39 Ill. App.

Volume 39 — Illinois Appellate Court Reports

142 opinions

39 Ill. App. 17Hossack v. Moody (1890)
Negotiable Instruments—Note—Payment—Instrument Comprising both Receipt and Contract—Parol Evidence- A written instrument may be both a receipt and a contract, in which case that portion operative as a receipt may be contradicted or explained like any other receipt.
39 Ill. App. 21Yaeger v. City of Henry (1890)
Jurisdiction—Absence of Bill of Exceptions—Presumptions in Faror of Judgment. 1. Where a party appears and submits himself to the jurisdiction of the court it is of no importance whether the summons was void or not, or whether in fact there was any process at all. 2. In the absence of a bill of exceptions an. appellate court will presume that every fact necessary to bring the case within the jurisdiction of the court and establish a cause of action was proven on the trial.
39 Ill. App. 23International Bank of Chicago v. Vankirk (1890)
Gambling Transaction—Paper Tainted Thereby Void—Benewal and Transfer Immaterial. Under the laws of this State all manner of gambling obligations are void in the hands of everybody, and such obligations can never be made valid by any renewals or transfers to innocent purchasers. Therefore a trust deed, given to secure a note given in payment of a gambling debt, though once renewed, and transferred to the hands of an innocent purchaser, is void.
39 Ill. App. 31Common v. People (1890)
Appeal from the Circuit Court of Iroquois County; the Hon. Alfbbd Sample, Judge, presiding.
39 Ill. App. 34Crohen v. Ewers (1890)
Highways—Action to Recover for Discharging Water on Plaintiff's Land—-Superior and Servient Estate—Damage—Instructions—Costs of Amended Abstract—Evidence. 1. In any action brought against highway commissioners, in their individua] capacities, to recover damages alleged to have been sustained by plaintiff through the drainage of water upon his land, it is held: That the evidence failed to show that plaintiff had suffered any appreciable damage from the acts complained of; that plaintiff’s land was servient to that from which the water was drained, and that in a state of nature the water flowed in the same direction as it did after the acts complained of were committed. 2. It was competent in the case presented, for qualified witnesses to give their opinion as to whether the plaintiff’s land was damaged by ike acts complained of.
39 Ill. App. 43Burlington Insurance v. Brockway (1890)
Fire Insurance—Policy—Interpretation of Forfeiture Clause—Vacancy. In an action upon an insurance policy upon a building “ while occupied by assured as a country store and dwelling,” which policy contained a clause providing for a forfeiture in case the building became vacant and unoccupied for more than ten days without notice to the company, etc., it is held: That the forfeiture did not attach when the building ceased to be occupied as a dwelling, but only in case it was not occupied at all.
39 Ill. App. 47Brotherhood of Railroad Brakemen v. Knowles (1890)
Appeal from the Circuit Court of Knox County; the lion. Arthur A. Smith, Judge, presiding.
39 Ill. App. 50Blain v. Desrosiers (1890)
Partnerships—Bill of Particulars—Evidence. In an action of assumpsit brought to recover money alleged to have been loaned, where the defense claimed that the matters in controversy were part o£ a partnership transaction, it is held: That the issues were properly submitted to a jury and that the evidence sustained the verdict for the plaintiff.
39 Ill. App. 53Chase v. Nelson (1890)
Appeal from the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding.
39 Ill. App. 60Wilmerton v. Sample (1890)
Malicious Prosecution—Instructions—Erroneous Assumptions in—Prolixity and Argumentative Character of-—Evidence—Introduction of Record to Show Plaintiff’s Acquittal. 1. Although instructions contain correct propositions of law, yet where such propositions are repeated' so often and in so many different forms by the court as to assume the character of an argument from the court, such instructions are open to serious criticism. 2. In an action for malicious prosecution, where the plaintiff had been arrested for malicious mischief, an instruction that a person who is in possession of property, claiming to be the owner of it, can not be guilty of malicious mischief in destroying the same, nor of larceny in regard to tlie same, is erroneous in that it ignores the question whether the claim of ownership is made in good faith. 3. Instructions in the case at bar held to have been erroneous, in that they assumed the existence of material facts which were in dispute and were based upon hypotheses which were unsupported by any evidence. 4. Whether it was error to admit in evidence the record of the trial and acquittal of plaintiff on the indictment for malicious mischief, quiere.
39 Ill. App. 69Illinois Central Railroad v. Slater (1890)
Railroads—Negligence of—Personal Injuries—Action by Administrator for Causing Death of Intestate—Two Brothers Killed in Same Accident—Recovery in Action for Death of One no Bar to Recovery for Death of Other. Where two minor brothers"were both killed in the same accident, through the alleged negligence of defendant, a recovery in an action brought to recover damages for the death of one constitutes no bar to a recovery in another suit for the death of the other, although the administrator of both estates was the same person, and the heirs for whom he sued were the same in each case.
39 Ill. App. 85Allison v. Maley (1890)
Jurisdiction—Bill in Equity—Remedy at Law—Discretionary Power to Dismiss Bill on Court's Own Motion. The power possessed by a court of equity to dismiss a bill on its own motion,- for'want of jurisdiction, on the ground thatthe parties have a complete remedy at law, must be exercised with a sound discretion, and where to dismiss a bill on this ground would impose great and unnecessary hardship upon the parties it should not be done.
39 Ill. App. 88Johnson v. Stephenson (1890)
In error to the Circuit Court of Woodford County; the Hon. S. S. Page, Judge, presiding.
39 Ill. App. 91Bailey v. Ferguson (1890)
Appeal from the Circuit Court of Boone County; the Hon. Charles Kellum, Judge, presiding.
39 Ill. App. 93Piper v. Headlee (1890)
Mortgages — Foreclosure—Misdescription—Vendor's Lien—Agency— Jurisdiction—Freehold—Evidence. 1. The rule that the payee or indorsee of negotiable paper takes it free from conflicting equities between the.makers or obligees of which he had no notice, applies to equities between principal and surety, as well as other equities, and if the. payee has no notice of suretyship, there is no equitable obligation to protect the surety resting on him; he is justified in treating them both as principals. 2. The entering satisfaction of a mortgage and taking a new one, when designed by the parties to be a continuation of, the first mortgage, is not a satisfaction but a continuation thereof, and as to an intervening judgment creditor of the mortgagor does not give him priority. 3. Upon a bill filed to foreclose a mortgage this court holds, in view oí the evidence, certain property in question having been misdescribed, a new mortgage being given and the rights of minors involved, that the decree of the trial court can not stand, and remands the cause with directions as to the decree which should be entered herein. 4. In the case presented, this court hold that the motion of appellees to dismiss the appeal upon the ground that a freehold is involved can not be sustained, the question being as to the existence and priority of mortgage liens.
39 Ill. App. 106Barton v. Harris (1891)
Practice—Overruling Motion for New Trial—Necessity of Exception. Where a motion for new trial is overruled and the defeated party fails to except, it will be presumed that he acquiesces in the decision of the court, and it can not be assigned for error.
39 Ill. App. 107Morehouse v. City of Dixon (1891)
Municipal Corporations—Negligence of—Defective Sidewalk—Personal Injuries—Cripple—Evidence—Instructions. 1. An instruction not based upon evidence adduced should not be given. 2. Nor one that is suggestive and argumentative. 8. Nor one that calls the attention of the jury to a fact and gives it undue prominence. 4. Tn an action brought to recover from a municipality for personal injuries alleged to have been occasioned by its negligence, this court holds that on account of the giving of wrongful instructions for the defendant, and the refusal of one that was proper in behalf of the plaintiff, the judgment against the latter can not stand.
39 Ill. App. 114Chicago, Wilmington & Vermillion Coal Co. v. Peterson (1891)
Master and, Servant—Negligence of Mine Oioner—Failure to Supply Props—Laws of 1887, Secs. Hand 16, Page235—Evidence—Contributory Neg ligen ce—Instructions—Practi ce. 1. A judgment of a trial court may be reversed pro forma on account of the failure of an appellee to file briefs herein. 2. Gross negligence is the want of ordinary care; what constitutes ordinary care varies with the circumstances of each case; one must act under all circumstances as a reasonably prudent person should act. 3. It is against public policy to allow the provisions of a statute touching the care an employer must exercise with regard to the protection of his employes from personal injury, to be dispensed with by contract. 4. An employe injured through the negligence of his master may release him from liability therefor upon receipt of a sum agreed upon. 5. In the case presented, this court holds, in view of the evidence, that under the statute it was sufficient for the plaintiff to notify the “ mine car driver ” that props were necessary in the room where he was at work; that the release in question was understandingly executed and delivered by the plaintiff to the defendant, and that in view thereof the judgment in his favor can not stand.
39 Ill. App. 120Rippentrop v. Doctor (1891)
Appeal from the Circuit Court of Ogle County; the Hon. John D. Crabtree, Judge, presiding.
39 Ill. App. 122Oberne, Hosick & Co. v. Bunn (1891)
In error to the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
39 Ill. App. 127Wilson v. Dowse (1891)
Agency—Accounting—Master's Report—Exceptions. This court declines, in view of the evidence, to interfere with a decree for the defendant upon a bill filed for an accounting.
39 Ill. App. 131Metz v. Wood (1891)
Appeal from the Circuit Court of Ogle County; the Hon. John D. Crabtree, Judge, presiding.
39 Ill. App. 135Brownlee v. Village of Alexis (1891)
.In error to the Circuit Court of Warren County; the Hon. John C. Bagby, Judge, presiding.
39 Ill. App. 145Edwards v. Martin (1891)
Appeal from the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.
39 Ill. App. 154Town of Sheldon v. Burry (1891)
In error to the Circuit Court of Iroquois County; the Hon-Alfred Sample, Judge, presiding.
39 Ill. App. 158Russell v. Thomas (1891)
Appeal from the Circuit Court of Iroquois County; the lion. Alfred Sample, Judge, presiding.
39 Ill. App. 162People v. Davis (1891)
In error to the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.
39 Ill. App. 164C. Aultman & Co. v. Silvis (1891)
Chattel Mortgages—Chap. 95, Starr C. 111. Stats., Act of 1877, See. 4, page 179-—Replevin. 1. A mortgagor has a right to secure a debt not maturing in two years with a chattel mortgage for the full period of two years. 2. A creditor and mortgagee may' declare his whole debt due, in advance of the time named in the note, in case of the seizure of the mortgaged goods by another, or in case of danger of losing his security, the mortgage containing a provision to that end.
39 Ill. App. 178Van Nostrand v. Mealand (1891)
Appeal from the County Court of Kane County; the Hon. * Edward C. Lovell, Judge, presiding.
39 Ill. App. 180Johnson v. Stinger (1891)
Appeal from the Circuit Court of Marshall County; the Hon. Lawrence W. James, Judge, presiding.
39 Ill. App. 182O'Leary v. Bradford (1891)
Replevin—Goods in Possession of Another under Bill of Sale—Practice —Insufficient Abstract. "1. A purchaser of personal property, in order to acquire title thereto as against creditors and bona fide purchasers of the vendor without notice, must reduce the property purchased to possession before the rights of such creditors or purchasers attach thereto. 2. In the case presented, this court holds that the jury were justifiedin finding that defendant had actual notice of the rights of plaintiff to the property in question before the levy was made; that notice to the officer holding the writs was notice to the attaching creditors, and declines to interfere with the judgment for the plaintiff.
39 Ill. App. 185Steel v. Shafer (1891)
Trespass vi et Arniis—Evidence—Instructions. 1. An instruction not based upon evidence introduced should be refused. 2. A party will not be allowed to put in evidence his own statements as to an affray, or his own statements as to his mental condition at the time thereof, made at a time subsequent to the occurrence. 3. A general objection to admitting in evidence a reply to an interrogatory in a deposition, a portion thereof only being proper evidence, cun not be considered herein.
39 Ill. App. 193Mettler v. Craft (1891)
James H. Cartwright, Judge, presiding. This was a hill in equity filed by the appellee against the appellant, seeking to subject lots 9 and 10 in block 5, in the city of Rochelle, to the payment in the nature of a lien of a certain sum of money expended by appellee and his intermediate grantors on the said lots by way of improvements, the legal title to the same having failed, and appellant having recovered the same in an action of ejectment against the appellee.
39 Ill. App. 216Freeman v. Arnold (1891)
Mechanics' Lien Law—When Lien Attaches—Mortgage—Priority. Under Secs. 1 and 2 of Chap. 82, R. S., a lien for labor or material attaches at the time when the contract under which the same was furnished, was made.
39 Ill. App. 218City of Rock Island v. McEniry (1891)
Municipal Corporations—Action by City Attorney to Recover for Services Rendered outside County—Construction of Ordinance—Estoppel—Practice —New Trial—Sufficiency of Evidence to Support Verdict. 1. A court is not bound to grant a motion for a new trial because both parties may assent ihereto. 2. A city council has power to rescind a vote to pay a certain sum in settlement of a contested claim so long as such action of the council remains executory.
39 Ill. App. 223Hanks v. People (1891)
Appeal from the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.
39 Ill. App. 227Wilson v. Challis (1891)
Appeal from the Circuit Court of Livingston County; the Hon. N. J, Pilsbüry, Judge, presiding.
39 Ill. App. 229Huber v. Schmacht (1891)
Appeal from the Circuit Court of Eock Island County-the Hon. Arthur A. Smith, Judge, presiding.
39 Ill. App. 230Westphal v. Austin (1891)
Dram-shops—Injury to Plaintiff's Means of Support—Evidence—Causation—Practice—Instructions. 1. In an action brought by a'minor by next friend, under the Dram-shop Act, to recover for alleged injuries to plaintiff’s means of support by reasov of defendant’s sales of intoxicating liquor to plaintiff’s father, thereby causing the death of plaintiff’s father, held, first, that the evidence failed to show that the death of plaintiff's father was caused by the sales of liquor shown, and second, that the evidence did not sufficiently show that plaintiff had suffered in his means of support through the death of his father. 2. Where the instructions complained of are not abstracted, this court will not consider the objections made thereto.
39 Ill. App. 237Burnett v. Snapp (1891)
In error to the Circuit Court of Will County; the Hon. Dorr an oe Diuell, Judge, presiding.
39 Ill. App. 238Smith v. People (1891)
In error to the Circuit Court of Lee County; the Hon. William Brown, Judge, presiding.
39 Ill. App. 240County of McHenry v. Town of Dorr (1891)
Appeal from the Circuit Court of McHenry County; Ihe Hon. Charles Kellom, Judge, presiding.
39 Ill. App. 248Martin v. Jamison (1891)
.Appeal from the Circuit Court of Henderson County; the Hon. Jons C. Bagby, Judge, presiding. This suit is brought by appellants against appellees. The complainants in the suit, some forty and more in number, aver that they were residents of and taxpayers in school district Ho. 9, Township Ho. 10 H, E.4¥. 3d P. M., in Henderson County.
39 Ill. App. 258Brechon v. Duis (1891)
Appeal from the Circuit Court of Lee County; the Hon. John D. Cbabtree, Judge, presiding.
39 Ill. App. 260Chicago Sash, Door & Blind Manufacturing Co. v. Shaw (1891)
■ Appeal from the Circuit Court of Lee County; the Hon; John D. Crabtree, Judge, presiding.
39 Ill. App. 261Chicago, Burlington & Quincy Railroad v. Evans (1891)
Practice—Time for Filing Copy of Record—Computation of—Construction of Statute. Under Sec. 73, Chap. 110 R S.,regulating the time within which a certified copy of the record must be filed in the Appellate Court, the proper rule is to exclude the day on which the time commences to run and include the day to which it should run.
39 Ill. App. 263Westgate v. Aschenbrenner (1890)
Replevin — Alleged Sale — Evidence — Instructions—Stenographer's Notes. 1. In an action of replevin, this court holds, the jury having been correctly instructed, and the evidence supporting the verdict, that the judgment for the plaintiff must be affirmed. 2. Upon petition for rehearing, where the petitioner complained’ that a point of law had been overlooked by the court, held, that as the point in question had not been presented by the instructions asked in the court below, it was not to be considered here. 3. Although an instruction may be erroneous considered as an abstract statement of law, yet where the court can see that the jury were not misled, the judgment will not, on account of such error, be reversed.
39 Ill. App. 266Westgate v. Aschenbrenner (1890)
Replevin—Alleged Sale—Evidence. No error of law appearing, and the evidence supporting the verdict, the judgment for the defendant must be affirmed.
39 Ill. App. 267Mississippi Valley Manufacturers' Mutual Insurance v. Bermond (1891)
Practice—Failure to Name Court to Which Appeal is Taken. Where neither the prayer for an appeal nor the order of the Circuit Court granting the same, names the court to which the appeal is to be taken, but the transcript is filed in this court, the case must be stricken from the docket.
39 Ill. App. 269Woodburn v. Baum (1891)
Practice. Judgment reversed under rule 27, no brief having been filed by appellee.
39 Ill. App. 270Plano Manufacturing Co. v. Parmenter (1891)
Practice—Weight óf Evidence—Instructions—Delivery to Common Carrier as Evidence to Show Delivery to Consignee—When Consignee is Agent of Consignor Instead of Purchaser. 1. Where a plaintiff states such a case in an instruction as requires a verdict iñ his favor, and requests the court to instruct the jury, that if they find the facts to be as stated, then they must return a verdict for the plaintiff, it is error for the court to substitute the word may for must. 2. Proof of delivery of goods to and their shipment by a common carrier to a consignee, suitably and properly billed and directed, is just as strong and effectual prima facie evidence of their receipt by the consignee, even if such consignee is the agent of the consignor, as it would be if the consignee were the purchaser of such goods.
39 Ill. App. 273Henning v. Eldridge (1891)
Appeal from the City Court of Aurora, Illinois; the Hon. Russell P. Goodwin, Judge, presiding.
39 Ill. App. 274McDole v. McDole (1891)
Real Property—Bill in Chancery—Tenant Per Autre Vie—Waste— Method of Estimating. 1. Upon the case presented it. is held: That the appellant was a tenant in possession per autre vie, and that he was liable to the owner o£ the inheritance for waste permitted. 2. Upon the question of the value of wood cut and sold from the premises, testimony of witnesses stating the amount of wood actually cut and sold outweighs that of witnesses estimating the value of the wood per acre.
39 Ill. App. 278Goldsbrough v. Gable (1891)
Practice—Time for Talcing Appeal to Supreme Court—Not Extended by Pendency of Petition for Rehearing. The time within which an appeal from a judgment of this court to the Supreme Court may be prayed is limited to twenty days, and that time is not extended by the pendency of a petition for rehearing, but a party must elect which of these remedies he will pursue. He can not have both unless his petition for rehearing is disposed of within the twenty days.
39 Ill. App. 279Gould v. Warne (1891)
Appeal from the Circuit Court of DeKalb County; the Hon. Charles Klllum, Judge, presiding.
39 Ill. App. 284Gillett v. Insurance Co. of North America (1891)
Fire Insurance—Payment of Premium by Agents—Action by Company Against Insured for use of Agents—Subrogation—Interest of Nominal Plaintiffs—Consent of to Suit—Practice. 1. Where the agents of an insurance company issued a policy of insurance, which was accepted by the insured, but on which the insured failed to pay the premium when due, and the agents, under their contract with the company, paid the premium, in an action brought in the name of the company for the use of the agents against the insured to recover the amount of the premium, it is held: That the agents were subrogated to the rights of the company as to the claim under the policy and that no assignment was necessary to enable them to recover the premium advanced by them. 2. A party defendant can not defend a suit by showing a want of interest in the nominal plaintiff.
39 Ill. App. 287Peoria & Pekin Union Railway Co. v. Herman (1891)
Appeal from the Circuit Court of Peoria County; the Hon. Lawrence W. James, Judge, presiding.
39 Ill. App. 298County of Du Page v. Martin (1891)
C. W. Upton, Judge, presiding. This was a petition for a writ of mandamus filed in the Circuit Court, February 21, 1888, by appellees against appellant, seeking to compel the board of supervisors of Du Page County to appropriate to the appellees, as the commissioners of highways of the town of Winfield, the sum of $1,081.60, one-half the expense of constructing a bridge and its approaches across the Du Page at Gary’s Mills in said township.
39 Ill. App. 309Schriner v. Peters (1891)
Appeal from the Circuit Court of Carroll County; the Hon. John D. Crabtree, Judge, presiding.
39 Ill. App. 311McGillis v. Willis (1891)
Drainage—District- Commissioners—Action against for Damages Resulting from the Building of a Dam—Res Adjudícala—Quasi Public Corporation. 1. A drainage district is a public, involuntary, quasi corporation, and in the absence of special enactment is not liable for the wrongful and unlawful acts of its agents done in the execution of corporate duties and powers. 2. Where the drainage commissioners merely acted under the order of the County Court in letting the contract for the work complained of and had no immediate supervision of its execution, they are not personally liable for injuries resulting from the prosecution of the work. 3. In an action brought to recover damages for the overflow of plaintiff’s land, resulting from the construction of a dam, where it clearly appeared that the erection of the dam was necessary to the feasible and economical prosecution of the work of the drainage district, it is held: That the plaintiff’s claim for damages was, or might have been, passed upon in the assessment of damages in the drainage proceedings, and that the matter was res cidjudicata.
39 Ill. App. 317Luthy v. Waterbury (1891)
T. M. Shaw, Judge, presiding. This is an action of assumpsit brought by the appellees against the appellants, Luthy & Co., on a promissory note, dated May 10, 1889, for $19,000, payable ¡November 10,1889, and also upon an open account for $2,869.92. To this the defendants oppose a plea of the general issue and two pleas of set-off. Upon a trial by the jury the appellees obtained a verdict for $21,798.92.
39 Ill. App. 330Herdman v. Cooper (1891)
William C. Johes, Judge, presiding. William H. Herdman and his wife were 'married in 1850. At that time Mrs. Herdman was owner, as heir of her father, of an undivided third of lot 3, block IS, in Mount Vernon, and subsequently she became the owner of another undivided third of the lot, and her husband the owner of the remaining third. They moved into the house on the lot in 1851 and have continued to occupy it as a homestead ever since.
39 Ill. App. 341Ham v. Peery (1891)
Garnishment—Ban7c—Certificate of Deposit—Costs—Judgment—Informality in—Practice—Demand. 1. Garnishees are not liable for costs, but for the amount in their hands belonging to the debtor in attachment; and the attaching creditor can make a demand that will be availing only by suing out the writ and causing it to be served on the garnishees, and from the time of service the money then in their hands, belonging to the debtor in attachment, becomes subject to the legal claims of the attaching creditor against such debtor. 2. The proper practice in such cases is to enter judgment against the garnishee in favor of the defendant in attachment for the benefit of the attachment creditor, and whatever surplus there may be after paying the creditor and costs belongs to the debtor in attachment.
39 Ill. App. 344City of Vandalia v. Ropp (1891)
James A. Creighton, Judge, presiding. Defendant in error brought this suit against the city of Vandalia to recover damages for personal injuries caused by the negligence of the city.
39 Ill. App. 350Miller v. Rolen (1891)
Appeal from the Circuit Court of Richland County; the Hon. Carroll C. Boggs, Judge, presiding.
39 Ill. App. 351Toledo, St. Louis & Kansas City Railroad v. Conroy (1891)
Louis, Illinois; the lion. B. H. Caney, Judge, presiding. On the 6th day of January, 1889, appellee was woi'king upon the road bed of appellant in and near the City of East St. Louis.
39 Ill. App. 354St. Louis & Cairo Railroad v. East St. Louis & Carondelet Railroad (1891)
Clair County; the Hon. George W. Wall, Judge, presiding. This was a suit in assumpsit brought by appellee against appellant to recover a balance- alleged to be due for the rental and use of appellant’s track and right of way from December 12, 1881, to the 31st day of August, 1883, inclusive, at the rate of $25 per day, ad damnum, $12,000.
39 Ill. App. 366St. Louis Bridge Co. v. Miller (1891)
Appeal from the Circuit Court of St. Clair County; the Hon. B. E. Burroughs, Judge, presiding.
39 Ill. App. 376Muddy Valley Mining & Manufacturing Co. v. Phillips (1891)
Appeal from the Circuit Court of Jackson County; the Hon. O. A. Hajrker, Judge, presiding.
39 Ill. App. 380Lusk v. Parsons (1891)
Practice—Pill of Exceptions—Absence of. 1. The rulings of the trial court upon questions arising in the progress of a given'.trial must be preserved in a bill of exceptions duly authenticated; likewise the objections and exceptions; otherwise this court can not review such rulings, nor can the party excepting thereto have the benefit of such exceptions herein. 2. Recitals of the clerk of the trial court in the transcript of the record as to what was done in a given case, are extra-official and of no legal effect.
39 Ill. App. 382Steyer v. Morris (1891)
Appeal from the Circuit Court of Pope County; the Hon. Robert W. McCartney, Judge, presiding.
39 Ill. App. 388St. Louis, Alton & Terre Haute Railroad v. Walker (1891)
Bnilroads—Negligence of—Injury to Stock—Evidence—Instructions. 1. Where in a given case the evidence is sharply conflicting upon material and vital questions of fact, the jury should be accurately instrucled, and the instructions should be based upon the evidence. 2. In the absence of evidence going.to show that a witness stands in fear of being discharged by his employer, a party to a given suit, unless he testifies favorably to the latter, an instruction should not be given based upon such assumption.
39 Ill. App. 390Vetten v. Wallace (1891)
Hr error to the Circuit Court of St. Clair County; the Hon. B. E. Burroughs, Judge, presiding.
39 Ill. App. 398East St. Louis Union Railway Co. v. City of East St. Louis (1891)
In error to the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
39 Ill. App. 401City of Olney v. Riley (1891)
. Appeal from the Circuit Court of Eichland County; the Hon. C. 0. Boggs, Judge, presiding.
39 Ill. App. 404Nuernberger v. Von Der Heidt (1891)
Clair County; the Hon. Geobge W. Wall, Judge, presiding.. On the first day of August, 1888, one Elizabeth Ballhcimer leased to her uncle, the ‘appellee, a tract of land in St. Clair county, Illinois, for a term of three years. The stipulated rental was $75 in cash, and one-third of the wheat raised on the premises, all payable on August 1st of each year. The lease was in writing and filed for record February 9, 1889.
39 Ill. App. 406St. Louis, Alton & Terre Haute Railroad v. Hawkins (1891)
■ Appeal from the Circuit Court of Perry County; the Hon. W. H. Snyder, Judge, presiding. Appellee, September 26, 1888, bought a ticket at Santa Anna, .California, for St. Louis, and received a through check to St. Louis for her trunk. She arrived in St. Louis Thursday afternoon, October 4, 1888, and went at once to the office of appellant and bought a ticket to Tamaroa and exchanged the check she held for her trunk for the check of appellant.
39 Ill. App. 409Ohio & Mississippi Railway Co. v. Ramey (1891)
Railroads— Kegligence— Floioage—Extraordinary Flood—Embank' ment—Maintenance of—Proximate Cause of Injury—Special Interrogatories—Practice. 1. It- is proper to enter the general verdict in a given case without requiring the jury to return a special finding upon an interrogatory which did not submit a question that was controlling. 2. In an action to recover from a railroad company for injury to growing crops, alleged to have occurred through its negligence, this court holds: That the jury were justified in'iinding that its embankment and not an extraordinary flood caused the damage in question, and declines to interfere with the verdict for the plaintiff.
39 Ill. App. 413New Home Life Ass'n v. Owen (1891)
O. A. Habker, Judge, presiding. Appellant issued a certificate of membership, in the nature of a policy of insurance, to Allen J. Hagler, May 10, 1884, Letha Owen and Rufus D. Owen being named as beneficiaries in such certificate. Hagler died August 10, 1888, and the association refusing to pay, suit was brought by the beneficiaries to recover upon the certificate.
39 Ill. App. 416Wilderman v. Pitts (1891)
Contract to Dig Well—Recovery on—Evidence—Instructions—Practice,. 1. Where, under a contract to do a certain thing, the contractor is bound to make certain tests, and is prevented from doing so by the contractee, he will be excused from the performance of such requirement. 2. Specific objections to the admission of evidence by the trial court, general objection only thereto having been made therein, can not be considered by this court. 3. In an action brought to recover upon a contract to dig a well, this court holds-that the jury were justified in finding that the well, when finished, was of the capacity, and -would furnish the supply of water required by the terms of said contract; that the evidence established the fact that the plaintiff was prevented by the defendants from testing the well after it was finished, and declines to interfere with the verdict for the plaintiff, although the same is for less than the contract price.
39 Ill. App. 422St. Louis National Stock Yards v. Tiblier (1891)
Appeal irom the Circuit Court of St. Clair County; the Hon. W. H. Snyder, Judge, presiding. Appellee shipped from Kansas City to appellant a car load of horses. The horses were intended for the Hew Orleans market. They reached the stock yards in East St. Louis March 28, 1888, in the evening, over the C. & A. JR. JR. On that evening, between five and six o’clock, appellee went to the stock yards to look after his horses.
39 Ill. App. 425D. M. Osborne & Co. v. Meyerott (1891)
Account—Balance Due—Recovery of. In an action to recover a balance alleged to be due upon an account, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.
39 Ill. App. 426City of Mt. Vernon v. Brooks (1891)
Municipal Corporations—Negligence of—Personal Injuries—Cripple— Defective Sidewalk—Municipal Warrants—Issuance of in Anticipation of Collections—Sec. Z, Chap. 146, Starr & C. III. Stats.—Evidence—Instructions. 1. Where municipal corporations omit the duty of erecting railings or other guards on the sides of a walk adequate for the protection from danger by falling therefrom, of persons using the walk with ordinary care and caution in walking thereon, it will be sufficient to sustain a verdict for gross negligence. 2. A cripple using crutches has the same right to use a sidewalk as a sound person, but must exercise a higher degree of care. 8. A city assuming to repair a sidewalk must do so in such a manner as to render the same reasonably safe for travel. 4. in view of Sec. 2. Chap. 146a,Starr & 0. 111. Stats., a municipal corporation will not be excused from repairing its sidewalks, there being no funds in its treasury, if a tax levy is already made, against which warrants may be issued in anticipation of its collection by virtue of that section. 5. A witness should not be cross-examined as to matters not touched upon in chief. 6. In cases of this sort it is for the witness to give the facts as to the condition of a given walk and the jury to decide as to its safety. 7. A city is bound to use ordinary care to keep its walks in a reasonably safe condition for persons using ordinary care and with the ordinary capacity to care for themselves.
39 Ill. App. 434William Deering & Co. v. Washburn (1891)
James A. Cbeighton, Judge, presiding. The action is replevin brought by appellant to recover some cultivators, plows, wagons and corn-planters from appellee, the sheriff of the county, who had levied upon the chattels by virtue of an execution in favor of Walter A. Wood Mowing & Reaping Company against one R. H. Miller.
39 Ill. App. 438Minter v. People (1891)
In ebkob to the Circuit Court of Gallatin County; the Hon. C. C. Boggs, Judge, presiding. The plaintiff in error was a witness before the grand jury and answered that he knew of cards being played for money in Gallatin county within eighteen months last past, and was then asked by the foreman, “ Who did you see playing?” which question he refused to answer, whereupon he was brought before the court and admitted the facts as above.
39 Ill. App. 441Eugene Robinson Floating Museum Co. v. Hauptmann (1891)
Contracts—For Use of Boat—Becooery for. In an action brought to recover upon a contract touching the use of a certain boat, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.
39 Ill. App. 443St. Louis, Alton & Terre Haute Railroad v. Russell (1891)
Railroads—Negligence of—Injury to Stock—Crossings—Signals. 1. A railway engineer seeing domestic animals grazing near a crossing, is not bound for that reason to stop or slow his train. 2. It is (be duty of such engineer to slow or stop his train when such stock is on the crossing, or in such proximity thereto that a collision may be expected. 3. The engineer must, in such cases, use reasonable care and diligence in the management of his train to prevent injury to stock. 4. An instruction should not define particular acts in a given case as negligence.
39 Ill. App. 446Corn v. Board of Education (1891)
In ebbob to the Circuit Court of Jefferson County; the Hon. W. C. Jones, Judge, presiding.
39 Ill. App. 453Consolidated Coal Co. of St. Louis v. Peers (1891)
Appeal from the Circuit Court of Madison County; the Hon. W. H. Skydee, Judge, presiding.
39 Ill. App. 456St. Louis Bridge Co. v. Fellows (1891)
Appeal from the City Court of East St. Louis, Illinois; the Hon. B. II. Caney, Judge, presiding.
39 Ill. App. 470Baer v. Knewitz (1891)
Clair County; the Hon. George W. Wall, Judge, presiding. A bill to foreclose a mortgage made by Conrad Benner and Elizabeth Benner to secure certain notes, was filed in the St. Clair Circuit Court by John Seibert, and on the same day a bill was filed to foreclose a mortgage made by the Benners to Henry Knewitz in which defendant in error was complainant. These causes were consolidated at the May term, 1889, of said court and a decree entered.
39 Ill. App. 473Ohio, Indiana & Western Railway Co. v. People (1889)
Appeal from the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
39 Ill. App. 476Anderson v. Thiele (1891)
Appeal from the Circuit Court of Pike County; the Hon. C. J. Scofield, Judge, presiding.
39 Ill. App. 478Tobin v. Collier (1891)
Appeal from the Circuit Court of McLean County; the Hon. Owen T. Reeves, Judge, presiding.
39 Ill. App. 481Nealon v. People (1891)
Practice—Indictments—Quashing of—Grand Jury. 1. A motion filed to correct the record, so as to show the method of completing panel of grand jurors, by a defendant, previously to pleading to an indictment, should be overruled where none of the grounds mentioned therein would have justified the court in quashing the indictment. 2. A grand jury, when properly organized, meets and adjourns upon its own motion, without reference to the temporary adjournment of the court, and it may lawfully proceed in the performance of its duties whether the court is in session or not; but this right to remain in session will not extend beyond the final adjournment of the court for the term, but within such limits it will be governed by its own wishes, subject; to the control that the court at all times has over it. 3. A mere irregularity in drawing a jury is not sufficient cause to sustain a challenge to the array, unless the irregularity complained of is of such a character as would probably have produced a change in the panel, or presented a list of names to choose from, different from those which would be produced by a compliance with the law. 4. In the case presented, this court holds as erroneous, the overruling of the challenge to the array of the petit jury, the county board having disregarded the provisions of Sec. 2, Chap. 78, R. S. 5. When a case is called for trial, and the regular panel of twenty-four men is for any cause not full, the court may order it filled from the bystanders; but after the selection of the jury has begun and this number becomes reduced, so there are'not twelve jurors to place in the box, the court should order only enough to be selected from the bystanders to keep twelve men in the box and need not keep the original panel of twenty-four full. 6. The questions to be asked of jurors on their voir dire, and the time permitted to be occupied in examining jurors, is largely within the discretion of the court in a given case.
39 Ill. App. 488Dwelling House Insurance v. Bailey (1891)
Appeal from the Circuit Court of Moultrie County; the Hon. J. F. Hughes, Judge, presiding.
39 Ill. App. 490McCrory v. Hamilton (1891)
Appeal from the County Court of Coles County; the Hon. L. C. Henley, Judge, presiding.
39 Ill. App. 493Hess v. Keiser (1891)
Appeal from the County.Court of McLean County; the Hon. C. D. Meyers, Judge, presiding.
39 Ill. App. 495Lake Erie & Western Railroad v. Christison (1891)
Railroads—Ejectment of Passengers—Damages—Practice—Discretion of Trial Courts•—Evidence—Instructions—Practice. 1. In an action for tort where the averments of the declaration are divisible, the plaintiff may recover upon proof of enough to make a cause of action. 2. In such case mere surplusage will not vitiate, but where some statement on the subject is necessary and it can not be wholly rejected, a variance or failure to prove as laid is fatal. 3. Punitive damages are admissible where the injury is wantonly inflicted, and are visited upon the wrongdoer by way of mere punishment, regardless of (he amount of damages actually sustained. 4. The indignity suffered by reason of the unlawful act of another is a proper subject of compensation whether the act was wanton, malicious or wilful, or whether it was merely negligent or mistaken. 5. What the indignity is in a particular case is a question of fact for the jury. 6. It is proper to refuse to repeat, or absolutely refuse an instruction where the same contains elements calculated to mislead or confuse the jury. 7. In an action brought for the recovery of damages for the alleged wrongful ejectment of plaintiff from a railroad train, this court holds, in view of the evidence, that the trial judge was guilty of no abuse of discretion during the trial thereof in the court below; that there was no error in the giving or refusing of instructions, and declines to interfere with the judgment for the plaintiff.
39 Ill. App. 499Purcell v. Town of Bear Creek (1891)
Principal and Surety^-Town Supervisor—Action on Bond of—Sec. 202, Chap. 139, Starr <& C. Ill, Stats.—Levy by Auditor. 1. The fact that under the terms of the bond of a township supervisor, he is required merely to perform his official duties “ to the best of his skill and ability,” will not excuse him for a misapplication of money. He must be held to know the law, and if in doubt, must obtain an adjudication that will protect him. 2. A board of town auditors has no power, under any circumstances, to ratify an illegal appropriation of town funds, and such ratification can not bind the town. 3. The payment of taxes irregularly levied amounts to a ratification, and such irregularity can not justify the keeping or misapplying of the money so raised, by a township supervisor. 4. In the case presented, this court holds that the amount in question was wrongfully paid to the county treasurer by the township supervisor, and that the judgment for the plaintiff in an action on the official bond of such officer can not be interfered with.
39 Ill. App. 503Town of Rushville v. President & Trustees of Rushville (1891)
Municipal Corporations—Recovery of Money by—Privity—Payment. 1. Where one receives money which he is not entitled to retain, the law will, in proper cases, raise an implied promise to repay it to him from whom it came, but there is no such implied promise to perform a duty in respect to it which never rested upon him, but, did rest upon the other, to pay to a third party. 2. In such case a party is not compelled at his peril to'determine where the money should have gone in the first place, but when satisfied it is not his, he may clear himself of all responsibility by returning it to him from whom he received it, and to whom alone he is accountable. 3. In view of the evidence, this court reverses the judgment for the plaintiff in an action brought by one municipality against another to recover certain money collected for taxes.
39 Ill. App. 506Carberry v. People (1891)
In error to the Circuit Court of Piatt County; the Hon. C. B. Smith, Judge, presiding.
39 Ill. App. 509Mutual Accident Ass'n of Northwest v. Tuggle (1891)
Appeal from the Circuit Court of McDonough County; the Hon. C. J. Scofield, Judge, presiding.
39 Ill. App. 514Rowland v. Swope (1891)
In error to the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
39 Ill. App. 517Phenix Insurance v. Hart (1891)
Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.
39 Ill. App. 521Windels v. Milwaukee Harvester Co. (1891)
Guaranty—Notes—Payment of—Consideration—Agency. In an action brought to recover upon the guaranty of certain promissory notes, this court holds that in view of a contract between the parties hereto, calling for the indorsement by defendant of certain classes of notes received in a given business, the liability was a continuing one, and required such indorsement, when the contingency provided for arose, and that the contention upon the part of the defendant that the guaranty in question was a subsequent transaction, and was obtained without any new consideration, can not avail him.
39 Ill. App. 523Timmerman v. Pusey (1891)
Appeal from the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
39 Ill. App. 524Dwelling House Insurance v. Downey (1891)
Negotiable Instruments—Note—Execution of—Fraud and Circumvention in Obtaining—Application for Insurance. In view of the evidence, this court affirms the judgment for the defendant in an action brotight by an insurance company to recover upon a note alleged to have been given by him in payment of the premium on one of its policies, the defendant contending that its execution was procured through circumvention and fraud, he supposing he was signing an application for insurance, instead of a note.
39 Ill. App. 526Wilbur v. Turner (1891)
Practice—Tort of Constable—Aiding Unlawful Act by. 1. Whether or not certain facts in evidence in a given case constituted “ aid ” in a legal sense, to a person in the doing of an alleged tort, is for the jury to decide. 2. In an action brought to recover from the defendant for aiding a constable in wrongfully removing personal property of the plaintiff, the same never having been returned, this court declines, in view of the evidence, to interfere with the judgment in his behalf.
39 Ill. App. 527Razor v. Razor (1891)
Husband and Wife—Written Contract—Parol Agreement—Evidence-Instructions, 1. SupposecTerrors in instructions should he pointed out specifically, and not referred to in general terms. 2. A person may prove the existence of a separate oral agreement as to matters upon which a written contract is silent, and which is not inconsistent therewith, if it can be inferred that the parties did not intend the writing to be a complete and final statement of a given transaction, and this rule applies to parol agreements as to how a written contract is to be performed. 3. In an action brought by a married woman upon a written contract executed by her husband, and certain parol provisions not contained therein, the substance being an agreement upon the part of the husband, in consideration of the wife signing a deed of conveyance of their home, to invest in her name the proceeds of the sale thereof in another house in a different place, this court holds that the plaintiff’s existing interest in the property being sold by her, formed the consideration for the undertaking upon the part of the defendant to furnish the other house; that it was a good and sufficient consideration to support the agreement; and declines to interfere with the judgment for the plaintiff.
39 Ill. App. 530Illinois Central Railroad v. Light (1891)
Appeal from the Circuit Court of McLean County] the Hon. A. Sample, Judge, presiding.
39 Ill. App. 532Truesdale Manufacturing Co. v. Hoyle (1891)
Contracts—BalanceDue—Payment—Set-off—Evidence—Instructions — Practice—Damages for Delay. 1. Where no time is fixed, the law will imply that material for a given purpose is to be furnished within a reasonable time, which will vary with circumstances. 2. Where a person so agreeing to furnish, knows that the purchaser is required to complete a given contract within a certain time, he contracts with this fact in view, and takes the risk of delay arising from the pressure of other engagements and from possible failure to obtain certain articles necessary to enable him to so furnish. 8. It is proper in an action brought to recover an amount alleged to be due from a contractor, where the latter contends that he has been injured through delay in furnishing the goods in question, to allow such contractor to show that certain subcontractors have collected from him by suit damages for delays caused them in the performance of their contracts; such judgments are not conclusive as against those who were not parties to it, but they tend to show the damage as claimed by such contractor. 4. A witness should not be interrogated upon cross-examination as to a matter upon which a party in interest bases no claim, or one which calls for an argumentative reply. 5. It is proper upon calling a party to a suit as a witness to require him to state and produce letters and telegrams in his possession received from the party calling him, the same relating to the subject in controversy, without serving notice, or a subpoena duces tecum specifying what papers are wanted. 6. Evidence as to directions given by a contractor as to pushing a certain work may be admitted in a given case, where the same had reference to the methods adopted as to the work in hand. 7. The leading facts of a case should be presented hypothetically before asking an expert witness how much loss of time would be caused by mechanics changing from one kind of work to another. 8. Where the pleas in a given case do not deny the plaintiff's cause of action, but allege payment and set-off as a defense, the burden of proof is thrown upon the defendant and gives him the right to begin and conclude.
39 Ill. App. 541Chicago & Alton Railroad v. Matthews (1891)
Appeal from the Circuit Court of McLean County; the-Hon. Alfred Sample, Judge, presiding.
39 Ill. App. 546Kerr v. Hodge (1891)
Appeal from the Circuit Court of Schuyler County; the Hon. J. C. Bagby, J udge, presiding.
39 Ill. App. 553Sundmacher v. Block (1891)
Appeal from the Circuit Court of -Sangamon County; the Hon: J. A. Creighton, Judge, presiding.
39 Ill. App. 565Dines v. People (1891)
In error to the County Court of McDonough County; the Hon. L. T. Sherman, Judge, presiding.
39 Ill. App. 569Connecticut Mutual Life Insurance v. Smith (1891)
Life Insurance—Policy—Conditions in —Breach of—Habits of Intoxication—Suicide—Pleading—Evidence—Instructions. In an action brought to recover upon a life insurance policy, the defendant contending among other things that assured died a suicide, and that the plaintiff is entitled to recov-r only an amount named, this court holds ns proper the rulings of the trial court touching the defendant’s demurrer to the first replication to the defendant’s third plea; likewise as to receiving evidence under the second replication to said plea; and declines, in view of the evidence, to interfere with the judgment for the plaintiff.
39 Ill. App. 574Rockford Insurance v. Wright (1891)
Fire Insurance—Policy— Conditions— Vacancy—Waiver—Evidence—1 Instructions. 1. A technical defense is valid if supported by the evidence. 2. A building insured as, and leased for a store room, in the process of ordinary preparation—not repair—for such purpose, is not vacant or unoccupied. 3. Where an insurance company has, by its agent, received notice of ■the vacancy of a building insured therein, and said agent assures the policy holder that it is “all right and we will take care of it,” it can not, in case of loss during vacancy, insist upon the same as a breach of the contract, and thus avoid payment. 4. It is not necessary that every instruction given in a case, should be a full and complete statement of the rules and principles of law involved.
39 Ill. App. 577Bevan v. Atlanta National Bank (1891)
In error to the Circuit Court of Logan County; the Hon. George W. Herdman, Judge, presiding.
39 Ill. App. 585Hewitt v. S. Hexter & Co. (1891)
Negotiable Instruments—Note—Payment—Limitations. In an action brought to recover a balance claimed to be due upon a promissory note, the defense being payment, and the Statute of Limitations, the judgment being for the plaintiffs, this court holds, in view of affidavits filed by the defendant, that a new trial should have been granted upon the ground of newly discovered evidence.
39 Ill. App. 588Northrup v. Smothers (1891)
Appeal from the Circuit Court of Scott County; the Hon. George W. Herdman, Judge, presiding.
39 Ill. App. 592Village of Wapella v. Davis (1891)
Appeal from the Circuit Court of De Witt County; the lion. Cybus Efleb, J udge, presiding.
39 Ill. App. 595Wooley v. Yarnell (1891)
Mortgages—Foreclosure—Limitations—See. 20,^ Chap. 83, R. S.— Removal of Mortgagor to Another State. The fact that a mortgagor of property located in this State, removed to and has resided in another State for such a length of time as will defeat an action at law upon the note given by him, will not affect the right to proceed in chancery to foreclose.
39 Ill. App. 599Wabash Railroad v. Speer (1891)
Railroads—Negligence of—Unnecessary Sounding of Whistle—Crossings—Personal Injuries—Contributory Negligence. 1. It is ordinarily negligence to go upon a railroad track without using ■ the senses to ascertain as to the proximity of trains. 2. A railroad company is liable for personal injuries arising from the frightening of a team standing a safe distance from a crossing, through the unnecessary sounding of the whistle of one of its engines.
39 Ill. App. 600Sheets v. Wetsel (1891)
Wills—Construction of. 1. The intention of a testator, if not inconsistent with the rules of law, must govern in the construction of a given will. 2. It is the general rule that when the use of money is given to one for life, with remainder over to another, the former has no right to the possession of the money so bequeathed, but it should be puf at interest, the interest paid to the tenant for life, and the principal retained for the remainder-man. 3. In the case presented, this court construes several clauses of the will involved, affirming in part and reversing in part the decree of the trial court therein, with directions to amend-the same.
39 Ill. App. 604Campbell v. Magruder (1891)
Dram Shops—Action by Wife—Injury to Means of Support—Pleading —Evidence—Instructions. 1. This court affirms, in view of the evidence, a judgment fqr the plaintiff, in an action brought by a widow under the Dram Shop Act, to recover from saloon keepers for injury to her means of support by reason of the death of her Husband, the same Deing alleged to have been caused by liquor sold or given by them to him. 2. An instruction in such case, purporting to state the right of recovery in the words of the statute, should not omit the clause, “ by giving or selling (to him) intoxicating liquors." 3. In the case presented, this court holds as proper the allowance of hypothetical questions on the basis o£ the undertaker’s statements "as to the contents of the dead man’s stomach. It was for the jury to determine its weight.
39 Ill. App. 607Chicago, Peoria & St. Louis Railway Co. v. Ayers (1891)
Banks—Account of Several Corporations with, under One Name—Interest on Advances and Overdrafts—Recovery of. 1. Under an agreement between the president of several railroad companies and a bank, an account having been opened therewith by him in their behalf under a certain name, that said bank should be paid interest on advances and overdrafts, an action may be brought against all the companies to recover such interest. 2. The fact that one of such roads was being built and not in operation could not affect such right nor could the fact that as between themselves such companies kept separate accounts and had a system by which balances were struck.
39 Ill. App. 609Johns v. McQuigg (1891)
Sales„ In an action brought to recover for lumber sold and delivered, the contention being as to whether the defendant ora building contractor was liable therefor, this court declines, in view of the evidence, to interfere with the judgment for the defendant.
39 Ill. App. 610Davis v. Nichols (1891)
Eminent Domain—Site for School House—Mandamus to Compel Condemnation of. 1. Land held for a public use can be condemned for another public use when the latfer is different from the former, and not inconsistent with, or destructive of, the rights of the public under the first. 2. The public square of a village can not be appropriated as the site for a school house.
39 Ill. App. 613Caldwell v. Evans (1891)
Set-off—See. 49, Chap. 79, R. S. The claim oE a plaintiff in a given case for unliquidated damages arising out o£ a tort, totally disconnected from the defendant’s claim against the plaintiff, upon a note on which suit had been previously brought, is not such a claim or demand as should have been brought forward and adjusted in the suit upon said note.
39 Ill. App. 616Town of Bloomington v. Lillard (1891)
Municipal Corporations—Liability for Attorney's Services. A town is so far interested in a controversy involving the cancellation of spurious orders outstanding against it, as to justify the raising of money and incurring of liability in regard thereto, fqr the payment of professional services rendered therein.
39 Ill. App. 617City of Jacksonville v. Cherry (1891)
Appeal from the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.
39 Ill. App. 618Magers v. Dunlap (1891)
Negotiab le In strum ents — Note —A Iteration— Exemptions—Eviden ee— Consideration■■ 1. The alteration of a promissory note after delivery which in no manner changes the rights or interests, duties or obligations of the parties thereto, has no effect. 2. The words, “ for labor ” in the note in suit, do not import that the consideration was “wages ” due the payee “as laborer or servant,” within the meaning of the exemption act. “Laborer,” or “servant,” as used in the statute, is a designation of a class of persons. 8. In an action brought upon a note given in payment for the professional visits of a physician, the defendant should not be allowed to state the number of visits made, in order to show a partial failure of consideration, she having received all that was promised for the note or gave it for what she received.
39 Ill. App. 620Sauerbier v. Union Central Life Insurance (1891)
Life Insurance—Policy—Reformation—Assignment of—Evidence. 1. As to ordinary policies of life insurance, the beneficiary has a vested interest which is beyond the control of the party procuring the insurance. 2. An intended beneficiary need not be named in order to invest him with such interest, unless required by the policy, and a father may thus provide for his unborn child. 3. Where the description is uncertain in such case, parol or other extrinsic evidence is admissible to aid it. 4. The assurance by the agent of an insurance company of the sufficiency of the statement in, and signature to an application, to accomplish the purpose of the applicant, will bind the company. 5. The acceptance of an application and the making of it a part of a policy by an insurance company will estop it to deny the interest of children mentioned together with a wife in the application, although the policy mentions the wife as the sole beneficiary. 6. In the case presented, this court holds that the beneficial interest was intended to be in the wife and children equally, per capita, and that the policy should be construed in accordance with the intention of assured.
39 Ill. App. 630Grape Creek Coal Co. v. Spellman (1891)
Appeal from the Circuit Court of Vermillion County; the Hon. J. F. Hughes, Judge, presiding.
39 Ill. App. 633German Insurance v. Miller (1891)
Appeal from the Circuit Court of Logan County; the Hon. Cyrus Epler, Judge, presiding.
39 Ill. App. 641City of Pana v. Humphreys (1891)
Practice—Default. A defendant should not he defaulted where pleas on his behalf are on file and undisposed of.
39 Ill. App. 642Litchfield Car & Machine Co. v. Romine (1891)
Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.
39 Ill. App. 643Ward v. Redden (1891)
In error to the Circuit Court of Cumberland County; the Hon. W. C. Jones, Judge, presiding.
39 Ill. App. 644Foval v. Foval (1891)
Appeal from the Circuit Court of Calhoun County; the Hon. Cyrus Epler, Judge, presiding.
39 Ill. App. 649Lake Erie & Western Railroad v. Wills (1891)
Railroads—Negligence of—Crossing—Personal Injuries—Contributory Negligence—Duty to Look and Listen—Practice. 1. The formal ad damnum appearing at the end of a given count applies to all the counts that precede it. 2. It is proper in personal injury cases to ask a physician, testifying as an expert, whether certain injuries are permanent or not, and whether the same are of a class that are necessarily painful. 3. It is as much the duty of a hand car crew upon approaching, with their car,.a street crossing, the greater part of which is occupied by a standing train, to use such care as will prevent injury to themselves, as others approaching the same, having equal rights.
39 Ill. App. 656Bridges v. People (1891)
Criminal Law—Act Concerning Propagation and Cultivation of Fishes — Use of Seine. A pond that is private property is not included within the terms of the statute prohibiting the catching of fish with seines or similar devices in “ water-courses wholly within or running through the State of Illinois.”