Volume 38 — Illinois Appellate Court Reports

<p>Appeal from the Oircuit Court of Cass County; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>Appeal from the County Court of Moultrie County; the Hon. H. M. Minor, Judge, presiding.</p>

<p>Garnishment—Money in Hands of Agent of Municipality.</p> <p>1. Counties are municipal corporations.</p> <p>2. Without a special law or contract requiring it, municipal corporations are not bound to seek their creditors.</p> <p>3. Moneys appropriated by them for payment of their obligations, and in the hands of their agents, do not belong to their creditors until paid over.</p> <p>4. A municipal corporation can not be garnished for the debt of a creditor thereof.</p>

<p>Appeal from the Circuit Court of Menard County; the Hon. G-. "W". Herdman, J udge, presiding.</p>

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

<p>Municipal Corporations—County Clerk—Receipts of—Balance Due— Recovery by County—Clerk Hire—Set-Off.</p> <p>1. In an action brought by a county to recover from its clerk money claimed to have been received by him to its use, the same having been spent by him in the employment of clerks in and about the business of his office, this court holds that such expenditure was warranted by the statute, and that the judgment allowing the same as a set-ofl to the claim in the case presented can not be complained of.</p> <p>2. While the clerk should have reported the receipt of the amount in question and his expenditure for clerk hire, and asked their allowance, the failure to do so did not work a forfeiture of his right to be reimbursed.</p>

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

<p>Schools—County Superintendent—Compensation of—Powers of County Boards.</p> <p>Section 20 of the school law as amended (the amendment in question having taken effect July 1, 1885) did not so amend section 27 of the act relating to fees and salaries as to give the county superintendents, then in office, compensation at the rate of $4 per day for the time actually spent, subsequent to July 1, 1885, regardless of the number of days designated by the county board for such services.</p>

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

<p>Municipal Corporations — Ordinances —Public Meetings — Salvation Army—Police Power.</p> <p>1. The settled rule of construction requires that effect to be given to every word in a penal statute which is used to describe the offense, if any can be given, reasonably and con.istenlly with the other language employed.</p> <p>2. Whether a meeting is a public meeting according to the common understanding, will depend upon its intended composition, and generally, if not essentially, upon its object. It must be open to the general public, and to make the opportunity general, some notice of the time and place, intended and adapted to reach the public generally, must be given, and it must have for its object the consideration or accomplishment of some subject or object which is of interest to the public.</p> <p>3. In an action based upon municipal ordinances touching gatherings upon streets, and their obstruction, the defendant therein being a member of the “ Salvation Army,” this court declines, in view of the evidence, to interfere with the verdict for the defendant.</p>

<p>Administration—Wills—Construction of—County Court—Jurisdiction of-</p> <p>1. A provision in a will setting forth that upon expiration of an estate for life in certain real estate it shall be sold, and its proceeds divided among persons named, carries no interest therein as land, but is a money bequest-</p> <p>2. The expectancy of such a bequest is a property right, which may be assigned or sold, and a quit-claim deed, given by such a legatee, though purporting to convey an interest in land, if intended by the parlies to be an assignment of such property right, will, in equity, 'operate as such.</p> <p>3. County courts in this State are superior couris of general jurisdiction with respect to all matters coming within the purview of their jurisdiction as given by law. As to the subject-matter it is limited to what is given by positive law; it can not derive jurisdiction as a court, either from a will or from a decree of any other court.</p> <p>4. In addition to matters of which it has jurisdiction by positive law, such court has equitable jurisdiction of the settlement of estates and the adjustment of the accounts of executors and administrators, and may adopt equitable forms of procedure.</p> <p>5. This court declines to interfere with an order directing that the dis~ tributive share of a person named, in a certain estate less costs and solicitors’ fees, be paid the grantee in a certain quit-claim deed based upon a valuable consideration, and professing to convey the interest of the grantor in the lands in question.</p>

<p>Banks—Deposit—Failure to Credit—Evidence—Instructions—Practice.</p> <p>1. While it is the province of the jury exclusively, in the first instance, to judge of the credibility of witnesses, their judgment should not be allowed to stand if it appears to be clearly unreasonable.</p> <p>2. The fact of the occurrence of errors in accounts is to be believed when proved in the usual manner unless the witness is discredited on some other and reasonable ground.</p> <p>3. Abstract improbability is not alone sufficient to discredit statements of even a single witness, although made upon a subject in which he has a personal interest.</p> <p>4. Errors in the instructions of the court below held to have been misleading as to the legal effect of evidence.</p>

<p>Appeal from the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.</p>

<p>Creditor's Bills.</p> <p>This court affirms the decree of the trial court on certain creditors’ bills to the end that the case may be considered as speedily as possible by the Supreme Court.</p>

<p>Landlord and Tenant—Recovery of Rent—Lease—Conditions,</p> <p>In an action brought for the recovery of rent this court construes the instrument, executed by the parties thereto, and declines in view of the evidence to interfere with the judgment for the plaintiffs.</p>

<p>Practice.</p> <p>It is improper, upon an appeal from a justice, for the court appealed to, to default appellant and render a judgment thereon, without a trial by jury or nny waiver thereof by him, his plea being on file.</p>

<p>Master and Servant—Recovery of Wages.</p> <p>1. A motion in an appellate court by an appealing defendant, in an action originally brought before a justice, that the plaintiff give security for costs on the ground that he has become a non-resident since the appeal, should not be allowed.</p> <p>2. There can be no recovery in an action brought upon a claim, before the same becomes due.</p>

<p>Warehousemen—Grain—Destruction by Fire—Sale—Bailment.</p> <p>1. Independent of the provisions of the constitution and statutes respecting public warehouses, it is competent for an owner of grain and a warehouseman to agree that the latter may mix said grain with other of the same grade, and hold for the owner, and at his risk, an equal amount of that grade with or without compensation, until it shall be called for by him, or the warehouseman shall take it as a purchaser, and the delivery under such arrangement will only be a bailment.</p> <p>2. In an action brought to recover the value of a lot of wheat destroyed by Are while in the hands of warehousemen, the plaintiff contending that the transaction was a sale and not a bailment, this court holds, in view of the refusal to give an instruction asked by the defendant touching the terms of the delivery, that the verdict for the plaintiff can not stand.</p>

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

<p>Sales—Self-binder—Recovery of Price of—Warranty—Breach—Evidence—Instructions.</p> <p>In an action brought to recover the purchase price of a self-bincler, this court declines, in view of the evidence, to interfere with the verdict for the defendant.</p>

<p>Sales—Live Stock—Written Contract—Construction—Itecouxyment.</p> <p>1. A contract of sale of certain cattle, providing that the same shall be fed on corn up to a certain date, carries with it the implication that after said date and before delivery, such care must be bestowed on them as a reasonably prudent man would bestow on his own property.</p> <p>2. In an action brought to recover upon a contract for the sale of certain steers, defendants contending that they were entitled to damages arising from the depreciation in value of some through the failure of the seller to properly feed the same, this court declines to interfere with the verdict for the plaintiff.</p> <p>3. A counter-claim arising out of the subject-matter of a given suit and susceptible of adjustment therein, is a proper subject for recoupment.</p>

<p>Insurance—Mutual Benefit Associations—Assessment—Bill to Enforce Jurisdiction—Practice—Evidence.</p> <p>1. If a defendant in an action in chancery chooses to answer after his plea is disallowed, and is defeated on the merits, he can not, on appeal, raise anew the question of jurisdiction of his person.</p> <p>2. Upon a bill filed to compel an assessment upon the members of a mutual benefit association to pay certain benefits on account of the death of a certificate holder, this court holds that the evidence fails to show that deceased was affected with pulmonary disease, or that he had any good reason to so believe when he was admitted to membership; that the physician’s certificate, stating that he had treated deceased for consumption during a period which reached back of his membership, is not. competent nor to be credited, in view of other evidence in the case, and that the contention that the decision of the board of directors of said organization rejecting said claim was a finality, can not be maintained.</p> <p>3. It- seems that the rule that when a demurrer to a plea in abatement as to the jurisdiction of a court over a defendant is sustained and the defendant required to answer over to the declaration he does not, by complying with such order of the court, waive the objection raised by the plea, is confined to practice at law, and is based upon considerations peculiar to pleas in abatement, and the effect of sustaining a demurrer thereto.</p>

<p>Exemptions—Schedule—Production of Property.</p> <p>1. A defendant in execution desirous of availing himself of the statutory exemption as to personal property, is required to have the property described in bis schedule present and within view of the appraisers appointed in conformity with the statute.</p> <p>2. The mere fact that when the schedule is presented by the defendant, the property, or a part of it, is not within the county, will not excuse the officer from appointing appraisers.</p>

<p>Drainage—Act of 1885, See. 45—Injury to Ditch by Cattle.</p> <p>Sec. 45 of the act of 1885, contemplates the right of the owner or occupant of land to pasture cattle therein without fencing an open ditch, part of a drainage system, subject to liability for injuries thereto, resulting ¿rom such use.</p>

<p>Mandamus—Obstruction in Street—Removal of—Dedication.</p> <p>Upon mandamus proceedings brought to compel a municipality to remove certain alleged obstructions from one of its streets, this court declines to interfere with the judgment for the defendants, interests of third persons being involved.</p>

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

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

<p>Sheriff—Fees—Recovery of.</p> <p>Upon a controversy between a sheriff and a county board touching claims alleged to be due him from said county, this court declines, in view of the evidence, to interfere with the judgment in his behalf.</p>

<p>Municipal Corporations—Streets—Raising Grade of—Damages to Adja~ cent-Property—Ordinances.</p> <p>1. In an action by a property owner to recover damages caused by a change of grade in the street abutting his property, the fact that the grade was fixed by an ordinance passed prior to the purchase of the property by plaintiff, and prior to the adoption of the present constitution, was no defense.</p> <p>2. In such an action, the plaintiff is entitled to recover the damages caused to the property, less the benefits conferred, from which benefits should be deducted the cost, to the owner, of the improvement.</p>

<p>Practice—Exceptions.</p> <p>1. When the bill of exceptions does not state that it contains all the evidence, the question whether the evidence supports the verdict can not be considered.</p> <p>2. Matters embraced in motion for new trial can not be here considered when no exception was taken to the action of the court in overruling that motion.</p>

<p>Evidence—Not Competent to Impeach Record.</p> <p>Where, by the record, it appears that a justice of the peace had jurisdiction of the person and subject-matter, parol evidence is not admissible to impeach the record of a judgment by showing that it was corrected by the justice two days after the judgment was rendered.</p>

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

<p>In ERROBto the Circuit Court of McLean County; the Hon. O. T. Eeeves, Judge, presiding.</p>

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

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

<p>Railroads—Excessive Freight Charge—Station Agent—Rejiresentations of as to Rates.</p> <p>In an action brought by a shipper of grain to recover excess of a freight charge over and above a rate alleged to have been agreed upon, it is 7ieZd;That upon the case presented the shipper had a right to rely upon the representations of a station agent as to rates, and that the company was bound thereby.</p>

<p>Municipal Corporations—Estoppel in Pais—When Applicable to Municipal Corporation.</p> <p>1. Municipal corporations, as respects the rights of the public to the use of streets and other public rights, are not within the ordinary limitation statutes, yet the doctrine of estoppel in pais may be applied to them.'</p> <p>2. An ordinance (illegally passed) disconnecting certain territory from a village, having been acted upon for a series of years, this court holds that the village, under the facts shown, was estopped from asserting jurisdiction over such territory.</p>

<p>Landlord and Tenant—Non-payment of Bent—Forfeiture of Lease Under Sec. 9, Landlord and Tenant Act.</p> <p>1. Where a statute prescribes one mode of action only", it is to be construed as in exclusion of all others; but it is competent for the Legislature to allow a choice between two or more modes of accomplishing the same end.</p> <p>2. A landlord may terminate a lease for non-payment of rent, by giving the notice prescribed in Sec. 9 of the Landlord and Tenant Act, as well as by pursuing the remedy prescribed in Sec. 8.</p>

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

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

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

<p>Landlord and Tenant—Farm Lease—Construction of—Distress for Rent—Statutory Remedy.</p> <p>Where a farm lease contained the clause that the rent should “ become due each year as the crop o£ each kind is matured and marketed,” the term “marketed” is not to be so construed as to deprive the lessor of his lien and right to distrain, and upon the case presented, whether the rent was technically due or not, the lessor had the right to proceed under Sec. 1 of the act of May 21, 1877.</p>

<p>Conspiracy—Trespass—Gist of the Action—Failure of Proof—Limitations.</p> <p>1. Conspiracy is an unlawful combination or agreement between two or more persons to do an act unlawful in itself, or a lawful act by unlawful means.</p> <p>2. If the conspiracy alleged in the declaration at bar is of force sufficient to connect the earlier wrongs charged to have been committed in pursuance of it, which as independent grounds of action are barred by the statute of limitations, with later ones not so barred, so as to prevent the application of the statute to the former, then the charge of conspiracy is of the gist of the action and must be proved.</p> <p>3. The evidence in the case at bar was wholly insufficient to establish the charge of conspiracy between the defendants.</p> <p>4. If it be conceded that conspiracy was not of the gist of the action, but that the action was simply for the several acts charged in the declaration, then the statute of limitations, which was pleaded, was a complete bar.</p> <p>5. In either view of the case there was no evidence sufficient to support a verdict for the plaintiff, and the instruction to the jury to find for the defendants was proper,</p>

<p>In error to the Circuit Court of Macon County] the Hon. J. F. Hughes, Judge, presiding.</p>

<p>Master and Servant—Personal Injuries—Statutory Regulations—Con. tributory Negligence—Pleading—Instructions.</p> <p>1. If the only operating cause of the injury received by plaintiff, in an action brought to recover for injuries received by him while being hoisted up the shaft of a mine in a cage, was his carrying a drill upon the cage, in violation of law, he can not recover.</p> <p>2. If, however, the mine owner has wilfully and negligently failed in his duty as charged in the declaration (such failure being in violation of the statute) and if the injury was caused chiefly by such failure, the owner would be liable even though the party injured may have been guilty of contributory negligence.</p> <p>3. Certain instructions are held, in the case presented, to have been erroneous, first, in ignoring the case presented by the declaration, and second, in containing contradictory and misleading statements.</p>

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

<p>Practice—Action'in Justice Court—Judgment for Defendant—Appeal— Substitution of New Plaintiff—Judgment for Plaintiff—Issue of Procedendo—Action on Appeal Bond.</p> <p>1. Where an action was brought in a justice court, in which affirmative judgment was rendered in favor of the defendant and against the plaintiff, from which judgment plaintiff appealed to the County Court, wherein a new party was added as co-plaintiff, and the suit then discontinued as to the original plaintiff, and a judgment rendered in favor of the new plaintiff and against the original defendant, Held: That the substitution of a new party as plaintiff by the County Court was error; that such judgment in favor of the substituted plaintiff must be regarded as the judgment in the original suit; that the issue of a procedendo by the County Court, in the case of” the original plaintiff against the defendant, was without jurisdiction and void, and that there was no breach of the condition of the appeal bond given by the original plaintiff, and no action thereon can be sustained.</p>

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

<p>* Replevin—Notes Held as Collateral— WhetherNotes Obtained by Fraud and Misrepresentation—Failure of Proof .</p> <p>In an action of replevin brought to recover certain notes by the payee of such notes against the agent in possession, of a^party to whom such payee had. delivered the notes as collateral, held: That, there was a failure of proof to show that said notes had been procured by fraud or misrepresentation, or that there had been a breach of a condition upon which they had been delivered.</p>

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

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

<p>Appeal from the Circuit Court of Cass County; the lion. Lyman Lacey, Judge, presiding.</p>

<p>Wills—Whether Legacy a Charge on Beal Estate.</p> <p>' 1. Where a person dies leaving a will, and real and personal property, his debts and pecuniary legacies are to be paid from the personal estatei and in case of a deficiency of personal estate, the pecuniary legacies abale unless the real estate is charged with their payment.</p> <p>2. Under the will in the case at bar, the legacies in question were not charged upon the real estate, and there being a deficiency of personal estate, they abated.</p>

<p>Actions—Money Had and Rectived—Weight of Evidence.</p> <p>In an action for money had and received, where the trial was by the court, it is held: That the evidence fully supported the judgment for plaintiff.</p>

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

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

<p>Trust Deed—Error in Description—Sale of Premises Supposed to Have Been Incumbered—Consideration—Notice—Bill for Belief by Mortgagee.</p> <p>Where a trust deed erroneously described a tract of land not owned by the grantor, and the land intended to be described was subsequently sold by the owner and resold by his vendee, upon a bill filed by the mortgagee for relief, held: That the evidence failed to show such gross inadequacy of consideration in the sale by the mortgagor, as would authorize a court to grant relief on that ground, and that the evidence failed to prove notice on the part of defendants, of complainant’s equities.</p>

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

<p>Appeal from the County Court of Macoupin County; the Hon. T. P. Peebles, Judge, presiding.</p>

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

<p>Mandamus—Duties of Board of Toivn Auditors—Pouters of Town and of Board—Judgment against Rigluvay Commissioners—Reimbursement.</p> <p>1. Mandamus will not lie to compel a board of town auditors to audit and allow a claim of.commissioners of highways for reimbursement, because of a judgment secured against them for illegally digging a ditch by the side of the highway, to the damage of an adjoining property owner.</p> <p>2. A vote of the town attempting to make the amount of such judgment a charge against the town was ultra vires and of no effect.</p>

<p>Practice—Partition Proceeding—Order of Pe-sale.</p> <p>An order of re-sale in a partition proceeding, at the risk of "the original purchaser,who has failed to comply with the terms of the sale, is void,where no notice has been given to such purchaser to show cause why it should not be made.</p>

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

<p>Roads and Bridges—Action to Recover Penalty for Saturating Public Road—Construction of Statute—Current of Water, What is—Road and Bridge Act, Sec. 11.</p> <p>1. Appellee collected the water which was accustomed to flow over a wide surface of land, and brought the same by tile drainage to a point where it discharged and saturated a road; it is held: That this was “ turning a current of water so as to saturate or wash ” a public road within the meaning of Sec. 71 of the Road and Bridge Act.</p>

<p>Warehousemen—Trading in Property of Depositors—Liability in Case of Loss by Fire.</p> <p>1. Warehousemen can not lawfully trade in property of depositors, without their consent.</p> <p>2. Where they do so trade with part of grain deposited, they authorize the original owners to treat the entire lot delivered, as sold to the warehousemen, and, in case of its destruction by fire, are liable for the full amount, and not merely for the shortage.</p>

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

<p>Appeal from the Circuit Court of Jersey County; the lion. George W. IIerdman, Judge, presiding.</p>

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

<p>Limitations—Statute of, Sec. 11—Set-off by Plaintiff of Barred Claim against Defendant's Set-off.</p> <p>Where an action is brought upon an account, part of which is barred by the Statute of Limitations, and the defendant sets off under Sec. 17 a claim which is barred, the plaintiff may, as against such set-off of defendant, set off the barred items of his account.</p>

<p>Former Adjudication—Equity Pleading.</p> <p>Upon the case presented, it is held: That whether or not a former decree in the case at bar was, as a matter of fact, entered by consent, was not presented upon a former hearing here on writ of error; that that question was not rendered res adjudicata by the former decision of this court, and that, while the alleged fact that the decree formerly brought to this court by writ of error was a consent decree, might have been properly presented by a plea of release of errors, yet the failure to so plead does not preclude the relief now sought by a supplemental cross-bill.</p>

<p>Negotiable Instruments—Note—Alteration of—Restoration to Original Form—Foidenee.</p> <p>Upon the case presented, this court holds that the court below erred in excluding fromthe evidence the note sued on, and that the judgment must therefore be reversed.</p>

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

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

<p>Sheriffs—Action against for Levying on Goods—Stipulation to Waive a Jury, Whether Authorized by Defendants in Interest—Levy of Attachment, What Necessary to Constitute•—Whether Plaintiff-Purchased Goods in Good Faith—Notice of Attachment.</p> <p>1. Where an action was brought against a sheriff for levying an attachment writ on certain goods, claimed by the plaintiff, and selling the same, and a stipulation was entered into waiving a jury, and submitting the case to the court on the record of a former trial, and subsequently the real defendants, being the plaintiffs in the attachment suit prior to the trial petitioned the court for a jury trial, alleging that they had not authorized the stipulation, but that it was authorized by the nominal defendant, held; That as it did not appear but that the attorneys who signed the stipulation were authorized to appear for the petitioners, the petition was properly refused.</p> <p>2. An officer making a levy must so deal with the property, in order to make a good levy, as would, without the protection of the writ, render him a trespasser.</p> <p>3. If a purchaser takes goods in good faith, in payment of an honest debt, his title is not affected by the fact that he may know of suspicions actions on the part of vendors, or that attachment proceedings are threatened, or a writ issued, unless a levy has been made.</p> <p>4. Knowledge of the fraudulent intent of the grantor to defraud other creditors carried home to the grantee, will not avoid a sale if the grantee in taking the property is actuated by a desire, in good faith, to receive payment of an honest debt.</p>

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

<p>Municipal Corporations—Prosecutions before Justice of the Peace by City—When City Liable for Costs.</p> <p>Where a city institutes and proseen! esto judgment before a justice of the peace, suits for the violation of municipal ordinances, and fines are imposed and judgments rendered for the same and costs, and executions are issued, under which the defendants, they being without property, are committed to the city prison and the fines worked out under the provisions of the municipal ordinances, the city is not liable to the justice in an action of assumpsit for money had and received for his costs which were included in such judgments, and which were discharged by labor for the city.</p>

<p>In eeeoe to and appealed from the Circuit Court of Macoupin County; the Hon. J. J. Phillips, Judge, presiding.</p>

<p>lit error to and appealed from the Circuit Court of Macoupin County; the Hon. J. J. Phillips, Judge, presiding.</p>

<p>Fraudulent Conveyances—BUI to Subject Real Estate or its Proceeds to Payment of Judgment—Whether Findings of Decree Supported by Allegations of Bill.</p> <p>Where, in a bill seeking to set aside a conveyance as colorable and intended to hinder creditors, there is no allegation of insolvency against the grantor, it is not material to consider the question whether the finding that the grantor was insolvent is supported by the evidence, but a conveyance made with the direct purpose to defraud creditors, may be attacked without charging insolvency as the result of such conveyance.</p>

<p>Highways—Pleading—Overruling of Demurrer—Pleas not Necessarily to he Taken as Confessed—Action on Case—General Issue—Itighthy Prescription—Acquiescence—Damage to Private Owner from Improvement of Highicay—Right to Compensation—When Em'dence as to Damages Subsequent to Commencement of Suit Inadmissible.</p> <p>1. Where demurrer to pleas is overruled and the case goes to trial, the pleas demurred to are not to be taken as confessed, the defendants, upon the overruling of the demurrer, not having asked for a rule upon plaintiff to reply, or for judgment for want of replication.-</p> <p>2. In an action on the case, under the general issue, the plaintiff is put upon proof of the whole charge in the declaration, so far as necessary to make out a cause of action, and the defendant may show any matter in discharge or excuse.</p> <p>3. Where a right by prescription is alleged as defense, the acquiescence of the plaintiff is an essential element necessary to be established by the defendant, mere knowledge not being sufficient, and evidence tending to prove non-acquiescence is competent.</p> <p>4. In an action brought by the owner of land adjacent to the highway against the commissioners and overseer of highways for unlawfully and negligently cutting a ditch along the highway, thereby diverting water from its natural course and overflowing plaintiff’s land, the fact, if true, that the action of defendants was in good faith and necessary to the proper construction of the road, does not constitute a defense.</p> <p>5. Where, in such action, the structure complained of was negligently constructed, without lawful authority, it may be regarded as a nuisance, and fresh actions may be brought as often as injury is done; hence, evidence as to damages subsequent to the commencement of the suit is inadmissible.</p>

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

<p>Slander—Charge qf Unchastity.</p> <p>Upon the ease presented, (bis court holds that the jury was properly instructed and the verdict for the plaintiff was supported hy the evidence.</p>

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

<p>Municipal Corporations—■Ordinances—-Violation of—Power of City Council to Release from Payment of Fine.</p> <p>A city council has power to release a defendant from a flue for violation of a city ordinance, such action being taken by the council while defendant has a right of appeal remaining to him from the judgment imposing the fine.</p>

<p>Insurance—Mutual Benefit Associations—Alleged Misrepresentation in Application as Defense—Instructions—Weight of Evidence—When Representations in Application to he Considered as Taking Effect.</p> <p>1. The evidence presented in the case at bar was sufficient to justify the finding of the jury that the statements made in the application, upon which was issued the certificate sued on, were neither false nor fraudulent.</p> <p>2. The application was made on April 3d, and the certificate issued April 12th, and delivered to the beneficiary on April 17th: Held, That it is unnecessary to determine as of what day the trulh of the statements in the application are to be tested, the answer having set up the defense that they were false when made, on April 3d, and the issues, framed by the court without objection, also referring to that date.</p>

<p>Negotiable Instruments—Notes—^Secured by Chattel Mortgage—Eights of Indorsee—Usury—Bill in Equity—Injunction—Amendment of Bill.</p> <p>1. Where a bill in equity set up the execution of usurious paper by the complainants, and that the same had been transferred by the payees for fhe purpose of preventing the defense of usury, and that the assignee had seized the mortgaged property and was about to sell it, and where an injunction had been-issued restraining the sale, heldi That it was competent for the court to allow an amendment to the bill without prejudice to the injunction, striking out the charge, as against the assignee of the paper, that he had purchased it fraudulently and without consideration.</p> <p>2. A party who purchases negotiable paper, secured by a chattel mortgage, before maturity and for a valuable consideration, is, while attempting to collect the debt under the mortgage, and, as regards the enforcement of the mortgage, in no better position than the payees.</p>

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

<p>Sales—Stoelc of Goods—T)eafh of Vendor—Application of Part of Proceeds to Payment of Judgment against Vendor—Administrator de son tort.</p> <p>1. Where a stock of goods was sold by agents acting under a power of attorney from the owner, and subsequent to the death of the owner a part of the proceeds was applied to the payment of a, judgment against deceased, it is held; That there was sufficient competent evidence to show that such payment was made in pursuance of an understanding with deceased in his lifetime, and that the administrator could not recover the amount so paid from the purchaser of the stock.</p> <p>2. If the money in question was paid to the administrator, who was also one of deceased’s attorneys, before his appointment as administrator, and by him applied to payment of the judgment, the payment would bind the estate, it not appearing that the estate is insolvent.</p> <p>3. Whatever is honestly done by one acting as administrator de son tort, and not contrary to law, is binding between the parties.</p>

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

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

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

<p>Fraudulent Sales—Collaterals by Cashier of Bank at Private Sale— Director.</p> <p>Where bonds, which had been deposited with a bank as collateral, were sold by the cashier at private sale to a director of the bank, who was also surety for the debt to secure which the bonds had been hypothecated, for a sum clearly less than their value, held: That the sale was fraudulent and void.</p>

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

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

<p>Creditors' Bills—Sufficiency of Evidence to Establish Fraud.</p> <p>The decree of the court below, dismissing a creditor’s bill charging fraud, affirmed, the sole question being as to the sufficiency of the evidence to sustain the charges of the bill.</p>

<p>Municipal Corporations—Negligence—Personal Injuries—Practice— Bill of Exceptions—Presumption in Eavor of Action of Court Beloio— Evidence.</p> <p>1. Where there is no bill of exceptions showing the action of the court below to have been wrong, everything is to be presumed in favor of the action of that court.</p> <p>2. In an action against a city to recover for an injury received by a fall from a sidewalk, where the negligence complained of was the failure to put a guard rail by the side of the walk, evidence that on other nights than that on which the injury was received, plaintiff went over the wal'k without difficulty or danger, was proper.</p>

<p>Appeal from the County Court of Peoria County; the Hon. Lawrence W. James, Judge, presiding.</p>

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

<p>Divorce—Crue Ity.</p> <p>This court holds as erroneous the verdict for the defendant, the refusal to set the same aside, and the dismissal of complainant’s bill praying for a divorce upon the ground of extreme and repeated cruelty.</p>

<p>Municipal Corpo?-afions—Negligence of—Defective Sidetvallc—Personal Injuries—Evidence—Instructions—Sec. 5, Chap. 51, B. S.—Practice.</p> <p>1. The verdict of a jury will not be set aside where the evidence is conflicting, even though it may seem to be against the weight of the evidence, unless it is apparent that they have been actuated by passion or prejudice.</p> <p>2. Complaint should not be made of the refusal of instructions, where others containing the principle involved in them were given.</p> <p>3. The right of action for personal injuries to a wife is property; she alone must sue for the recovery of damages for such injuries, and her husband can not,without her consent, release them; and in such action the husband is a competent witness for his wife.</p>

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

<p>Nuisances—Obstruction of Alley — Practice — Supplemental Bill-Abatement.</p> <p>1. The propriety of filingr a supplemental bill can not be primarily raised herein, where the defendant in the trial court treated it as a proper proceeding, and answered the same on its merits, and went to trial.</p> <p>2. This court holds as erroneous the dismissal of the supplemental bill in the case presented, the same charging defendant with maintaining a nuisance in permitting an outhouse to remain in a certain alley, abatement thereof being requested.</p>

In ebbob to the Circuit Court of La Salle County; the Hon. Chables Blanghaed, Judge, presiding. This is in haeo verba, the language used in the Licbmon case, and the court in this decision refers to it as well as to one in 42 Illinois.

<p>Fraudulent Sales—Replevin—Evidence.</p> <p>1. Whether a given sale was bona fide and upon a valid and fair consideration or whether fraudulent and without sufficient, consideration and intended to hinder and delay creditors, is a question of fact for the jury.</p> <p>2. The burden of showing fraud is always upon him who charges it. Honesty and good faith are presumed to govern in business transactions until they are overturned by proof.</p> <p>3. A debtor may sell all his goods to pay his debts and a bona fide creditor taking them in discharge of his debt for. a fair consideration will hold the goods notwithstanding other creditors may lose their entire debt,</p>

<p>Attorney and Client—Probate Judge—Right to Act as Attorney—Evidence—Sec. 10, Chap. 13, R. S. '</p> <p>1. It is the duty of a probate judge to keep himself free from any and all interest in any estate in process of settlement in his court, which might influence or warp his judgment in the slightest degree.</p> <p>2. A county or probate judge in this State may try cases in other courts than his own, when such cases have no con nection with the business or causes pending in their own courts.</p> <p>2. In an action to recover a certain sum alleged by plaintiff to have been paid defendant when judge of probate, to be used by him, or so much thereof as might be necessary, to settle a law suit, the balance, if any, to be returned, it being claimed that no part thereof-had been used or returned, this court holds, defendant contending that said amount was paid him as attorney’s fees for procuring a settlement of said suit, that the evidence supports the theory of the plaintiff; that the rule that when two or more persons engage in an unlawful enterprise or agree to do an illegal act or one prohibited by public policy, and spend or pay out money to each other or otherwise in aid of such unlawful enterprise, the law will aid neither but leave them where they placed themselves, can not be invoked in the case presented; that assuming that said payment was made to defendant as plaintiff’s attorney, the parties were not in pari delirio in the employment of the one by the other, nor in the payment to the one, and the receipt by the other, of the sum in question; and that the judgment for the plaintiff must be affirmed.</p>

<p>Dirorce—Permanent Alimony—Reduction of—Solicitor’s Fees—Death of Child—Evidence—Practice.</p> <p>1. An appellate court will not, ordinarily, interfere when alimony dente lite is allowed, or reverse a decree for permanent alimony.</p> <p>2. In the case presented, this court holds, in view of the evidence, that a decree providing for the payment of permanent alimony for the support of the defendant and her child, should not be so modified as to reduce the amount thereof, in view of the death of the child, and that she should be allowed a reasonable sum for solicitor’s fees in resisting the application for such reduction.</p>

<p>Railroads—Bridges— Flowage—Damage by— Evidence — Pleading — Practice. v</p> <p>1. Railroad companies are only bound to build and maintain such bridges and other structures as ordinary and reasonable men can foresee shall be necessary to meet the ordinary contingencies and demands of nature.</p> <p>2. A verdict which is not fairly supported by the evidence should be set aside.</p> <p>3. Without previous notice of the defective character of a railroad bridge, or request to make changes therein, a company purchasing the road after the building thereof is not liable in damages to a landowner injured through flowage of his property caused by the manner in which such bridge was constructed.</p> <p>4. An agreement entered into between the plaintiff and defendant in a given suit, that the same shall be dismissed in case defendant does a certain thing, obligates the plaintiff upon such performance to so dismiss, and the amendment of his declaration, whereby he seeks to bring into the case new grounds of recovery, can not avail him.</p> <p>5. A party may plead as many pleas and set up as many defenses as he likes, although some of them may be inconsistent with others.</p> <p>6. Objections to pleadings can not be primarily made herein.</p>

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

<p>Municipal Corporations—Negligence of—Personal Injuries—Defective Sidewalk—Notice—Evidence—Instructions—Practice.</p> <p>1. It is always the province of the court to instruct what facts would, as a matter of law, constitute negligence, and leave it to the jury to determine whether the necessary facts have been established.</p> <p>2. In view of the evidence, this court affirms the judgment for the plaintiff in an action to recover from a municipality for personal injuries suffered by reason of a defective sidewalk.</p>

<p>Railroads—Negligence of—Personal Injuries—Crossings—Ordinance— Evidence—Instructions—Remittitur—New Trial.</p> <p>1. In a suit based upon personal injuries occurring through the negligence of the defendant in a given case, to entitle the plaintiff to recover he must be shown to have been, upon the occasion in question, in the exercise of ordinary care.</p> <p>2. An instruction in such case purporting to state the requisites to a recovery by the plaintiff and omitting that of ordinary care, is erroneous.</p> <p>3. A person riding with another but not driving, is as much bound to exercise such care' as the person driving.</p> <p>4. In a case close in its facts, all instructions should state the law correctly.</p> <p>5. In an action brought to recover from a railroad company for personal injuries alleged to have been sustained through its negligence, this court holds that the verdict for the plaintiff was against the weight of the evidence; that the court erred in giving a certain instruction for the plaintiff, and that for these reasons the judgment in his favor can not stand.</p>

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

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

<p>In error to the Circuit Court of Woodford County; the Hon. ÍT. W. Gbebn, Judge, presiding.</p>

<p>Sales—Breach of Warranty—Renetcal of Rote (riven for Purchase Money—When not a Waiver of Breach of Warranty.</p> <p>Where property is sold with a warranty, and the purchaser gives a note for the purchase money, the.reuewal of such note by the purchaser after he has discovered that there has been a breach of the warranty, does not operate to release his claim against the vendor for such breach.</p>

<p>Fraud—Judgment—Action on—Settlement of—Duress.</p> <p>In an action brought upon a judgment before a justice, where the defense was (hat the judgment sued on had been settled, it is held: That there was evidence to sustain the finding of the jury that the alleged settlement was fraudulent and void.</p>

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

<p>Landlord and Tenant—Recovery of Rent—Practice—Evidence.</p> <p>In an action for rent, trial being by the court without a jury, where the judgment was clearly what was required by the proper evidence in the case, the error of the trial court in admitting other evidence is no ground for reversal.</p>

<p>Negotiable Instruments—Note—Action on Set-off—Limitation as to Recovery—Interest.</p> <p>1. In an action upon a note where the defense was in the nature of a set-off for legal services rendered, this court holds that the jury are limited in the amount they are entitled to find as the value of such services to the amount claimed by defendant, although witnesses testified that the services in question were worth more than was claimed by defendant.</p> <p>2. Defendant is not entitled, in tire case presented, to interest on his claim for services, on the ground that he understood the credit was to be indorsed on the note, it not appearing that the agreement to allow interest was understood by both parties,</p>

<p>Master and Servant—Negligence of Master—Personal Injuries—Contributor}/ Negligence—Province of the Jury—Effect of Order of Defendant's Foreman to Plaintiff to Enter Dangerous Place—Instructions.</p> <p>1. Where a servant enters a place of known danger, the dangerous nature of the place being the result of the defendant’s method of conducting its business, under the positive command of a foreman, possessing the power to discharge him in case of disobedience, and is injured in such dangerous place, such command of his foreman does not, as matter of law, relieve the plaintiff from the duty of exercising due care on his part; but such command is a circumstance to be considered by the jury in determining the ultimate fact, whether or not, at the time plaintiff received the injury complained of, he was in the exercise of due care.</p> <p>2. If the apparent danger was so great that a reasonably prudent and careful man would not have continued in the employment, even after receiving the order in question, then the plaintiff assumed the risk and is not entitled to recover.</p> <p>3. The legal effect of the order was to relieve the plaintiff from taking his own risk of dangers, which he absolutely assumed without the order by continuing in a dangerous employment, knowing it to be dangerous, but it did not relieve him from the exercise of due care under all the circumstances of the case.</p>

<p>Negotiable Instruments—Note—Principal and Surety—Practice— Variance—Pleading—Proceeds of Sale of Mortgaged Property—Amount to be Credited.</p> <p>1. Where demurrer to a declaration is overruled, and the defendant pleads over to the declaration, any exception to the overruling of the demurrer is waived.</p> <p>2. A question of variance can not be first raised in the Appellate Court.</p> <p>3. Where a special count in the declaration set out an alleged partnership and that the notes sued on were for a partnership debt and the defendants plead the general issue, the partnership and the consideration of the alleged obligation stands admitted.</p> <p>4. A bank in which appellant was a partner, was indebted to an estate for a sum necessary to the settlement (hereof. Anote signed by (he bank and by the individual partners was given for the debt. The administrator borrowed the necessary money from a third party, and, as part of the collateral, a note, secured by mortgage, due from appellant to another of the partners in the bank, was pledged. This debt not being paid at maturity, the pledgee foreclosed. The property was struck oB at master’s" sale, by direction of attorneys, to the pledgee, who, on learning this fact, repudiated the purchase. ■ Subsequently, the partner originally owning appellant's indebtedness, agreed with the pledgee and with the administrator that the amount at which the property was struck ofE should be credited to appellant on his personal note; that the sale should stand, but that only the amount at which the property could be resold, should be credited on the loan to the administrator and the indebtedness of the bank, it is held: In an action brought by the administrator upon the note given by the bank and the partners therein, that appellant was not entitled to have the full amount for which the property was sold at master’s sale credited on the bank indebtedness, for which he was liable, but only the amount actually realized from the second sale, it appearing that there was no fraud in the transaction.</p>

<p>Guardian and Ward—Citation to Guardian to Account—Evidence.</p> <p>Judgment of court below is reversed because of an erroneous allowance of an item for rent in the statement of an account.</p>

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

<p>Appeal from the Circuit Court of Kankakee County; the Hori. if. J. Pilsbury, Judge, presiding.</p>

<p>Partnerships—Power of General Partntrs to Bind Silent Partner in Outside Enterprise.</p> <p>Where a firm is composed of several general and one silent partner, and the general partners enter upon a new enterprise under a different firm name, to which the silent partner gives his consent, but distinctly declines to assume any liability therein, such general partners, or the new firm, can not bind the old firm or the silent partner for debts contracted in the prosecution of the new enterprise, especially where the creditor has acted with full knowledge of all the facts.</p>

<p>Mortgages—Foreclosure—Judgment Creditor Made Defendant—Homestead,— Oath of Commissioners Administered by Notary—Affirmative Relief not Granted without Cross-bill.</p> <p>1. Where a bill was filed to foreclose a trust deed and it appeared upon hearing that the lien of a judgment creditor (who had been made defendant) was superior to that of the mortgagee to the extent of part of the mortgage indebtedness, it was proper for the court, under the circumstances presented, to enter a decree providing that out of the proceeds of the sale the judgment debt should be paid, regard being had to the priority of the several portions of the indebtedness, although such judgment creditor had not. filed a cross-bill. So far as the relief granted to the judgment creditor was affirmative, it was merely incidental to the relief granted to the complainant.</p> <p>2. The oath of office may be administered to commissioners selected to set oS a homestead by a notary public.</p>

<p>Fraud—Decree in Chancery Entered by Consent—Petition by Heirs of One Party to Open—Decree Overruled—Bill of Review.</p> <p>Where It is claimed that the consent of the complainant to the entry of a decree dismissing her bill was obtained by fraud, such complainant being a person non compos mentis, the remedy which the heirs of such complainant have, if any, is by bill of review, or by bill in the nature of a bill of review, and not by a petition to vacate the decree and substitute the petitioners as complainants in the original proceeding.</p>

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

<p>Insolvency—Fraudulent Sale—IJen of Judgment Creditors—Assignment—Right of Vendor of Goods, Delivered by Mistake Prior to Time Fixed by Terms of Sale, to Reclaim from Assignee—Exemptions.</p> <p>1. Upon the case presented, this court holds that creditors of an insolvent debtor, claiming under judgments, and under a fraudulent sale, were neither of them entitled to priority but should stand on an equal footing with other creditors under a general assignment.</p> <p>2. Executions issued on judgments taken upon judgment notes, held to have given the execution creditors no prior lien over other creditors, the notes having been secured under promise not to enter judgment thereon until the maluriiy of the notes, the creditors also knowing at the time of securing them that the debtor was insolvent.</p> <p>3. Where a bill of goods was sold for future delivery, but by mistake of the vendors was shipped at once, but the vendee refused to receive them, except to store them at vendor’s risk, and notified vendor to take them away, which vendor was intending to do when they passed into the assignee’s hands, held, the goods not having been mingled with other goods of the insolvent, that the vendors were entitled to the proceeds of the sale of such goods from the assignee.</p> <p>4. Costs were not properly chargeable against the proceeds arising from the sale of such goods, nor against the debtor’s exemptions claimed by him in his deed of assignment.</p>

<p>Appeal from the Circuit Court of Bock Island County; the lion. Arthur A. Smith, Judge, presiding.</p>

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

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

<p>Municipal Corporations—Streets—Dedication of—Faifure to Acknowledge Plat—Evidence.</p> <p>1. Where a tract of land was subdivided and a proper plat made and recorded and the streets -so indicated were accepted by the city as public streets and part of them worked for years, the failure of the parties to acknowledge the plat was immaterial so far as the dedication of the streets was concerned. In an action by the city for obstructing one of such streets it is unimportant whether the dedication was statutory or common law.</p> <p>2. The city was not hound to open and work all the streets in the subdivision at once in order to maintain their public character.</p>

<p>Libel—Words not Libelous—Demurrer Sustained.</p> <p>Where, in a declaration in an action for libel, the supposed actionable words charged were the calling of the plaintiff “a little insignificant puppy,” and that, in a certain contingency, he would “lie,” it is held: As the declaration contained no inuendo and no allegations of special damages, that the demurrer to the declaration was properly sustained.</p>

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

<p>Contracts—Action for Hydrant Rental—Filtering Process—Whether Accoi-ding to Contract.</p> <p>In an action brought to recover hydrant rental for one quarter where the defense was, as to a part of the claim, that plaintiff had not furnished properly filtered water, in accordance with its contract, for a portion of the period for which rent was claimed, it is held: That the evidence failed to show that plaintiff had not complied with the contract.</p>

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

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

<p>Attorney and Client—Settlement behveen, Conclusive on Attorney—• Can Not Subsequently Add Charges for Services Rendered Prior to Settle ment.</p> <p>This court holds a settlement made between an attorney and his client, for whom he had been making collections, to have been conclusive on the attorney as to his charges, and that, it being discovered subsequently that he had made a collection not included in his report, he could only make an additional charge for that particular collection and at the same rate charged in the settlement.</p>

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

<p>WiVs—Sill to Test "Validity of—Enabling Statute—Statute Affecting Act of Limitations Does Hot Apffly to.</p> <p>Sec. 7, Chap. 148, R. S., providing for the exhibiting of a bill in chancery to test the validity of a will within three years after probate of the will, is not a statute of limitations but an enabling statute, without which no such bill could be filed. Therefore, Sec. 25, Chap. 88, R. S., concerning general limitations, providing that where a plaintiff has been non-suited (and in certain other contingencies), and if the time for bringing his action has expired during the pendency of his suit, then he shall have one year from the time of such non-suit, etc., in which to commence an action, does not apply to actions commenced to test the validity of a will.</p>

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

<p>Evidence—Heading Testimony from Bill of Exceptions—Instructions •—Wife of Party as Witness—Agency of Wife.</p> <p>1. It is error for a court to permit an attorney to read from the bill of exceptions, over the objection of the opposing party, testimony of a witness given upon a former trial.</p> <p>2. For an instruction to single out unimportant items of testimony and call the attention of the jury thereto, is improper.</p> <p>3. Where property is placed in the charge of a wife during her bus-band’s absence, with instructions as to what she shall do therewith, this constitutes a “ business transaction ” and an •’ agency v within flip meaning of the statute, providing that in such case the wife is a competent witness for the husband.</p>

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

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

<p>Landlord and Tenant—Distress for Retit—Deprivation of Use of Part of Demised. Premises—Evidence—Instructions.</p> <p>1. Where the question was whether a house and barn were situate upon a piece of land described in a lease as “ about half an acre apple orchard” and reserved fr.om the leased property, evidence was admissible on the part of the tenant of a conversation between a witness and the lessor in his lifetime, the action being brought by an administrator, tending to show that the lessor regarded”the house in question as not being in the reserved tract.</p> <p>2. An instruction to the jury that the above conversation was proper for them to consider in determining whether or not the tenant was entitled to the use of the house and barn in question under the lease, was proper.</p>

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