Volume 36 — Illinois Appellate Court Reports

<p>Administration—Claims Due from Administrator—Practice.</p> <p>1. An administrator, who has included in his inventory notes due from himself which he claims he is not liable to pay, can not give himself credit therefor and have his liability tried by the Probate Court on exceptions to his report.</p> <p>2. The proper mode of procedure is for the court to appoint an administrator pro tern, to bring suit on the notes and prosecute it to final judgment.</p>

<p>Replevin—Ownership-—Possession—Instructions.</p> <p>In replevin, where the evidence of ownership is conflicting, an instruction that defendant’s possession at and after the commencement of the action is prima facie evidence of his ownership, and that, being in possession, he is presumed to be the owner, is erroneous.</p>

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

<p>Homestead—Abandonment—Evidence.</p> <p>Where one, during his tenure of public office, leaves his homestead, together with his family, intending to return thereto, and goes to reside at another place, where he afterward votes, he does not thereby lose his right of homestead.</p>

<p>Appeal from the Circuit Court of Clinton County; the Hon. Benj. R. Burroughs, Judge, presiding.</p>

<p>Divorce—Suit by the Husband—Extreme and Repeated Cruelty—Desertion—Refusal to Permit Sexual Intercourse—Justifiable Refusal—Evidence—Instructions.</p> <p>1. In a suit by the husband it is held, that the evidence did not warrant a decree of divorce on the ground of extreme and repeated cruelty.</p> <p>2. Refusal of the wife, without justifiable cause, to permit sexual intercourse for a period exceeding two years, is equivalent to desertion, and entitles the husband to a divorce.</p> <p>3. In the case at bar it is held that the action of the husband justified the wife in refusing him sexual intercourse.</p> <p>4. In the case at bar the refusal of instructions which ought to have been given, is held to be no ground for reversal.</p>

<p>Sales—Failure to Deliver—Waiver—-Construction of Contract.</p> <p>In the case presented it is held: That a provision in a contract to furnish coal, that if the seller fails to furnish it the buyer may purchase elsewhere, is not a waiver of the seller’s liability in damages for such failure.</p>

JBeíu. B. Burroughs, Judge, presiding. On July 1, 1885, Cal. Martin, John Bssant, Jr., W. B. Basback and W. A. Ingram made their promissory note to William Casson, due twelve months from date, for §100, with interest at eight per cent per annum; Martin was the principal and the others sureties on the. note. Summons was served on the three defendants, the sureties, the principal not found.

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

Wm. H. Snyder, Judge, presiding. Appellee was injured by a fall upon a sidewalk on the north side of Broadway between Locust and Oak streets in the city of Centralia, occasioned, as appellee claims, by adefect in the sidewalk. The sidewalk was some nine feet in width and made of boards. The stringer near the street had decayed and would not hold nails.

<p>Intoxicating Liquors—Sale—Question for the Jury.</p> <p>In a suit by a city to recover the penalty for selling intoxicating liquors, this court declines to interfere with a verdict for defendant.</p>

Clair County; the Hon. Wm. H. Snyder, Judge, presiding. This suit was brought in the name of plaintiff in error, for the use of Griswold, against Flannigen and his sureties upon his bond as treasurer of said city. Defendants demurred generally to plaintiff’s second amended declaration; the demurrer was sustained, and plaintiff electing to abide by its declaration as so amended, final judgment for defendants was entered, to reverse which this writ of error was sued out.

Wm. H. Snyder, Judge, presiding. On April 1,1889, Timothy Gruaz, appellee, presented to the appellants, assignees of the bankrupt firm of E. Ryhiner & Co., the following claim against the bankrupt estate, and the assignees did not file the same in the County Court until August 6, 1889: “ Timothy Gruaz, being duly sworn, on oath says that the claim (a copy of which is hereto attached) of himself against the above named firm of F. Ryhiner & Co., is for money dne on value of…

<p>Municipal Corporations— Negligence — Personal Injuries — Defective Streets—Proximate Cause—Evidence.</p> <p>In an action against a city for a death from cerebro-spinal meningitis claimed to have been caused by a blow in the back, received in an accident on a defective street, this court sustains a verdict for plaintiff.</p>

Carroll C. Boggs, Judge, presiding. On the 16th day of December, 1880, James Miller sold to appellant, James C. Miller, his son, 120 acres of land, situated in Wayne county, for $1,500. The vendor executed to the vendee a bond for a deed; $200 was paid when the bond was delivered, and the remaining $1,300 was to' be paid in annual installments of $200. There is a dispute as to the subsequent payments.

Wm. C. Jones, Judge, presiding. This suit was brought to recover the amount due on three notes for §3,400 each, bearing date August 7, 1885, payable respectively in two, three and four years with six per cent interest, made and delivered by defendant to his father, plaintiff’s intestate. The defenses were the general issue, statute of limitations, set-off, payment.

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

<p>Appeal from the Circuit Court of Jackson County; the Hon. 0. A. Harker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Perry County; the Hon. Benjamin E. Burroughs, Judge, presiding.</p>

<p>Intoxicating Liquors—Unlawful Sale—Original Paclcage—Jury— Officer in Charge Must be Sworn.</p> <p>1. Sec. 1, Chap. 43, Laws 1887 (Starr & Curtis, 237), prohibits the sale of intoxicating liquors outside of the incorporated limits of any city, town, or village, except in original packages, and such packages must contain five gallons or more.</p> <p>2. The requirement of the statute, that the officer placed in charge of the jury when they retire to make up their verdict must be sworn, can not be dispensed with even in misdemeanors, except by an agreement, noted upon the minutes of the court.</p>

<p>Highways—Eminent Domain—Proceedings of Commissioners—Certiorari.</p> <p>1. Certiorari is the proper remedy to review the proceedings of the commissioners of highways in establishing a road.</p> <p>2. Before damages can be assessed for land taken for a public highway, the survey of the proposed road must be filed as required by Sec. 86, Chap. 121, R. S.</p> <p>8. The certificate of the commissioners required by Sec. 41, Chap. 121, R. S., to be presented to a justice of the peace within ten days from the granting of a petition to establish a public highway, must be so presented or the commissioners can not proceed.</p>

Benjamin JR. Burroughs, Judge, presiding. Plaintiff in error as administrator, brought this action against the railway company to recover damages for causing the death of his intestate, who was killed by defendant’s train striking the vehicle in which deceased was riding, at a public highway crossing.

<p>Railroads—Expulsion from Train—Defective Ticket—Bill of Exceptions.</p> <p>1. A railroad company can not refuse to accept a defective ticket for passage, where the defect is due to the carelessness of its agents.</p> <p>2. The bill of exceptions must show that it contains all the evidence heard on the trial.</p>

Jesse Jones, Judge, presiding. Appellant, on the 1st day of July, 1887, sold to Thomas Pritchett, a twine binding harvester. Appellant took from Pritchett at time of sale, three notes: one for $50, due October 1, 1887; one for $50, due October 1, 1888, and one for $42, due October 1, 1889. All the notes were guaranteed by J. A. Skipper. When the first note fell due, Pritchett was not ready to pay it. He was asked to give a chattel mortgage to secure the notes.

Benjamin R. Burroughs, Judge, presiding. On August 24, 1888, Louis Granneman filed his bill for injunction in the court below, making Campbell, as sheriff. William Mulholland and Margaret Mulholland, defendants, It is alleged in said bill that complainant recovered judgment against the Mulliollands for $162.66 and costs at the March term, 1886, of said court, which judgment is in full force and unpaid.

Benjamin R. Burroughs, Judge, presiding. Appellee brought his action of assumpsit against appellants and the Salem Coal and Mining Co. on three promissory notes, one for $167.24 due in thirty days, one for $200 due in sixty days and one for $200 due in ninety days. The notes are of the same date and alike in form and manner of signing except as to the amounts and time of maturity.

<p>Fraudulent Conveyances—Suit to Set Aside—Trustee's Sale—Evidence—Creditor's Bill.</p> <p>1. A bona fide trustee’s sale will not be set aside because the value of the property was much greater than the amount bid therefor.</p> <p>2. A trustee’s sale will not be affected by an inaccurate statement of the amount of the debt, contained in the notice of the sale, unless made for fraudulent purposes.</p> <p>3. In a suit to set aside various conveyances as fraudulent, in view of the evidence it is held: That certain of the conveyances were in good faith and for valuable considerations, while others were properly set aside.</p>

Robt. W. McCartney, Judge, presiding. Appellant was charged with a violation of the city ordinance by unlawfully obstructing a street of the city by the erection of fences across it. He was convicted in the justice’s court and judgment was rendered against him for §10 fine and costs. He appealed to the Circuit Court and there judgment was rendered against the city for costs.

C. C. Boggs, Judge, presiding. This is an action brought by appellee to recover for injuries sustained while acting as brakeman on defendant’s freight train. The negligence charged is a defective condition of the roadbed and rails of defendant’s road at the place and time the injury was sustained, and the failure to provide a handhold on car.

<p>Trusts—Consideration—Administration—Evidence—Mortgages.</p> <p>1. In a suit by an administratrix, to compel the payment of a mortgage out of money received by defendant from an insurance company on a policy on her intestate’s life, payable to defendant, which money it is alleged is held by defendant in trust to pay the debts of the estate, neither the heirs nor the insurance company are necessary parties.</p> <p>2. Where in such suit the mortgage which defendant is ordered to pay is less than the amount of the trust fund held by him, he can not complain that the amount of the mortgage was not properly proven, nor that it was ordered to be paid to the administratrix, to be paid out by her.</p> <p>3. Where a trust is completed no consideration is necessary.</p>

W. W. Duncan, Judge, presiding. On Hay 10, 1888, the board of directors of District 4, T. 10 S., E. 3 E., held a meeting for the purpose of employing teachers. Appellee solicited employment as a teacher. In acting on applications for employment the board determined to employ appellee and gave her notice of her employment.

<p>Replevin—Wife's Separate Property—Sale—Evidence—Corporations.</p> <p>1. Where there is a question whether money paid by the wife was her separate property or her husband’s, it is competent to show that she had borrowed from a third person similar amounts on her own credit.</p> <p>2. Though the property is covered by a chattel mortgage, a surrender by the parties thereto by way of sale and delivery of possession to pay a subsisting debt, without actual or intended fraud, is valid.</p> <p>3. Where the officers and stockholders of a corporation acquiesce in a sale and transfer by the president of all the assets of the corporation for a debt, they can not, in the absence of fraud, question the president’s power to make it; nor does a subsequent judgment creditor of the corporation, with notice, occupy a better position.</p>

Clair County; the Hon. Geo. W. Wall, Judge, presiding. Appellants brought three suits against appellee to recover the value of four cases of quilts bought by appellants in New York, five bales oil sheeting bought in Evansville, Indiana, and twelve bales of domestics bought in Columbus, Georgia.

<p>Divorce—Adultery—Custody of Child—Alimony.</p> <p>1. In a suit by the wife resulting in a divorce on the ground of adultery it is held that the wife was entitled to the custody of her three-year-old daughter; that a solicitor’s fee of @75 allowed her was not excessive, and that she was properly allowed @2,000 alimony.</p> <p>2. While a decree of divorce, giving the wife the custody of her infant child and allowing her alimony, should specify the amount intended for herself and her child respectively, failure to so specify is not reversible error.</p>

<p>Exemptions—Execution—Schedule—Want of Signature.</p> <p>Where the officer levying an execution receives from the debtor a schedule of his property, swears him to it, and carries it away, he can not afterward question its validity for want of the debtor’s' signa ture thereto.</p>

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

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

<p>Appeal from the Circuit Court of Randolph County; the Hon. Benj. R. Burroughs, Judge, presiding.</p>

<p>Sales—Action for the Price—Estoppel—Evidence.</p> <p>One who purchases bridges by the pound, and at the time of each purchase receives a statement of the weights, can not, after putting them up without complaint, claim over-charge in weights, and prove the weights by measurement.</p>

<p>Intoxicating Liquors—Illegal Sales—Evidence.</p> <p>On indictment for selling intoxicating liquors to a person in the habit of becoming intoxicated, this court declines to interfere with a finding of guilty by the court below.</p>

<p>Municipal Corporations—-Indebtedness—Constitutional Limitation— Health Officer—Evidence.</p> <p>1. The salar) of a health officer appointed by a city is an indebtedness within the inhibition of Sec. 12, Art. 9 of the Constitution, prohibiting a city from becoming indebted beyond the constitutional limit.</p> <p>2. A statement of a city’s indebtedness, duly certified to by the city clerk, is competent original evidence of such indebtedness.</p> <p>3. A record may be proven by a statement thereof sworn to as an examined copy.</p> <p>4. In an action for salary due from a city for services, it is held: That the evidence shows that at the time the services were rendered, the city was indebted beyond the constitutional limit, and that it is not therefore liable.</p>

<p>Homestead—Assignment—Practice—Execution—Evidence—Res Ad judicata.</p> <p>1. Objections can not, be raised for the first time in this court, which, if raised below, could have been obviated by proof or amendment.</p> <p>2. An execution is not defective in not showing the date of the judgment.</p> <p>3. The affidavit of the judgment debtor is not sufficient to contradict the sheriff’s return that the commissioners summoned to set off the debtor’s homestead were householders..</p> <p>4. The amount of the homestead depends on the statute in force a,t the time it is set off.</p> <p>5. A homestead which has been once set off, may, upon increase of the property in value, again be subject to assignment and division.</p> <p>6. On motion by plaintiff in error to set aside an execution and sale of land which was claimed as his homestead and sold by him with warranty before the levy, it is held tha,t he is bound by a decree in a suit to enjoin the sale, brought by his grantee and prosecuted in their joint interest.</p>

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

<p>Master and Servant—Wages—Recovery of—Evidence—Witness—Religious Belief.</p> <p>1. In an action for wages under a contract of hiring, this court declines to interfere with the finding for the defendant.</p> <p>2. In an action on a verbal contract, a memorandum made by one of the parties and read to the other, at the time the contract was made, is admissible as tending to show what the contract was, and also as part of the res gestee.</p> <p>3. A person’s religious belief or unbelief can not render him incompetent as a witness.</p>

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

<p>Partnership-Assets—Res Adjudicata—Estoppel.</p> <p>1. A valid decree winding up a partnership and declaring certain patents partnership assets, is a bar to a suit by one of the partners to establish his claim to the patents as individual property.</p> <p>2. A partner, who, without objection, on the winding up of a partnership under a decree, allows property to be sold as partnership assets, and the money to be paid therefor, can not afterward assert that it was his individual property.</p>

<p>Mortgages—Can eellatton—-Evidence.</p> <p>In a suit to cancel a mortgage and note thereby secured, held by defendant as assignee, which complainant alleges were paid by defendant out of money received by him in conducting complainant’s business, this court sustains a decree for complainant.</p>

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

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

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

<p>Sales—Rescission—Evidence.</p> <p>In an action for the price of goods sold, the sale of which defendant claimed to have been rescinded by mutual consent, this court declines to interfere with the verdict for defendant.</p>

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

<p>In error to the Circuit Court of Winnebago County; the Hon. William Brown, Judge, presiding.</p>

O. H. Horton, Judge, presiding. The N. C. Thompson Manufacturing Company, one of the defendants in error, was a corporation duly organized under the laws of this State, engaged in business at Rockford, Illinois, in the manufacture and sale of a general line of agricultural implements.

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

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

Dorrance Dibell, Judge, presiding. This is an appeal from an order of the Will County Circuit Court overruling and refusing appellant’s motion to set aside and vacate a sale of certain real estate made by the master in chancery, pursuant to a decree oE that court in a cause theretofore pending therein, wherein the bank above named was complainant and the appellant and others were defendants.

<p>Sales—Failure to Deliver—Evidence—Account Boohs—Instructions.</p> <p>1. A memorandum book is not competent evidence on behrdf of the person who made the entries therein, without the preliminary proof required by statute as to the character of the book and method of keeping it.</p> <p>2. The mere fact that the other party saw the entries does not amount to an admission of. their correctness.</p> <p>3. A buyer can not recover damages for failure to deliver goods sold him, the price of which increased after the purchase, unless it is shown that the sale was on time, or that he tendered payment or was ready and willing to pay for them when demand for their delivery was made.</p>

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

<p>Contracts—Conditional Delivery—Evidence—Pleading—Instructions.</p> <p>1. In an action for breach of contract it is competent under the general issue to show by parol evidence that the contract was delivered conditionally.</p> <p>2. In such action defendant may, after having gone to trial on a plea of the general issue, file a sworn plea denying delivery of the contract.</p> <p>3. In an action for breach óf a contract to purchase a monument, this court holds that the contract was incomplete on its face, and should not have . been admitted in evidence.</p> <p>4. An instruction which invites the attention of the jury to matter not really in the case is improper.</p>

<p>Sales—Warranty—Instructions.</p> <p>1. One can not enforce a warranty imposing mutual and dependent obligations and covenants until he has shown compliance on his part.</p> <p>2. A provision in a contract of sale warranting a machine to do good work, which requires the purchaser to give notice of dissatisfaction within five days, and makes his failure to do so evidence of fulfillment of the warranty, is just and binding.</p> <p>3. In case of such a provision, it is error to instruct the jury that the purchaser had a right to test the machine for a “reasonable time.”</p> <p>4. An instruction is erroneous if there is no evidence to which it can apply.</p>

<p>Municipal Corporations — Public Work—Contracts — Construction — Extras—Practice—Estoppel—Remittitur—Evidence.</p> <p>1. Where a contract contains general technical words appropriate to a particular trade, parol evidence from those familiar with the trade as to the meaning of the words is admissible.</p> <p>2. In an action against a city for labor and material furnished under contract, this court declines to interfere with the verdict for plaintiff.</p> <p>3. Where a city with which a person has contracted to do certain work within a certain time, takes the work out of his hands without his default, such person may quit the work and sue on the quantum meruit.</p> <p>4. Where such contract provides that no extra work shall be allowed or paid for, unless done on the written order of the city engineer, and further provides that the contractor's claim for extra work must be made in writing within a certain time, the failure of the engineer to put his orders in writing will be considered a waiver of the right to insist on the contractor’s putting his claim in writing.</p> <p>5. In an action on such contract it is held: That the above provisions apply only to minor and unimportant changes incident to the contract, and likely to occur in carrying it out, and not to radical changes and departures from the plans.</p> <p>6. The city can not wait until the extra work is completed before insisting on the contractor’s complying with the above provision, but must do so when the work is ordered.</p> <p>7. Assumpsit will lie for property wrongfully taken and converted to one’s own use.</p> <p>8. Courts will not reverse for unimportant errors in the progress of a trial, or in instructions which have not misled the jury, and do not affect the merits of the case.</p> <p>9. Appellant can not assign as error the court’s action in permitting appellee to remit part of the verdict before entering judgment thereon.</p>

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

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

<p>A gency— Eviden ce—In struct ion s.</p> <p>I. In an action on a due bill, it is held that the evidence was sufficient to warrant the findings that the person who issued it had authority as defendants’ agent to do so, and that defendants afterward ratified its execution, and that there was no error in the giving or refusing of instructions.</p> <p>2. Unless all the instructions given for appellants are contained in the abstract, this court will presume that their refused instructions were properly refused.</p>

<p>Municipal Corporations—Officers—Village Trustees—Wilful Neglect of Duty—Special Election—Quo Warranto—Instructions.</p> <p>1. In quo warranto to determine the right to an office, an instruction that the wilful absence of relator and failure to perform the duties of his office would amount to a resignation, is properly refused if it contains no declaration as to the length of time of such absence.</p> <p>2. Where a member of the board of trustees of a village wilfully absents himself from the meetings of the board, and neglects to perform the duties of his office for a period of eight months, he will be deemed to have resigned his office, and it may be filled by special election upon order of the remaining members of the board.</p>

<p>Criminal Law—Cutting Trees—Indictment—Evidence.</p> <p>1. An indictment for cutting trees on the land of another under Sec. 325 of the Criminal Code, which charges the offense in the language of the statute, is sufficiently specific without describing the land, and containing the words “ then and there.”</p> <p>2. On indictment for cutting trees on land belonging to a corporation which could only give consent to such cutting by resolution passed at a meeting of its officers, evidence of the verbal consent of some of the officers is inadmissible. .</p> <p>3. On indictment for an act prohibited by statute, defendant’s testimony as to his motive in committing the act is properly rejected.</p> <p>’4. Sec. 1, Laws 1885, relating to cemeteries and making it a crime to cut trees therein, does not, by implication, repeal Sec. 325 of the Criminal Code, in so far as it also provides a punishment for such an act.</p>

<p>Railroads—Personal Injuries—Negligence—Evidence—Practice.</p> <p>1. In an action against a railroad company for personal injuries, it is held that the evidence showed negligence on plaintiff’s part, and none on the part of defendant.</p> <p>2. In such action plaintiff can not recover upon any proof of negligence other than such as is charged in his declaration.</p> <p>3. An agreement, in consideration of a free pass over a railroad, that the company shall not be liable in case of personal injuries, except for gross negligence, is binding on the passenger.</p>

<p>Practice—Evidence.</p> <p>Where the assignment of error is that the verdict was against the evidence and instructions, and no complaint is made of the giving or refusal of instructions, and the evidence was such as to warrant the verdict, the judgment will be affirmed.</p>

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

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

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

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

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

<p>Landlord and Tenant—Trade Fixtures—Time of Removal.</p> <p>1. A bar counter and shelf placed in a building by the tenant for the purpose of conducting a saloon, and attached to the realty so that they can be removed without injury to the premises, are trade fixtures and do not pass with the realty.</p> <p>2. What is a reasonable time within which trade fixtures should be removed is a question of fact for the jury under the instructions of the court.</p>

<p>Landlord and Tenant—Lease under Seal—New Parol Lease—Estoppel —Evidence—In structions.</p> <p>1. Where one, holding under a lease under seal, holds over and pays the stipulated rent after his term expires, his tenancy is not by virtue of the original lease, and anew parol lease may be made.</p> <p>2. Where one holds under a lease providing for monthly payments, an agreement to pay semi-monthly is sufficient consideration fora new lease for less rent.</p> <p>3. Where a new lease is fully executed, while the lessee is in possession under a former lease, and money is paid in accordance with it, the lessor is estopped to avoid it.</p> <p>4. Evidence in this case is held to establish the execution of a new lease.</p>

<p>Actions — Limitations — Non-resident Defendant — Secs. 18 and 30, Chap. 83, R. S.</p> <p>1. Where the payee of a note, made and payable in this State, is at the time the note becomes due, and continues a resident of this State, and the maker has always been and continues a non-resident, coming into the State occasionally on business only, the statute of limitations of this State does not run against an action on the note.</p> <p>2. Sections 18 and 20, Chap. 83, R. S., construed.</p>

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

<p>Sales—Chattels—Delivery—Eights of Creators—Attachment—Loss of Lien.</p> <p>1. A sale of personal property without delivery is effective against creditors of the seller, unless they take action to avoid it before the purchaser takes possession.</p> <p>2. The lien of an attachment is lost if the officer making the levy, or his agents, fail to retain the custody and possession of the property.</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 Ogle County; the Hon. James H. Cartwright, Judge, presiding.</p>

<p>Appeal from the County Court of Iroquois County; the Hon. Alex L. Whitehead, Judge, presiding.</p>

<p>Partnership—Joint Bight of Action—Pleading—Presumption.</p> <p>1. Where plaintiffs sue as copartners, their joint right of action will be presumed unless defendant interposes a verified denial of their copartnership-</p> <p>2. In an action for labor performed this court declines to interfere with a verdict for plaintiffs.</p>

<p>Principal and Surety—Release of Surety—Sale—Evidence.</p> <p>1. The sureties on a bond conditioned for the payment by the principal of a certain amount for merchandise which may be furnished him, are not liable to a beneficiary who agrees with the principal for the payment bf a larger amount.</p> <p>2. One who sells merchandise absolutely to a manufacturer who has given bond conditioned for the payment of such dividends as he may earn, can not hold the sureties liable.</p>

<p>Principal and Surety—Masters in Chancery—Action on Bond—Fees— Set-Off—Decrees—Joinder of Issue.</p> <p>1. The sureties on the official bond of a master in chancery are bound by his agreement to accept less than his legal fees.</p> <p>5?. A decree fixing the fees of a master in chancery a.t less than the law allows can not be attacked by his sureties in an action on his official bond.</p> <p>3. In such an action, the people being the real plaintiffs, defendant can not raise a question as to the uses for which the action was brought.</p> <p>4. Where a party has, without objection, gone to trial without joinder of issues, he can not complain on appeal.</p>

Charles Kellum, Judge, presiding. This was an action on the case brought against appellee under the statute concerning injuries caused by the wrongful killing of persons. The declaration counts for the wrongful killing of Henry Kolb, the husband of appellant, occasioned by a fall through a trap or hole in the floor of appellee’s shop or manufactory in the city of Sandwich in said county.

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

<p>Sales—Illegality—Avoidance—Delivery—Partnership—Dissolution.</p> <p>1. The mere knowledge of the seller that the buyer intends an unlawful use of the goods sold will not avoid the contract of sale.</p> <p>2. Delivery to a carrier of goods sold is delivery to the consignee, and the law of the place of sale and delivery governs the validity of the sale.</p> <p>3. Where different sales are made, the illegality of one or more will not invalidate those which were legal.</p> <p>4. Where several notes are given in settlement of an account embracing sales, one or more of which were illegal, the seller, in an action on one of the notes, may appropriate to the illegal sales such of the other notes as are sufficient to cover them.</p> <p>5. The individual members of ’ a partnership who continue to use the partnership sign, and give no notice of dissolution, are liable for debts contracted in the partnership name.</p>

N. J. Pillsbury, Judge, presiding. The complainant is the owner of bonds of the Plymouth) Kankakee & Pacific Railroad Company, out of 398 bonds secured by a first mortgage on the property rights and franchises of this company. Each of the bonds called for $1,000, and is payable in thirty years, with interest at the rate of seven per cent, represented in coupons.

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

Isaac Gr. Wilson, Judge, presiding. This action was brought by the appellee to recover damages for personal injuries received by being run over by the engine of the appellant while in its employ as conductor and acting brabeman, while in the line of his duty in uncoupling ■the engine from the freight cars.

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

<p>Master and Servant—Wages—Recovery of—Abandonment of Service— Evidence.</p> <p>In an action for labor under a contract of hiring which defendant claimed was broken by plaintiff’s leaving his employ, it is held that the evidence warranted a verdict for plaintiff.</p>

<p>Administration — Practice — Counter-claim — Limitations—Evidence— Instructions.</p> <p>1. A counter-claim, which is barred by the statute oE limitations, may be «leaded against a claim which was owned by the claimant before the period of limitation expired.</p> <p>2. In such case evidence of services rendered by the claimant against which the statute has run are admissible to show satisfaction of the counterclaim.</p>

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

<p>Sales—Breach of Warranty—Notice—Waiver—Judgment,</p> <p>1. Where notes with power of attorney to confess judgment, given in payment of a machine warranted to do good work, are put in judgment before breach of the warranty, which afterward occurs, the judgment should be set aside on motion supported by affidavits, and the purchaser be allowed to plead.</p> <p>2. If the seller responds to verbal notice of breach of warranty, he thereby waives a provision in the warranty that the notice must be in writing, and must be also given his agent.</p>

<p>In error to the Circuit Court of Marshall County; the Hon. T. M. Shaw, Judge, presiding.</p>

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

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

<p>Mechanic's Lien—Husband and wife—Agency—Estoppel—Evidence.</p> <p>1. If, after a contract for labor on a building belonging to the wife is made by her husband with one who is ignorant of the wife’s interest, the wife, knowing what is being done, does not disclose her interest or prevent the work, she will be estopped to set up her rights as a defense to a mechanic’s lien.</p> <p>2. In this suit to foreclose a mechanic’s lien, it is held that the husband contracted for the work as his wife’s agent.</p>

<p>Attachment—Debt not Due—Intervention of Judgment Creditor.</p> <p>1. A creditor can not bring attachment if no part of his claim is due.</p> <p>2. A judgment creditor can interplead in an attachment suit and set-aside a judgment entered therein on a debt not due.</p> <p>3. A debt not due when an attachment suit is commenced thereon will be postponed to a junior attachment creditor whose debt is due.</p>

James H. Cartwright, Judge, presiding. This was a proceeding commenced by motion filed by appellee in vacation, after the February term, 1889, of the Circuit Court of Jo Daviess, for rule ,to be entered against appellant, commanding him to pay over to the appellee the sum of §40,000, deposited with Richard A. Oliver, appellant’s successor in office, as the treasurer of said county, in March, A. D. 1886, by appellee, in conformity with Sec. 14 of the “ Eminent Domain Act.”…

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

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

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

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

<p>Practice—Bill of Exceptions—Certificate of Evidence.</p> <p>A judgment will not be reversed for insufficiency of the evidence, in the absence of a certificate in the bill of exceptions that it contains all the evidence.</p>

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

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

<p>Practice—Appeal—Want of Bill of Exceptions.</p> <p>Where no errors are assigned except such as require an examination of the evidence as preserved in the bill of exceptions, which has been stricken from the record, the judgment will be affirmed.</p>

<p>Foreign Judgments—Limitation.</p> <p>1. An action on a foreign judgment recovered before a justice of the peace must be commenced within five years after its rendition. •</p> <p>2. There seems to be some doubt as to the advisability of this holding.</p>

<p>Exemptions—Replevin—Bond—Evidence—Instructions—Executions.</p> <p>1. It is the duty of the officer serving an execution to inform the debtor of the nature of the writ.</p> <p>2. Where there is no evidence on which to base an instruction it should be refused.</p> <p>3. In an action on a replevin bond, given in replevin of goods in the hands of an officer under execution, it is held: That the jury were justified in finding that defendant’s failure to present a schedule of his property within ten days after the executions were served, was due to mi-"representations of the officer, and did not deprive him of his right to claim his exemptions, and ttiat there was no error in giving and refusing instructions.</p>

<p>Appeal—Practice—Failure to File Briefs.</p> <p>The court will reverse for failure of the appellee to file briefs.</p>

<p>Joint Appeal—Bond—Practice.</p> <p>A joint appeal will be dismissed unless all the appellants sign the bond.</p>

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

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

<p>Insolvency—Voluntary Assignment—Continued Custody of Property by Assignor at Assignee's Bequest—Attachment—Jurisdiction of County Court.</p> <p>1. The County Court has full and exclusive jurisdiction of insolvent estates under deeds of assignment made in conformity with the statute, and before any other jurisdiction has attached, except in special cases, when courts of equity may interfere to promote the ends of justice.</p> <p>2. Upon an order of the trial court affirming an order of the County Court directing that certain property attached be returned to the assignee under a voluntary assignment, this court holds that the County Court had jurisdiction of the same, and that relief should have been claimed, and the validity of the assignment questioned in that court alone.</p> <p>3. Property described in the inventory under a deed of assignment, left with the assignor, under an arrangement with the assignee that he shall be compensated for care of the same up to the time of sale, is within the jurisdiction of the County Court.</p>

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

<p>Injunctions—Annulment of Judgment after Rendition—Execution—Justice—Mistake of Law.</p> <p>1. A justice of the peace can not annul a judgment after its rendition by him.</p> <p>2. Equity will not relieve on account of mistakes at law, where the facts are, or by the exercise of due diligence might have been known.</p> <p>3. Ignorance of law will not excuse any person either for a breach or omission of duty.</p>

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

<p>Administration—Claim of Administratrix—Sec. 72, Chap. 3. Starr & C. III. Stats—Limitations—Subsequent Promise—Partnership.</p> <p>1. A partnership debt is joint and several, and a creditor may either proceed against assets in the hands of a surviving partner, or against the estate of a deceased partner, and a failure to pursue partnership assets can not be relied upon as a defense, when suit is brought against the estate.</p> <p>2. Upon a claim filed by a widow and administratrix against the estate of her deceased husband, to recover money paid out by her in his lifetime, in behalf of a partnership of which he was a member, this court declines to interfere with the verdict in her behalf.</p>

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

<p>Creditor's Bill—Fraud—Injunction—Dissolution—See. 12, Chap. 69, B. S.—Damages—Estoppel.</p> <p>1. Where an injunction is an important part of the relief sought in a given case, solicitor’s fees are allowable upon dissolution thereof, as part of the damages, where the services were rendered in connection therewith. Fees for services in and about a branch of a given case, independent of the injunction, should not be included.</p> <p>2. In the case presented, this court holds that the fees in question were incurred in defeating the action; that the dissolution of the injunction necessarily followed as incidental to that result; that the only damage sustained by reason of the injunction was the delay in the payment to defendant upon her execution, that she was duly compensated therefor, and that the portion of the decree allowing as damages such fees can not stand.</p>

<p>Nuisance—Criminal Code—Sec. 221—Highway—Obstruction of—Acceptance—Evidence—Instructions.</p> <p>1. To establish a highway by dedication, acceptance is as essential as the offer. Nor will it be presumed from the offer, though beneficial, where it also imposes a burden, and like the offer, acceptance must be proved by some certain unequivocal act satisfactorily showing the iniention.</p> <p>2. The intention on the part of the o w ner may be manifested in writing, or by declarations, or by acts in pais. A survey and plat alone may suffice and there can be no doubt that the streets and alleys of an incorporated town or village, used and recognized as such by the public, are highways to be protected against obstruction in the same manner as other public roads.</p> <p>3. • The acceptance of an offer of dedication can be proved by a municipality, only by its own act, or that of those authorized in such matters to represent it.</p> <p>4. To establish a public duty to keep open and in repair a highway by dedication, to treat any and all ob -tractions of it, by any and all persons, as nuisances, acceptance must be shown by something more than travel alone.</p> <p>5. The mere fact that a highway is traveled over by whoever has occasion, or sees fit to do so, is not sufficient evidence of dedication.</p> <p>6. Upon an information charging defendant withiobstrueting two streets and a public alley by erecting a fence, the contention being as to whether said streets had ever been dedicated to and accepted by the public, this court holds that there is no evidence of such acceptance as the law requires, and that the verdict against the defendant can not stand.</p>

<p>In error to the Circuit Court of Macon County; the Hon. E. P. Vail, Judge, presiding.</p>

<p>Master and Servant—Recovery of Wages.</p> <p>1. Any person under contract, or other legal obligation to represent or act tor another in a particular business, can not lawfully serve or acquire any private interest of his own in opposition to such business, during the continuance of the relations between them.</p> <p>2. Whether the taking of private pupils by a professor of music in a college is in competition therewith, is a question of fact for the jury.</p> <p>3. In an action brought to recover a balance due on account of salary, this court declines, in view of the evidence, to interfere with a verdict for the plaintiff.</p>

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

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

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

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

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

<p>Nuisance—Sewer—Municipal Corporation.</p> <p>In an action brought for the recovery of damages from a municipality, for injury suffered by reason of the stench arising from one of its sewers, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.</p>

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

<p>Master and Servant—School Teacher~Wrongful Discharge—Recovery of Wages—Other Employment—Evidence—Incompetency—Instructions.</p> <p>1. In an action brought by a discharged school teacher to recover a balance claimed to be due as salary, it is improper as a test of competency to require him upon cross-examination to answer questions propounded, or to show that after his employment a remonstrance was circulated in his district, and signed by divers persons.</p> <p>2. Evidence going to show that the plaintiff had miscalculated the amount due him, is not admissible as bearing upon the question of competency.</p> <p>3. The neglect or refusal of parents to send their children to a given school can not, of- itself, affect the right of its teacher to compensation in accordance with the terms of his contract.</p> <p>4. A certificate of qualification from a county superintendent is prima facie evidence of capacity to teach, and though it may be overcome by proof of incompetency, it can not be impeached, in an action brought by a teacher for salary due, nor will it be invalidated by the improper introduction of testimony going to show that for the certificate in question he was not in fact examined.</p> <p>5. There need be no second examination of a teacher, upon the granting of a renewal certificate, the original certificate issued to him upon examination having expired by statutory limitation.</p> <p>6. An instruction in such case imposing upon the plaintiff the burden of proving that he had tried and failed to get other employment, should not be given.</p> <p>7. Where other employment is obtained and wages amounting to as much as could be recovered under the first contract are earned, nominal damages may be recovered, in case of a breach upon the employer’s part.</p>

<p>Infancy—Wager—Deposit with Stake-holder—Notice not to Pay.</p> <p>1. A stake-holder of money bet upon a game or other matter of chance is regarded as the depositary of the respective parties, and is not affected by the illegal nature of their contract and he may pay over to the winner unless previously notified not to do so.</p> <p>2. While an infant may repudiate his action in making a bet and in depositing money with a stake-holder, he may not, after the result is known and after instructing the winner to take his money, recover it from the stake-holder after the same has been paid over.</p>

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