal—To What Court.</p> <p>An appeal does not lie direct to this court from the judgment of a County Court in a bastardy proceeding under the statute.</p>

<p>Municipal Corporations—Action on City Treasurer's Bond—Bight of Creditor of City tc Particular Fund—Payment of Fund, to Treasurer’s Successor.</p> <p>In an action by the creditor of a city, in the name of the city, on the official bond of the city treasurer, claiming that a. certain fund in such treasurer’s possession had been appropriated to the payment of plaintiffs' debt, this court holds, that upon the case presented, pleas setting up in substance that the defendant treasurer had paid the fund in question to his successor upon the direction of the city council, were good on demurrer.</p>

Louis; the Hon. Benjamin H. Caney, Judge, presiding. The information . charges that Wyatt, appellee, for the space of twenty days now last past, and more, in the county aforesaid, at, to wit, the city of East St. Louis, unlawfully has held and executed, and still does hold and execute, without any warrant or right whatsoever, the office of justice of the peace or police magistrate in said city of East St. Louis, of which said office said Wyatt, during all the time aforesaid,…

<p>Municipal Corporations—Bill to Reform Warrant Brawn on Wrong Fund in City Treasury—Necessary Allegations and Proof.</p> <p>1. Upon a bill filed to reform a warrant drawn in favor of complainant on a city treasury, but, by mistake, designating the wrong fund out of which the warrant should be paid, this court holds that the complainant should have alleged and proved that there were in the hands of the treasurer, funds applicable to the purpose, sufficient to meet the order.</p> <p>2. If the state of a city’s finances are such that its council can not lawfully authorise the issue of a warrant at the time it is issued, a court of equity will not reform the same when it has been unlawfully ordered and incorrectly issued.</p>

Ik error to the Circuit Court of Crawford County; the Hon. ¥i. C. Jokes, Judge, presiding. Hewton and Wilkin were the owners of a mill, and Wilkin sold to one Dyer an undivided one-third interest, and Dyer executed a mortgage on that one-third interest to secure the purchase money, and became a member of the firm. Dyer diéd, and a decree of foreclosure was entered on that mortgage, and on the 20th of April, 1883, under that decree, that one-third interest was sold.

Oliver A. Harker, Judge, presiding. Prior to 1882 the firm of Mann & Edwards were owners of mill property in Marion, Illinois. That firm was A. J. Mann and O. M. Edwards, Edwards owning two-thirds and Mann one-third interest in the mill; Judah E. Edwards purchased of C. M. Edwards, her husband, a one-third interest in the mill. C. M. Edwards died intestate, and the milling business was conducted by John D. Edwards, the son of C. M. Edwards, and by A. J. Mann.

Wm. C. Jones, Judge, presiding. Kinsel & Barker bought of S. B. Barker material to erect a storehouse on a village lot in Falmouth. Their title to the lot was a lease for the term of one year, made to them by Langel. The lot was leasefi and storehouse built with privilege to remove same. The money for the material became due November 10, 1886, and on the 12th of March, 1887, 8. R. Barker filed a petition in the Jasper Circuit Court to enforce a material-man’s lien.

<p>Replevin—Conditional Sale—Sale by Vendee to Innocent Third Party— Notice.</p> <p>In an action of replevin brought by the vendor of a pair of mules against a purchaser of the same from his vendee, claiming that the title of the mules was in plaintiff because of an unpaid balance on the original purchase price, the sale having been, as claimed, conditional, this court holds that there was no sufficient evidence to show that- the defendant was other than a bona fide purchaser, and that the plaintiff, having put it out of his power to return the property received by him in part payment for the mules, could not rescind the sale and therefore could not maintain replevin.</p>

<p>Appeal from the County Court of Jasper County,” the Hon. Joseph B. Crowley, Judge, presiding.</p>

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

B. B. Burroughs, Judge, presiding. Appellants were commissioners of highways, township three north, range five, west of the third .principal meridian. Appellee is the owner of lands adjoining a certain public highway in said county on the north of said highway, while the lands adjoining the said highway on the south are owned by one John Gr. Spindler.

Clair County; the Hon. William H. Snyder, Judge, presiding. This case was tried before a justice of the peace and appealed to the Circuit Court of St. Clair County. On trial in the Circuit Court, the plaintiffs, to maintain the issues on their part, gave in evidence the following transcript of judgment of a justice of the peace: “ In Justice Court, before G. W. Morgenthaler, a justice of the peace. Suit was brought by Willis Taylor and E. H. Burgess, for the use of A. 0.

<p>Appeal from the City Court of East St. Louis; the Hon. Benj. H. Caulby, Judge, presiding.</p>

<p>In ekkor to the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.</p>

Clair County; the Hon. Wm. H. Snydek, Judge, presiding. Julius A. Barnsback, The American Powder Co., and Robert Blitzing, tiled a bill in chancery in the Madison Circuit Court, averring the recovery of certain judgments against theBrookside Coal & Coke Co., the execution of certain mortgages that are alleged to be fraudulent, and averring the insolvency of the Brookside Coal & Coke Co. The bill avers further certain rights in Barnsback as lessor of lands, and charges…

<p>Landlord and Tenant—Lease of Coal Lands—Injunction to Restrain Tenant from Unlawful Acts—Damages.</p> <p>1. Where a lease of certain premises is for a specific purpose, clearly and definitely stated, and the premises are used for a different purpose, an injunction may be issued to restrain the tenant from such unlawful use, and the amount of damages suffered by the landlord is not the controlling element.</p> <p>2. Where complainant leased certain lands to defendant’s assignor, for the purpose of extracting coal, for a term of thirty-five years, unless the coal should be sooner exhausted, in which case the lease was to terminate, held, that, upon the case presented, an injunction would issue to restrain defendant from removing coal from other lands through the shaft and over the road on complainant’s land.</p>

<p>Municipal Corporations—Injunctions—Payment of Fees for Legal Services Rendered City in Action against Officers—Duties of City Attorney— Right of Mayor to Employ Counsel—Ratification of Illegal Act of Board of Aldermen—Dram Shops—Licenses.</p> <p>1. A bill seeking to enjoin the mayor and aldermen of a city from granting licenses to certain parties to keep dram shops, is an action in which the city has an interest, and under the ordinances of the city in question the mayor is warranted in securing counsel to appear and defend such suit, the city attorney having decided not to appear.</p> <p>2. Where the action of a board of aldermen, in allowing and ordering paid a claim against the city, was invalid for the lack of a majority vote, but at a subsequent meeting by a majority vote the board passed a resolution adopting, ratifying and confirming such previous action, this resolution was equivalent to an allowance of the claim.</p>

<p>Railroads—Negligence of—Horse—Crossing—Absence of Cattle Guards Immaterial When.</p> <p>In an action against a railroad company to recover damages for the killing of plaintiff’s horse, where the alleged negligence was the absence of cattle guards at a crossing, and the failure to fence, and the evidence showed that plaintiff’s horse went upon the track at and on the crossing of a public highway, and was there killed by the defendant’s engine, this court holds that the alleged negligence of defendant was immaterial, and the jury should have been instructed to return a verdict for defendant.</p>

<p>Appeal from the Circuit Court of Effingham County; the Hon. Cakroll 0. Boggs, Judge, presiding.</p>

William 0. Jones, Judge, presiding. George Loughry was indebted to Isaac D. Mail in the sum of §95.57 on a promissory note, on which Joseph Loughry was surety. Mail recovered judgment against Geo. and Jos. Loughry for that amount. Execution was issued and delivered to Allen Swim, constable, on October 13, 1877. Joseph Loughry paid $50 on that judgment and costs December 13, 1877.

Clair County; the Hon. B. R. Burroughs, Judge, presiding. Appellee filed in the County Court of St. Clair County a petition to sell leasehold interest of lands to pay debts, where, on hearing, the petition was dismissed. Appellee appealed to the Circuit Court, and on hearing, a decree for the sale of interest in lands to pay debts was entered. The appellant was not a party to that decree.

B. R. Burroughs, Judge, presiding. On September 14, 1887, appellee filed her hill in this cause against John T. Johnson and Fredericlca Rolan. On the 18tli day of Rovember, 1887, Thomas Rolan, husband of Fredericka, was made a defendant and was served with process December 19, 1887.

<p>Highways—Certiorari—Record of Proceedings in Establishing Road— Width of Road—Jurors.</p> <p>The proceedings for the establishment of the road in question were, as appears from the record, fatally defective under the statute in two respects:</p> <p>1st. The certificate of the commissioners filed with the justices of the peace described the road as one-half mile in length, but failed to state the width.</p> <p>2d. The venire issued by the justice required the constable to summon six men to serve as jurors “ at least one-half of whom shall be residents of the town of St. Jacob,” whereas, under the statute, at least one-half should not have been residents of that town.</p>

Clair County; the Hon. B. H. Caney, Judge, presiding. This is an action of forcible entry and detainer; the facts appearing are, that the appellant and appellee own land adjoining each other, and that the appellee was in possession, when the appellant, claiming title, forcibly entered upon appellee’s possession and erected a wire fence, taking the same land particularly described in the amended complaint for which appellee brought suit.

<p>Appeal from the Circuit Court of Madison County; the Hon. ¥m. H. Seyder, Judge, presiding.</p>

<p>Appeal from the City Court of East St Louis; the Hon. Benjamin H. Canby, Judge, presiding.</p>

Clair County j the Hon. William H. Snyder, Judge, presiding. This was a suit at law brought originally in the Circuit Court of St. Clair County by the Belleville Glass Company, suing for the use of the Belleville Savings Bank, against William J. Lemp, for a balance of §506.15, due on account for bottles furnished by the glass company to Mr. Lemp. There was no dispute about the amount remaining due so far as bottles furnished are concerned.

<p>Appeal from the Circuit Court of Wayne County; the Hon. C. S. Conger, Judge, presiding.</p>

<p>Pleading—Declaration Containing Counts in Replevin and Trover— "Finding of Facts—Judgment Unauthorized.</p> <p>The award of a writ of retorno by the court below being authorized neither by the state of the pleadings nor by the finding of facts, the judgment is reversed.</p>

<p>Railroads—Construction of Trestle—Diversión of Water Course—Overflow—Action for Damages—Pleading—Want of Similiter—Statute of Limitations.</p> <p>1. Objections for want of a similiter to the plea of the general issue and replications to special pleas, can not be made for the first time in this court,</p> <p>2. A railroad company is bound to construct and maintain its trestles over natural watercourses so as not to catch drift-wood and cause overflow on adjoining land.</p> <p>3. The fact that a person acquired his interest in land flooded by reason of a negligently built trestle after it was built, can not defeat his recovery.</p> <p>4. The improper and unlawful construction of the trestle is a continuing breach of duty on the part of the railroad, and each injury suffered by reason thereof constitutes a new cause of action.</p>

<p>Forcible Entry and Detainer—Verdict of Not Guilty—Variance between Verdict and Judgment—Costs—Burden of Proof—Instruction.</p> <p>1. A verdict in an action of forcible entry and detainer which finds that plaintiff is entitled to possession of the premises therein described, but further finds that defendant is “ not guilty,” does not warrant a judgment for plaintiff for recovery of the premises and costs.</p> <p>2. In such action an instruction which throws upon defendant the burden of proving that the entry was with plaintiff’s consent is erroneous.</p>

Wm. C. Jones, Judge, presiding. This is an action of replevin brought by appellant against appellee, who is the sheriff of Crawford county, Illinois, to recover certain property levied on by him as such sheriff. To the plaintiff’s declaration the defendant filed ¡deas of non eepit, non detinet, property in Charles FT. Hackett, and filed special pleas in which the recovery of five separate judgments against Charles FT.

<p>Railroads—Diversion of Water from Natural Course—Injury to Crops —Evidence.</p> <p>In an action against a railroad company to recover for injury to plaintiff’s crops, caused by its digging a ditch which diverted water from its natural course, this court sustains a verdict for plaintiff.</p>

<p>Intoxicating Liquors—Action under Section 9 of the Dram Shop Act— Credibility of Witnesses—Instructions—Assumption of Controverted Fact.</p> <p>1. An instruction is erroneous which authorizes the jury to consider the business oE the witnesses in determining their credibility.</p> <p>2. An instruction which assumes a material controverted fact is erroneous.</p>

Bobt. W, MoCabtoet, Judge, presiding. Appellant and appellee were engaged for a number of years as partners in a general mercantile business. On the 1st day of January, 1878, this partnership terminated. Appellant sold out his interest in the business to his son, J. W. Westbrook. At this time appellee was indebted to appellant in something over $1,100.

Clair County; the Hon. Wm. H. Snyder, Judge, presiding. Declaration containing the common counts, to which defendant pleaded the general issue with notice of set-off. The plaintiff, Michael Eomeis, owned certain real estate which he conveyed to one Boul with the agreement that if the real estate could be sold within those years plaintiff was to have all it would bring over the amount he was then indebted to Boul.

Geoege W. Wall, Judge, presiding. Appellee alleges in his bill that he deposited with Borders & Boyle, bankers, §2,000, July 1, 1884, and received their certificate of deposit therefor; that upon a dissolution of said partnership the management of the partnership affairs went into the hands of Borders, Boyle being then, and still remaining insolvent, outside of his interest in the bank assets.

Clair County; the Hon. William H. Snydeb, Jndge, presiding. This is an action on the case brought by appellee against appellant for damages resulting to crops by so constructing its railroad as to divert and obstruct the natural flow of water and flood appellee’s land.

<p>Appeal Horn the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding. .</p>

George W. Young, Judge, presiding. This suit was brought by appellees to recover for professional services claimed to have been performed by them for the appellant in proceedings to test the validity of certain county bonds, issued by said county under and by virtue of the provisions of the act of 1861 chartering the Belleville & El Dorado Bail road Company.

<p>Fraudulent Conveyances—Evidence.</p> <p>The fact that the transaction is unbusiness-Iike is not sufficient to establish fraud in a conveyance, in the face of the testimony of credible witnesses as to the bona fid.es.</p>

<p>Fraudulent Conveyances—Creditor's Bill—Fraud on Grantor’s Part Only—Evidence.</p> <p>1. A conveyance will not be set aside on suit by creditors, for fraud on the grantor’s part only.</p> <p>2. To prove fraud, the evidence must be clear and cogent, and leave the mind satisfied.</p>

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

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

<p>Appeal from the Circuit Court of Jasper County; the Hon. Wm. C. Jones, Judge, presiding.</p>

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

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

<p>In error to the Circuit Court of St. Clair County; the Hon. B. H. Caney, Judge, presiding.</p>

Geo. W. Wall, Judge, presiding. William Murphy executed his note to Andrew Cleiman, of date February 11, 1882, due September 1, 1882, for §1,200, with Wm. Cohen surety thereon. Murphy died on April 19, 1883. Cleimen presented the note, and the same was allowed as a claim against the estate of Murphy.

Carroll C. Boggs, Judge, presiding. The evidence in this case shows that appellant constructed a switch and established a station called Ellery on the line of its road, and a small hamlet was built up at this station, to and from which merchandise and other commodities were shipped.

<p>In ebbob to the County Court of Pope County; the Hon. Geokge A. Cbow, Judge, presiding.</p>

Cabboll C. Boggs, Judge, presiding. This suit in case was brought by appellant to recover damages for the alleged destruction of a crop of oats; a general-demurrer to an amended declaration of two counts was interposed by defendant and sustained by the court. The plaintiff elected to stand by the declaration; the court thereupon entered judgment against him for costs, and he took this appeal.

<p>Appeal from the Circuit Court of St. Clair County; the Hon. Geo. W. Wall, Judge, presiding.</p>

Clair County; the Hon. Wm. H. Snyder, Judge, presiding. In April, 1865, Adam Karr filed his bill to foreclose amortgage executed to him by Mary Ann Freeman, Eliza Jane Freeman and Charles Freeman, joined by his wife, Ruth. The bill set up a second mortgage on a part of the land covered by the Karr mortgage to one William Homeier, and also judgments, one in favor of Julius Leise, and the other in favor of Newberger and Walfort, against some of the mortgagors.

<p>Trespass—Vi Bt Armis—Witnesses—Evidence—Instructions.</p> <p>1. The wife of one who brings an action of trespass vi et armis as next friend, and gives bond for costs, is a competent witness for plaintiff.</p> <p>2. An instruction for plaintiff that the jury, in judging of the preponderance of the evidence, are to be governed by the quality and not_the quantity, is not error, though a greater number of witnesses have testified for defendant.</p> <p>3. Where the evidence' is conflicting the verdict of the jury will be allowed to stand.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. Geo. W. Wall, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Hariies, Judge, presiding.</p>

Circuit Court of Madison County; the Hon. Benj. II Burroughs, Judge, presiding., Oscar Washington was killed at the time of the railroad strike in East St. Louis in April, 1886. His administratrix brought this suit March 26, 1888, making the Louisville and Hashville Railroad Company, the South East and St. Louis Railway Company, Samuel Jones, William Luster, Stewart Martin, John Hague, George Burnett and John Williams, parties defendant.