Volume 42 — Illinois Appellate Court Reports

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

<p>Appeal from the County Court of Will County; the Hon. Benjamin Olin, Judge, presiding.</p>

<p>Dogs—Injury from Bite of—Damages—Husband and Wife—Evidence.</p> <p>In ail action brought to recover damages for injuries arising out of the bite of a dog, this court holds as proper, a refusal to admit in evidence testimony of the wife of one of the defendants, in behalf of the other, that the fact that she occasionally tied up and watched the dog did not make her the agent of her husband, and declines to interfere with the verdict for the plaintiff.</p>

<p>Railroads—Negligence—Injury to Stoch—Crossings—Failure to Signal —Evidence—In struction s—Pleading. ,</p> <p>1. A plaintiff is confined to the acts of negligence specified in his declaration, and it is error to instruct the jury that he may recover for other negligence.</p> <p>2. The mere omission to ring the bell or sound the whistle as required by .statute, does not subject a railroad company to damages on account of a collision at a highway crossing. It is only where the collision is the result of the omission that damages can be recovered. . •</p> <p>3. In an action brought to recover from a railroad company for the killing of horses and injury to a wagon at a crossing, the declaration counting on a common law liability, this court holds that there is no merit in plaintiff’s contention that because of the offering by counsel for the defendant of a certain instruction, he tried the case upon the theory that the declaration counted upon a statutory liability; that the jury were improperly instructed touching the statutory duty of defendant, and that the judgment for the plaintiff can not stand.</p>

<p>Dram Shops—Intoxicating Liquors—Sale of.</p> <p>1. Where a defendant goes to trial without moving for a continuance for want of time to prepare for his defense, it will he presumed that he was ready for trial.</p> <p>2. The statutory requirement that upon the issuing of the venire to try a certain cause, ‘‘The court shall thereupon set such case or cases for trial,” is for the convenience of the court alone. No particular time is required to be given to the defendant. The setting of the trial on the same day the venire issues is proper.</p> <p>3. The fact that the verdict in a given case does not specify upon what count of the information a party was convicted cuts no figure, the verdict being a protection to the defendant against any prosecution that may be brought against him on any of the counts contained therein.</p> <p>4. When an information contains two counts, one for selling intoxicating liquors to a person named while intoxicated, the other for selling, such person being in the habit of. getting intoxicated, before the jury can acquit the defendant as to both charges they must have reasonable doubt that such person was intoxicated and was in the habit of getting intoxicated. An instruction in such case, setting forth that if they have reasonable doubt in either case he is entitled to be acquitted on all the counts, is erroneous.</p>

<p>Appeal from the City Court of Aurora, Illinois; the Hon. A. M. Barry, Judge, presiding.</p>

<p>Dram Shops—Act Relating to, Sec. 6—Sale to Minor—Order of Parent— Statutes—Interpretation of.</p> <p>1. While the rule is general that penal statutes must be construed strictly, they should not be construed so strictly as to defeat the obvious intention of the legislature.</p> <p>2. Sec. 6 of the Dram Shop Act has regard not alone to the will and wishes of parents over the conduct of their children, but chiefly to the wholesome restraint of minors as immature members of society. Tt is designed to promote temperate habits among the youth of the State during the formative period of their characters.</p> <p>3. A parental discretion applicable alike to all occasions, and measuring the supply of liquors by nothing but the desires and appetites of the minor, violates the spirit of the act. Consistently with the legislative intention the parent must hold control of the supply, both as to time and quantity, and the written authority must be special, as contradistinguished from general.</p> <p>4. This court holds as invalid the order referred to in the case presented.</p>

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

<p>Appeal from the Circuit Court of Will County; the lion. Charles Blanchard, Judge, presiding.</p>

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

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

James H. Cartwright, Judge, presiding. On the 7th of April, 1890, at a meeting of the trustees of schools of Town. 24, R. 9 E., of Ogle County, a ballot was taken for treasurer, resulting in appellant’s receiving two votes and one A. M. Newcomer one vote. Without taking further action the trustees then adjourned.

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

T. M. Shaw, Judge, presiding. This was a suit on an insurance policy against fire, on the larm dwelling of appellee, and his furniture and other property. Insurance as follows: dwelling$4,000, valued at $6,000; household furniture $1,500, valued at $4,000; piano and music $500, valued at $1,000; .barn $1,500, valued at $2,000; hay in barn $400, and grain in granaries at $400—total $8,300. Policy dated December 28,1887, and run for five years.

<p>Drainage— Sec. 28, Act of 1879—Contract by Commissioners—Removal of Dam—Lack of Funds—Practice.</p> <p>1. The defense of ultra vires can be made under the general issue.</p> <p>2. Where it is provided that a legislative act shall be liberally construed, it is not proper to give it an unreasonable construction, or one contrary to its spirit or intent, or to give it such an interpretation as would embarrass or impede the attainment of the object sought.</p> <p>3. In view of Sec. 28 of the Drainage Act of 1879, it can not be contended that commissioners may make contracts and do the work contemplated before an)' assessment has been made, unless money for the purpose is in their hands.</p> <p>4. In the case presented, this court holds that there is nothing in the contention, that as plaintiffs had carried out their agreement to remove the dam in question, the defendant was estopped from refusing payment on equitable grounds.</p>

<p>Mortgages—Bill to Set Aside—Notes—Cancellation of—Fraud and Duress—Arrest of Grandson.</p> <p>Upon a hill brought to set aside a certain mortgage, and to cancel notes secured thereby, upon the ground that said notes had been extorted from their maker through fraud and duress accomplished by, and in connection with a criminal process issued from a justice court, this court declines to interfere with a decree declaring, among other things, said mortgage to be null and void, and directing that the same be set aside as a cloud on the title of complainant, and that the defendant be perpetually enjoined from attempting to enforce the same.</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 Knox County; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Railroads—Negligence—Injury to Stock—Crossings—View of Track— Obstruction to—Private Crossing—Evidence—Instructions,</p> <p>1. The fact that persons, for their own convenience, use a farm crossing in going to, or returning from, a certain place with the passive acquiescence of a railroad company, does not make the crossing a public one, or create any new duty on the part of the railroad company.</p> <p>2. In such case the company must use ordinary care to avoid injuring a person using such crossing, or property in his charge, and it can only be held liable in case the injury is wilful or wanton.</p> <p>3. A mere naked license or permission to enter or pass over an estate, will not create a duty or impose an obligation on the part of the owner to provide against the danger of accident.</p> <p>4. An instruction setting forth in substance that if the company, with knowledge of the use, did not prevent it or protest against it, then the* farm crossing became public, with all the duties, burdens and obligations thereby created, should not be given.</p> <p>5. Or one requiring a company to use every effort to avoid injury.</p> <p>6. There is no rule of law that declares it to be negligence to permit (he dirt taken from a cut in the construction of a railroad to be thrown up on the right of way, although it might obstruct the view, or weeds to grow with like effect, regardless of the point of crossing and the right to cross, or any duty to the person about to cross the track.</p>

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

<p>Fraud—Deceit—Sale of Land—Quality and Price—Evidence—Instructions.</p> <p>1. The gist of a given action being fraud and deceit, the same not being based upon a contract concerning real estate, not to be performed within a year, defendant not being charged upon any contract of such character, it is proper to disallow the defense of the statute of frauds.</p> <p>2. The statute of frauds was intended to guard against the danger of fraud and perjury being committed in the establishment of contracts concerning land, running longer than one year, but not to protect persons against tortious acts and misrepresentations where others are injured thereby.</p> <p>3. Objections to the introduction of evidence in a given case can not be primarily made herein.</p> <p>4. Malice, in law, does not necessarily imply hatred or ill-will; a motive wrongful and unjustifiable is malicious.</p> <p>5. In an action to recover damages alleged to have been suffered through the fraud of an alleged real estate agent touching the sale of certain, lands, this court holds that the measure of damages was the value of land named as fraudulently represented to the plaintiffs; that the giving of punitive damages was within the discretion of the jury and allowable; and declines to interfere with the verdict for the plaintiffs.</p>

<p>Municipal Corporations—Negligence of—Defective Sidewalk—Personal Injuries—Evidence—Instructions—Intoxication of Plaintiff.</p> <p>1. An instruction presenting a false issue should not be given.</p> <p>2. Nor one placing the burden of proof upon the wrong party.</p> <p>3. Nor one leaving the jury free to assess damages according to their individual notions, unguided by any rule of damages and without regard to tne damages sustained.</p>

<p>Negotiable Instruments—Judgment Note—Depositions—Suppression of —Foreign Tongue—Constitution of Illinois, Schedule of, Sec. 18—Evi-den ce—Instructions.</p> <p>1. An objection that there was nothing to show that the person who noted as interpreter in taking a deposition in a foreign country had been sworn according to law, or that the commissioner had taken an oath to faithfully interpret the same, should be made before trial, and comes too late when made in the midst thereof, and the making of a motion to suppress the deposition upon other specific grounds is a waiver of such objection.</p> <p>2. Sec. 18 of the Schedule of the Constitution of Illinois, requiring judicial proceedings to be in the English language, warrants the taking of depositions in a foreign land in the tongue thereof.</p> <p>3. Where.a commission issued from this country in the English language to a foreign country is returned with the answers of the witness written in the language thereof, the same may be translated, and the translation given in evidence, but such translation may be shown to be erroneous.</p> <p>4. An instruction setting forth that the preponderance of the evidence is determined by the number of witnesses on each side, where the opposing witnesses are equally credible and equally well corroborated, and have no greater interest in the result of the suit, should not be given.</p>

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

<p>Railroads—Embankment—Overflow of Lands—Limitations.</p> <p>1. One of the main tests as to whether an amended count is the statement of a new cause of action or a re-statement of the one contained in the original count, is whether a recovery, if had on the original count, would bar the cause of action set up in ihe amended count.</p> <p>2. A railroad company is not only bound to build its railroads and structures according to good railroading in respect to its own interest, but must take care that the interests of others are observed.</p> <p>8. All damages arising from not building a railroad in a proper and skillful manner, are continuing damages, and may be sued for andrecovered by a grantee of premises against a railroad company, or other person or company, for continuing the improperly constructed structure after such grantee acquires title.</p> <p>4. In the case presented, this court holds that the statute of limitations was improperly pleaded to the fifth and sixth counts, whereby the declaration was amended, for the reason that they were a mere re-statement of the cause of action set out in the other counts thereof.</p>

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

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

<p>Gift—Loan—Evidence.</p> <p>1. The testimony of any witness should not be rejected unless the witness has wilfully sworn falsely, and such evidence is uncorroborated by other competent evidence in the case, and in that event the jury may disregard it.</p> <p>2. Unimpeached evidence must not be rejected by the jury, but must be weighed in connection with all other evidence in the case, and if it can not be reconciled with the other evidence which the jury finds to be truthful, it must give way to the better evidence.</p> <p>S. In an action brought to recover a certain sum alleged to have been loaned defendants, they contending it to be a gift, this court declines to interfere with the judgment for the plaintiff.</p>

<p>Appeal from the County Court of La Salle County; the Hon. Benjamin F. Lincoln, Judge, presiding.</p>

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

<p>Dram Shops—Ordinance—License—Agency—Instructions.</p> <p>1. The provisions and not the title of a given ordinance must be looked to in order to see to what class of persons it applies.</p> <p>2. There is no such thing as an agency in crime. The employer is as guilty as the agent, and is an accomplice before the fact, and under the law, a principal as to what he does by his agent.</p> <p>3. In an action brought to recover for an alleged violation of a municipal ordinance against selling liquors without a license, the defense being that the liquor sold, was sold and delivered in a neighboring city, this court holds, in view of the evidence and the giving of certain erroneous instructions, that the judgment for the defendant can not stand.</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 Knox County; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Dram Shops—Means qf Support—Injury to—Evidence—Instructions— Damages.</p> <p>1. In a case where the facts and legal questions involved are few and simple, care should be taken that the instructions are not unnecessarily numerous and prolix.</p> <p>2. To warrant the giving of exemplary damages in actions brought to recover under the Dram Shop Act for loss of support, the proofs must show actual damage sustained, and aggravating circumstances attending the sale or giving of the liquors.</p> <p>3. The selling to a man whom the seller knew to be in the habit of getting intoxicated, and the continuing to sell to one already intoxicated, so that the intoxication was increased and prolonged, would, in either instance, constitute a selling under aggravated circumstances within the meaning of the foregoing rule.</p> <p>4. This court holds that the sales to the person in question were made under such circumstances as to warrant the awarding of exemplary damages; that the verdict for $2,000 could not be regarded as excessive even as actual damages to the plaintiff’s means of support, and declines to interfere with the judgment in her behalf.</p>

<p>Master and Servant—Negligence of Master—Injury to Servant—Unguarded Elevator Shaft—Contributory Negligence—Evidence—Instructions— Witnesses.</p> <p>1. The term “ common run of people ” does not mean “ reasonably prudent men.”</p> <p>2. An employe should use the care ordinarily exercised by reasonably prudent men under similar circumstances, to avoid injury while engaged in a given employment.</p> <p>3. An instruction telling the jury in effect that the plaintiff was not guilty of negligence upon a given occasion, unless he had actual or constructive notice of (he condition of the appliance that caused a given injury, is an invasion of the province of the jury and should not be given. Whether the plaintiff was at the time exercising ordinary care, is an issue to be passed upon, as much as whether the defendant was guilty of negligence.</p> <p>4. While the rule is general that a party will not be allowed directly to discredit his own witness, there is an exception where the witness does not state the facts on the trial, as he stated them on the examination preparatory to trial, and his testimony is unfavorable to the party calling him. Where the party has been deceived by (he conduct of his witness, he may interrogate him as to the previous statements for the purpose of refreshing his recollection if he is a forgetful witness, or for the purpose of probing his conscience, and move him to relent and speak the truth, if he be a perverse one.</p> <p>5. If the witness denies having made statements previous to the trial, contrary to his statements upon trial, after his attention is called to the time and place of making them, they may then be shown by other witnesses, not for the purpose of being used as substantive evidence, but for the purpose of setting the party right before the jury, and showing that he has been surprised or entrapped.</p>

<p>Stallion—Injury by—Owner's Liability for—Contributory Negliaence —Enclenco.</p> <p>1. The owner of a stallion or other domestic animal is bound to take, notice of the general propensities of the class to which it belongs, and if such propensities are of a nature to cause injury, he must anticipate and use reasonable care to guard against them. He is under no obligation to guard against injuries which he has no reason to expect from the animal, either on account of such propensities in general, or some disposition thereof, of which he has notice.</p> <p>2. If an animal is disposed to attack mankind and the keeper has notice of the dangerous propensity, the public safety demands that if he keep the animal at all, he shall keep him secure.</p> <p>3. After notice, the keeper of such animal is responsible for all injuries occasioned by such attacks, and the fact that he endeavors to so keep the animal as .to prevent the mischief, will not protect him if he fails. The gist of the action is not the manner of keeping the vicious animal, but the keeping him at all with the knowledge of the vicious propensity.</p> <p>4. A person exercising ordinary care, injured by an animal on account of negligence of its owner in securing the same, may recover, but in case the animal was vicious and the owner knew it, in order to recover it is not necessary to prove a want of care in methods of stabling or fastening.</p> <p>5. This court holds as erroneous the admission of certain evidence upon the pretense of impeachment, touching the opinion of a wilmss that plaintiff did not use ordinary care to avoid injury.</p>

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

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

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

<p>Mortgages—Mortgagee in Possession—Duty of—Waste.</p> <p>1. A mortgagee in possession is responsible for losses occasioned by his gross negligence or wilful default, but he will not be held accountable for anything more than the actual rents and profits received from property in the possession of tenants unless there has been such default or negligence on his part, and where neither such default nor negligence is proved, the mortgagee is to be held to have exercised the reasonable diligence required of him.</p> <p>2. If offers were made in a given case, the rejection of which would create a liability to account for increased rent lost in the particular instances, such facts will afford no justification for charging more than the amount so lost, or for going back and making a general charge of rental values for a series of years.</p> <p>3. A mortgagor residing near such property, with opportunity of knowing how the property was rented or managed, should take an interest in it, afford his aid and advice, and communicate any cause of dissatisfaction to the mortgagee.</p>

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

Dorrance Dibell, Judge, presiding. On the 14th day of February, 1889, Levi Snyder, a resident of La Salle County, died intestate, leaving surviving him his widow (the appellant) and his children, Levi F. Snyder, Edward M. Snyder, Mary L. Westgate and Anna Eliza McGinnis, as his only heirs. He left an estate consisting chiefly of personal property, out of which appellant would receive §8,000 or $10,000.

<p>Appeal from the County Court of DuPage County; the Hon. David B. Sherwood, Judge, presiding.</p>

<p>Attorney and Client—Services Rendered—Recovery for—Contract.</p> <p>1. An attorney’s right to recover compensation for services alleged to have been rendered a given party, must rest upon some contract, express or implied, or created.by law, which would render such party liable to him.</p> <p>2. Knowledge that an attorney was engaged in the business of a given party, will not raise an implied contract on the part of such person to pay therefor, he having entered into a written contract with the business partner of such attorney to attend to such business, the understanding being that he was to pay for services rendered by third parties.</p>

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

<p>Mandamus—Certificate of Attendance, etc., of Juror—Issuance of-? Drainage Act as Amended,, Sec. 17J¿.</p> <p>1. In the absence of a statutory enactment providing for the payment by a county of the personal expenses of jurors in the performance of their dutjj, they are not entitled to certificates providing therefor.</p> <p>2. As a governmental agency, the county where a given court is located is required to bear the expenses of jurors in drainage cases, irrespective of the fact that a given district lies in several counties.</p> <p>3. The burden of maintaining courts, with the attendance of jurors and officers and other incidental expenses, without reference to the residence of the litigants, or whether the litigation is beneficial to the county or otherwise, rests upon such county.</p>

Lawrence W. James, Judge, presiding. On the 1st day of August, A. D. 1889, Joseph F. Gebke was a dealer in clothing and carried on his business in the city of Peoria in two stores.

<p>Replevin—Bond—Action of Debt on—Practice Act, Sec. 2.</p> <p>1. Sec. 2 of the Practice Act applies only to those residing and served with process out of the county where the suit is brought, and who do not appear and defend the action, nor can it make any difference in such case that suit was dismissed against the only defendant residing in the county where the suit was brought and judgment rendered against the non-resident defendants, they having appeared and defended the action.</p> <p>2. A plaintiff in a replevin suit, having dismissed the same, can not contest the right and title of the sheriff who sues upon the bond (the goods not having been returned, although a retorno has been awarded) for the usé of a constable who had levied upon a given stock in behalf of various creditors, to the extent of their value to cover all the judgments and costs under the constable^ executions. He can only show his own title to the goods by way of mitigation of damages. If the goods were worth more than the constable’s lien upon them, he may, by proof of title, mitigate damages to that extent.</p> <p>3. The proof of value of articles replevied may be made by the judgment and opinion of witnesses, they being subject to full cross-examination as to the basis of their opinions.</p>

<p>Trespass—Search Warrant—Justice—Jurisdiction of—Justification—Plea of—Evidence—Instructions.</p> <p>1. A justice has jurisdiction to issue a search warrant upon the making of a proper affidavit therefor.</p> <p>2. In such case the magistrate is the judge of the sufficiency of the affidavit presented to him, and the complaining witness is not responsible for the correctness of such judgment. He is liable only for his own act in setting the magistrate in motion, if that act be malicious and without probable cause, and such liability can only be enforced in an action on the case, for trespass will not lie for an act done under legal process regularly issued from a court, or by an officer of competent jurisdiction.</p> <p>3. If a magistrate does not require a sufficient affidavit from the complaining witness, he can not, on that account, be held liable for a trespass ri et armis.</p> <p>4. Where there is no plea of justification on file, its absence will cut no figure, the plaintiff having offered an instruction, which was given, touching the effect of the warrant as a justification, proof, likewise, having been made without objection, of the circumstances touching the issuing of the same.</p>

Dorrance Dibell, Judge, presiding. In January, 1888, the minor son of appellee, for the purpose of learning the trade of tinsmith, entered the service of appellants for the period of three years upon the following terms: His wages were to be for the first year $4 per week, for the second year $5 per week, and for the third year $6 per week; §1 was to be retained from each week’s wages to insure good behavior and faithful performance on the part of the boy for the period of…

<p>Dogs—Purchase Price—Recovery of—Implied Warranty.'-</p> <p>This court, in view of the evidence, affirms a judgment for the defendant in an action brought to recover the price of a dog, said dog having been sold with an implied warranty that the animal was good for breeding purposes, and holds that the dog was utterly worthless for that purpose, and of no value.</p>

<p>Railroads—Negligence of—Crossings—Personal Injuries—Contributory Negligen ce—P leading.</p> <p>1. All persons must exercise care to avoid injury.</p> <p>2. Though care on behalf of the plaintiff in a personal injury case may be charged in the declaration generally, the proof thereof to sustain it may be made up of many circumstances. If his care is not averred in the declaration, it must nevertheless be proved.</p> <p>3. It is not necessary in pleading to set out every circumstance specifically. It is sufficient, and the better practice, to set out the cause of action in a general way. It is not necessary to set out all the facts tending to show negligence. The pleader may characterize any action as having been done negligently, but need not show all the various facts from which negligence may be deduced.</p> <p>4. In an action brought to recover for a personal injury, alleged to have been received through the negligence of a railroad company at a crossing, this court holds that reasonable care was exercised by the person injured upon the occasion in question; that the. servants of said company were negligent in backing down its train in front of the horses being driven by him; that a certain instruction given for the plaintiff was applicable under the fifth count of the declaration herein; and declines to interfere with the judgment for the plaintiff.</p>

<p>Railroads—Negligence of—Killing of Stock—Colt—Insufficient Fence —Change in after Accident—Farm Crossing—Gate—Attorney's Fees— Practice—Evidence.</p> <p>1. Evidence in an injury case touching repairs to that which caused ■ a given injury subsequent to the occurring thereof, should not be received, its purpose being to show that the defendant regarded the same to be insufficient.</p> <p>2. If there be nothing in a given case to raise an inference of a change in condition subsequent to the injury, it will be competent to prove such condition shortly after the injury, within such time as will tend to establish the condition at the time of the injury.</p> <p>3. If there be evidence of a condition shortly after the injury different from that claimed to exist at the time of the injury, it will be competent to show that such condition was a changed one, made better or worse after the injury by repair, accident or other cause.</p> <p>4. A farm crossing is an easement over the track of a railroad, while a gate is a part of the fence which is required to be placed wherever there is such farm crossing.</p> <p>5. This court has appellate jurisdiction only, and the question of what would be a reasonable attorney’s fee is one of fact, upon which one is entitled to a trial by jury. A motion for an allowance of attorney fees in this court, the motion being taken with the case, comes too late, the same being made after the court has taken the case for determination.</p>

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

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

<p>Negotiable Instruments—Checks—Consideration—Gaming.</p> <p>1. A bank check in this State transfers the money of the drawer in the bank to the drawee, the moment the check is delivered, and from that moment it ceases to be the property of the drawer and belongs to the drawee or his assignee.</p> <p>2. The payee of checks drawn upon the funds of a firm, by its agent, authorize! to so draw in business matters, must be held to have received such firm’s money on a gambling debt, where the checks were given to cover the losses of such agent through gaming.</p> <p>3. In an action brought by a firm to recover for money lost at gaining by one of its employes, this court holds that defendant can not be allowed credit for any payment made by such agent on account of such transactions, or because the agent won a sum from him, and affirms the judgment for the plaintiffs.</p>

<p>Judgments—Advancement of Payment of—Partnership—Debts of — Practice.</p> <p>1. The equitable rule which requires the assets of a firm to be first applied to the payment of firm debts, is founded, not upon the equities of the creditors, but upon the equities of the partners, and such equities can only be worked out through them.</p> <p>2. A creditor of a given firm can not raise the point that one partner did not authorize another partner to sign a power of attorney to confess judgment upon a note given to another creditor.</p> <p>3. Upon a motion by a creditor of a firm named, to advance the payment of the judgment of such creditor against such firm, as against three previous judgments in behalf of other creditors thereof, this court declines, in view of the evidence, to interfere with the judgment denying the same.</p>

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

<p>Railroads — Negligence — Personal Injuries — Evidence — Practice— ’ Holder of Stock Pass.</p> <p>1. Carriers may contract for exemption from responsibility .for all negligence except that which is gross.</p> <p>2. The plaintiff in a personal injury case must recover, if at all, upon the negligence charged in the declaration, and not upon something not charged and of which defendant has had no notice.</p> <p>3. In the case presented, this court holds that the plaintiff’s injury was occasioned by his own want of attention and care for his own safety, and that- the judgment in his favor can not stand.</p>

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

<p>Trust Deeds—Sale under—Bill to Redeem.</p> <p>Upon a bill filed for leave to redeem certain lands from a sale under a trust deed, the cause having twice been before the Supremo Court, this court holds, in view of the decisions therein, that the action of the trial court in allowing redemption upon the payment of principal and interest alone was proper.</p>

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

John D. Crabtree, Judge, presiding. On March 21, 1881, Peter Bressler executed three mortgages on his lands in sections 7, 8,17 and 18, town 21 27., range 7, to the .¿Etna Life Insurance Co., to secure the payment of sums aggregating $20,700. On May 20, 1881, he mortgaged the same lands to Adam Smith, to secure the payment of his four notes, the first two for $1,500, which were assigned to Henry Smith.

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

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

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

<p>Negotiable Instruments—Alteration—Evidence—Instructions.</p> <p>1. Proof of the execution of an instrument sued on is not under our statute necessary as at common law, unless that issue be raised by a verified plea denying its execution.</p> <p>2. Where the genuineness of the signature is not denied, but the defense is that the instrument has been altered since it was signed, a plea setting out in detail the alleged alteration is more appropriate than to attempt to raise the point by filing a verified plea denying its execution.</p> <p>3. A material alteration made in a note by the payee after its delivery by the maker, without his consent, renders it void, and this rule governs where the alteration is made by the payee’s consent although not by him personally.</p> <p>4. While at common law the rule was that if the alteration in a written instrument was a material one, it could not be received in evidence, no matter by whom the alteration was made, an alteration made by a stranger is now regarded as a spoliation, and secondary evidence is admissible to show the original condition; but to admit such evidence, it must first be shown that the change in the paper was not by the acts, assistance or even the laches of the holder.</p> <p>5. An alteration by or with the consent of the holder, if material, destroys a given note as evidence as effectually, though innocently done, as if done with fraudulent intent; but if innocently done, though the instrument is destroyed, the original debt remains and recovery may be had upon it.</p> <p>6. It is only when an attempt is made to abandon the instrument as evidence, and recover upon the original indebtedness or consideration, that it becomes important to inquire as to the intent with which the alteration was made, for the reason that the written instrument, being the best evidence of the contract or undertaking of a party, must he produced or accounted for. If a party seeks to excuse its production on the ground that it has been altered since its execution, the law requires him to show why it was changed. If it appears to have been changed without wrongful intent, or from ignorance, or with good in ten', so that its validity as evidence is destroyed the law will permit recovery upon the original consideration; but if the intent was an evil or fraudulent one, the instrument is not only avoided, but the fraud or wrong bars the remedy upon the debt itself.</p> <p>7. Any alteration which, in any event, may alter the maker’s liability, change his rights, duties or obligations, is material.</p> <p>8. The addition of another maker, made with the assistance and complicity of the holder, is a material alteration and destroys the validity of a note as evidence.</p> <p>9. The admissions of a party as to a fact, no matter how made, may be given in evidence against him. Common law pleadings are admissible in evidence.</p>

<p>Railroads—Failure to Stop—Penalty—Sec. 88, Chap. 114, R. S.</p> <p>1. The statute providing that a railroad company is liable to a penalty for failing to stop any one of its trains at a given station on the liiie of its road is a penal one (the judgment rendered in such case is in the nature of a fine), and must be strictly construed, and to warrant the imposition of the punishment provided, the proof must bring the one accused of its violation, clearly within the provisions of the law. Courts have no power to extend such enactments to cases not clearly within their terms, nor can usage or custom be held to extend the terms of a penal statute.</p> <p>2. The rule applicable to the enforcement of a penal statute is, that it should be clearly made to appear that the precise statutory offense has been committed.</p> <p>3. The word “ advertised,” in common acceptation means notices printed, written, or published in a newspaper.</p> <p>4. A given station not being a county seat, unless it is “ advertised by the railroad company as a place for receiving and discharging passengers" the statute can not be invoked in case of a failure to stop.</p> <p>5. Where a station is advertised as a place where trains will only stop on signal, a failure to stop thereat because signaled to do so, or because of a contract with an agent of the company to do so, or because such train usually stopped there when requested, will not justify the infliction of the statutory penalty, though it would possibly warrant a recovery of damages suffered in case of signal.</p>

<p>Railroads—Negligence—Killing of Stock—Failure to Fence.</p> <p>'In an action brought to recover from a railroad company for the death of stock, alleged to have occurred through its failure to provide a fence, it does not establish liability to alone show that there was no fence where a fence was necessary; it must also be shown that the stock came on the track at a point where, by law, a fence was required, and that by reason of the failure so to fence, the loss occurred.</p>

<p>Fire Insurance—Homestead and Dower—Policy—Conditions—Breach —Waiver—Evidence—Instructions.</p> <p>1. A woman can not have two unassigned estates of homestead existing at the same time.</p> <p>2. A widow, who, having an estate of homestead unassigned, marries again, can not retain such estate by continuing in possession by a tenant, where her second husband has a homestead.</p> <p>3. ; The law does not impose upon a widow having an estate of homestead, the duty and obligation of preserving the buildings involved, by insurance against fire, and of applying money received from such insurance to the rebuilding thereof, in case of destruction by fire, so that the heir shall not be deprived of the inheritance.</p> <p>4. Where it is provided in a policy that the company shall not, in any event, be liable for an amount greater than a certain proportion of the value of the property covered, and that it will only indemnify assured, the jury should not be instructed that if they find for the assured they may award whatever the evidence shows the property to have been worth.</p> <p>5. Where a policy provides that assured may recover a certain percentage of her interest in given property, she may so recover although the interest is only a dower interest.</p> <p>6. In a litigation concerning the separate property of a wife, or insurance policies covering her property, her husband can lawfully testify in her behalf.</p> <p>7. A provision providing that the company will not be liable for loss by fire until the premium is actually paid, is legal, but may be waived. The burden of proving a waiver is upon the party who asserts it.</p> <p>8. To constitute a waiver of such a provision on the ground of extension of credit, so that a court will be justified in ignoring it as a part of the contract of insurance, the existence of an indebtedness from the assured to the company, for the premium, must appear.</p> <p>9. An option of taking a policy at any time during a given month, bj paying the premium thereon, is not an extension of credit, but rather r refusal of credit. Such option can not be exercised after the property has been destroyed.</p> <p>10. Evidence tending to show breaches of the conditions of a policy, in that assured was not sole owner of the property, also false and fraudulent representations in bis proofs of loss, and that the property was vacant and unoccupied when burnt, may be given under the general issue when the action is in assumpsit, and it is proper to sustain demurrers to pleas setting up the same.</p>

<p>Practice—Amendment of Record—Power of Circuit Court.</p> <p>1. Where a bill of exceptions has been stricken from the records of a given case for the reason that it was not presented within the time allowed by order of court, and the record is subsequently so amended as to allow further time for filing such bill, even if it was filed within such time, it can not be considered as a part of the record in the absence of a motion to restore the same to the record, or to rescind the order striking it therefrom.</p> <p>2. The Circuit Court has large power in respect to amending its own record, and will exercise that power with cautious freedom whenever the proper occasion occurs, but it can not make such amendments as a matter of grace or favor.</p> <p>3. A record wherein a party is given a certain time in which to file a bill of exceptions, should not be so amended as to give a further time in which to file, unless there is something to amend by, nor unless it is apparent that a clerical mistake has caused the judgment of the court, as entered, to be different from that intended by the court.</p> <p>4. Such amendment should not stand, where it is apparent from the record that the court proceeded without evidence or inspection of the minutes, or the production of any foundation whatever, to materially change an order entered some years before.</p> <p>5. Where, in such case, it appears that the court heard evidence, or inspected the minutes of the judge, or that it entered upon an investigation of any sort, the presumption will be indulged that there was enough before the court to warrant what was thereupon judicially done.</p> <p>6. A motion that such an amendment be made, should not be granted, for the reason merely that an objection was not interposed by the opposite party, who was not present, though notified to appear, the notice not containing any intimation as to the ground upon which the motion would be made.</p>

N. W. Green, Judge, presiding. This was an information in the nature of a quo warrcmto, charging appellant with usurping the office of police magistrate of the village of Tremont. Appellant justified, replications were filed, and on the trial the court found for appellees and entered final judgment on findings of ouster against appellant.

<p>Replevin—Worse—Chattel Mortgage—Conditions—Diminution in Value —Evidence—Instructions. ■</p> <p>I. A substantial, not merely a nominal diminution is intended, by a clause in a chattel mortgage authorizing the taking by the mortgagee of property mortgaged, upon the ground of diminution in value.</p> <p>2. A party can not insist that there is error in the instructions given in behalf of the opposite party, when ¡those given in his behalf are similarly worded, and in substance the same.</p>

<p>Municipal Corporations—Incurring of Liabilities by—Provisions of Incorporation Act.</p> <p>In an no ion brought to recover from a municipal corporation a sum named, plaintiffs’ claim being based upon the alleged liability of defendant to compensate them in part for the expense of building a sidewalk in front of their property therein, a motion at a meeting of the village board to allow a certain sum being passed without a call of the yeas and nays, the bill of plaintiffs in such sum being rejected at a subsequent meeting, when an allowance of one-half thereof was passed upon a call of the yeas and nays, said sum being paid, the statute under which the village was organized providing that “ the yeas and nays shall be taken upon * * * all propositions to create any liability against the city,” this court declines, in view of the evidence, to interfere with the judgment for the defendant.</p>

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

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

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

<p>Criminal Law—Assault with Deadly Weapon—Evidence—Instructions.</p> <p>1. An owner of personal property may oppose force with force to prevent the same being injured and destroyed, but not to the extent of taking life, or in excess of the necessity of the case. If he carries resistance to excess, or uses more force than is necessary, he becomes a wrongdoer.</p> <p>2. The jury were justified in the case presented in regarding the assertion of the defendant that he was only endeavoring to frighten the plaintiff in discharging his pistol, as a mere subterfuge by which he hoped to avoid a conviction.</p> <p>3. Proof as to what passed between such defendant and a person who, at the time of the shooting, was endeavoring to prevent the same, should be admitted as part of the res gestee in proceedings instituted by the person shot at.</p> <p>4. This court holds, in view of the evidence, that defendant was actuated in making the assault in question more by rage than by any real desire to protect property in his charge from a trespasser.</p> <p>5. The suggestion that the word “ at ” means “ toward, in, or near by,” and that an instruction stating that the attempted removal of certain property did not justify a party named in shooting “ at ” the party so removing, with a revolver, if the evidence shows that he did shoot at him, tells the jury that the person shooting would not have been justified in so doing “ toward or near by’’ such person, even though the intent was only to frighten him, is hypercritical, and wholly frivolous.</p> <p>6. The objection that an instruction improperly defines the legal meaning of the word malice ” should not be raised, where malice is not an ingredient of the crime of which the jury found a given person guilty. In such case such instruction, though given, can do no harm. In view of the evidence in the case presented, it is held that the fine of $300 imposed upon defendant can not be considered excessive.</p>

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

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

<p>Appeal from the Circuit Court of Morgan Countv: the Hon. Gr. W. Herdman, Judge, presiding.</p>

<p>Railroads—Negligence—Ordinance as to Speed—Crossing—Variance.</p> <p>1. The charge in a declaration that a train was run unlawfully in respect to rate of speed, will fairly include all the acts of the company’s servants thereon of a frightening character with reference to teams, if they were naturally incidental to such unlawful running.</p> <p>2. In view of the evidence, this court holds that while the whistling in question might not have been due to the rate of speed of the train, nor incidental to it as an unlawful rate, such whistling at the time and in such proximity to the team clearly was in the ease presented, and that it probably made it frightening.</p> <p>8. It is competent in such cases to admit evidence as to the rate of speed a given train was run before it reached municipal limits, where the testimony is that there was no perceptible abatement thereof after reaching the same.</p> <p>4. Whether a given person exercised ordinary care for his own safety under given circumstances, is a question of fact for the jury.</p> <p>5. This court holds, in view of the wording thereof, that the answer of the plaintiff to a question of his counsel, as to the value of his services to himself and family through time lost, could not have prejudiced Ihe defendant herein, and can not be considered an error that should reverse the judgment.</p>

<p>Practice—No Bill of Exceptions.</p> <p>A party desiring to review the decision of a given court should except to its rulings and have such exception properly preserved.</p>

<p>Life Insurance—Benevolent Associations—Boyal Arcanum—By-laws of—Dependent Person—Affianced, Wife.</p> <p>1. In chancery proceedings where the evidence is heard by, and submitted to the chancellor, it is presumed that he will give weight and consideration only to competent and proper evidence. In such cases, if it appears to an appellate court that improper evidence was admitted, the presumption is that the chancellor rejected it from consideration. Its admission is, at most, a harmless error, and a decree will not for that reason be reversed, if there is sufficient legitimate evidence in the record to support it.</p> <p>2. The laws, rules and regulations of benevolent associations are to be given a reasonable and liberal construction, and one that, so far as it may be consistently done, will advance the generous and beneficent ends and designs of the association,</p> <p>3. Where a fund would, in a certain case, come to the children of assured, as beneficiaries, they can not be said to be prosecuting or defending as heirs, their right to such fund being contested by another, and such other is a competent witness in his own behalf.</p> <p>4. Where a party, a widow, claims such fund as a dependent, evidence showing that she received no property from her husband’s estate is admissible, he not having been the person insured.</p> <p>5. The letters of deceased to such person are admissible in such case, they lending to establish dependency.</p> <p>6. The wish and desire of such deceased member ought to be observed and carried out. It ought not to be defeated by strict and technical interpretation or definition of a' given word. Such word ought to be given a meaning that will not defeat- the intention of deceased, if such meaning be not inconsistent with the use made of it in the statutes of the State in which the association was organized, and in the constitution and laws 1 hereof. The design and purpose of such statutes, and the objects and aims of the associalion and of the deceased member must be kept in view, and the word given an interpretation that is in harmony therewith, and one that will advance these purposes and designs, if it be reasonably possible to do so.</p> <p>7. In order to be deemed a dependent, it need not appear that such person has no other possible means of support. That deceased furnished some assistance is enough.</p> <p>8. In the case presented, this court holds that an affianced wife must be looked upon as a dependent within the terms of the contract of insurance.</p>

<p>Railroads — Negligence—Personal Injuries—Unnecessary Whistling and Letting off Steam—Frightening of Team—Evidence—Instructions.</p> <p>1. Where a man and wife and team are at a railroad station, she in the vehicle, he out, both she and the team are in his care, and a want of ordinary care on his part, contributing to an injury suffered by the wife, would have the same legal effect as if it were her own, and bar a recovery, unless the injury was wilfully inflicted.</p> <p>2. Whether there was want of such care on the husband’s part in a given case, is a question of fact for the jury.</p> <p>8. If it was a fact in a given case that the servants of a railroad company did “ unnecessarily ” blow the whistle or let off steam in close proximity to a team, it would not necessarily follow, as a matter of law, that it was wrongful negligence.</p> <p>4. An instruction invading the province of the jury should not be given.</p>

<p>Fire Insurance—Policy—Conditions—Waiver— l’itle—Proof of Loss— Practice—Estoppel.</p> <p>1. If an insurance company, after notice of a loss and with full knowledge of the facts, resolves not to pay, and places its refusal on the distinct ground of non-liability, formal proofs of loss must be considered waived.</p> <p>2. Likewise where refusal to pay is based on the ground that assured had no insurable interest in the property at the time of the loss.</p> <p>8. A waiver of a condition in an insurance policy, declared and raised by the law as the legal result of acts done, and facts proven, does not need the.consent or acquiescence of the company or any of its agents.</p> <p>4. To constitute an estoppel, there must be a r 'presentation concerning material facts, and the party to whom it was made must have been ignorant of the truth of the matters.</p> <p>5. The objection that there is a variance between the proof and the declaration, can not be primarily made herein.</p> <p>6. An executory contract of sale without change of possession does not constitute a change in, or transfer of, the title.</p> <p>7. Provisions in -policies of insurance providing that they shall become void if there be a change in the title of the properly insured, are to be construed strictly.</p> <p>8. This court holds, in view of the evidence, that the title to the property in question was neither “mortgaged or incumbered ” by the giving of the executory contract of sale involved.</p> <p>9. Although at the time of a given fire the owner of properly insured has outstanding a contract for the sale of the same, there remains in him an insurable interest, and a right of recovery exists as to the extent of such interest.</p>

<p>Schools—Control of School Houses—Sec. 39, Chap. 122, R. S.—Removal of School House by One Director—Bill to Enjoin—Practice.</p> <p>1. The supervision and control of school houses being vested by Sec. 39, Chap. 122, R. S., in school directors, one director- of a given district may he restrained, upon a bill filed by the others, from raising and removing to another site the school house of such district.</p> <p>2. The question of whether a school house should be removed to a given site, or if at all, can not be decided by one director, but must be settled by a majority of them.</p> <p>3. The fact that the hill in such ease is not sworn to by any of the directors, but by a person who is a resident and tax payer of (he district-, cuts no figure, as such persons are proper parties in cases of this sort.</p>

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

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

<p>Jurisdiction—Courts of Chancery—Injunction—Limitations.</p> <p>1. It is an essential condition of the jurisdiction of courts of chancery to restrain proceedings at law, that the party complained of is exercising an unfair advantage by his proceedings which must necessarily produce injustice, and that it is therefore against conscience that he should make use of such advantage.</p> <p>2. Such jurisdiction may be extended so as to stay proceedings in another State or a foreign country, not by attempting to direct or control the foreign court, but by operating in personam upon the parties to the suit when they are resident within the territorial limits of the court whose power is invoked: and without regard to the situation of the subject-matter in dispute, chancery will consider the equities between the parties and decree in personam according to those equities.</p> <p>3. Such jurisdiction will not be exercised unless to prevent an inequitable and an unconscionable result, likely to flow from the use of the advantage about to be obtained in the proceedings at law.</p> <p>4. As a general rule, if one by the laws of a given State may inherit properly, he holds it subject to the laws thereof with reference to the collection of debts.</p> <p>5. Upon a bill filed, praying for an injunction to restrain the prosecution of an attachment suit begun in another State on certain notes, the same being barred by the statute of limitations of this Slate, this court holds, in view of the evidence, that the equities are against the decree in behalf of complainant, and reverses the same with directions to dismiss the bill.</p>

<p>Principal and Surety—Debt on Bond—Town Collector—Sec. 36, Chap. 53, P. S.—Expenses of Office.</p> <p>1. Compensation for official services rendered in behalf of (he State or a public corporation, must rest alone upon statutory enaclment. An officer can recover for services if payment therefor be provided for by the statute, otherwise not, and can have in any event only such amount as may be allowed by the statute.</p> <p>2. Where the law requires that any sum collected by town collector in excess of a sum named must be paid into the town treasury, he can not apply the same to the payment of the expenses of his office, and a failure to turn over such moneys amounts to a breach of his official bond.</p> <p>3. The additional compensation made possible by Sec. 36, Chap. 53. R. S., is not to be arrived at by the decision of a jury, but is to be obtained only by the action of the town or county board, as the case may be.</p>

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

<p>Sales—Stallion—Warranty—Breach—Rescission—Damages—Custom.</p> <p>1. If a seller in case of an absolute, completed and unconditional sale warrants an article sold to possess certain desirable qualities, a breach of such warranty does not annul the sale, nor has the buyer for that reason either right or power to return the same and reinvest the seller with its ownership, but must resort to his action for damages.</p> <p>2. If the seller acted fraudulently in accomplishing the sale, or if it be shown that he bad knowledge that the warranty was false when he made it, the buyer may return the property and demand a rescission.</p> <p>3. In an action brought to recover for an alleged breach of a written warranty of a stallion, this court holds that the same was an absolute warranty as to certain qualities, and that the buyer had the option of an action on the breach for damages, or to return the horse and receive another in his stead.</p> <p>4. This court also holds, that extrinsic evidence should not be admitted in a given case touching the subject-matter of a written contract that is not ambiguous, indefinite or unintelligible, and does not contain any word or phrase that has a special business or trade meaning.</p>

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

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

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

Alfred Sample, Judge, presiding. The town of Normal in McLean County, at a special town meeting on the 22d day of June, 1889, determined to erect a town hall and ordered that a levy sufficient to raise $6,000 be made for that purpose. A committee of five was appointed, and empowered to select and purchase a site for the hall, and to supervise the construction of the building, and exercise the usual powers of a building committee.

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

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

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

<p>Administration—Citation to Settle—Judgments and Decrees—Interest— Eciden ee—Pra ctiee.</p> <p>1. The judgment of the County Court upon the report of an administrator is a separate judgment upon each item therein, and an appeal from such judgment brings up only the items appealed from.</p> <p>2. The dismissal of an appeal in (he Circuit Court as to certain items of such account, leaves the judgment of the County Court standing as to them, and binding upon both parties.</p> <p>8. An administrator can not refuse to account for a fund arising out of Ihe estate of his intestate, although it rightfully belongs to the widow, she having directed him to receive the same and apply it on the debts of the estate.</p> <p>4. It is the duty of an administrator to report the personal property of his intestate to the court, and dispose of the same, under its order; failing in this, he should be charged with its value.</p> <p>5. An estate should not pay for the services of an attorney rendered its administrator as an individual.</p> <p>6. An agreement between the parties to a given suit that depositions previously taken shall be evidence upon trial, amount to a waiver of a failure to give notice of the time and place of taking the same.</p> <p>7. An objection to the admission of the evidence of a party named, should not first be raised herein.</p>

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

<p>Contracts—Construction qf.</p> <p>1. In construing a contract, wliat the parties to the same meant and understood the same to mean should, if possible, be ascertained. The actual meaning of the parties is to be ascertained and adopted, if the words they saw fit to employ and the rules of the law will permit.</p> <p>2. The situation of the parties at the time, and the situation and condition of the property which is the subject-matter of the contract, and the intention and purposes of the contracting parties, may all be taken into consideration if there is any uncertainty as to its meaning.</p> <p>3. A reasonable construction is to be sought for and given, and one that will give the contract the sense in which the party making the promise believed the other party understood and accepted it. The final question to be determined is what, by a fair and reasonable interpretation of the words and acts of the parties, was the bargain between them.</p> <p>4. In an action brought to recover the amount of an assessment for drainage purposes, paid by plaintiff in redeeming certain lands from sale under a tax judgment, from the person purchasing the same during the pendency of a litigation involving the legality of such as-essment, a certain written agreement having been entered into between them at the time of the sale touching liability for such assessment, this court construes the same, and declines, in view of the evidence, to interfere with the judgment for the plaintiff.</p>

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

<p>Appeal from the Comity Court of Jersey County; the Hon. A. M. Slaten, Judge, presiding.</p>

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

<p>In error to the County Court of Fulton County; the Hon. W. S. Edwards, Judge, presiding.</p>

<p>Negotiable Instruments—Notes—Consideration—Failure of—Notice— See. 9, Chap. 98, R. S.</p> <p>1. A person taking commercial paper before due for a valuable consideration, without knowledge of any defect of title and in good faith, holds the same by a valid title.</p> <p>2. Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker, will not defeat his title. Bona fides should be the decisive test of the holder’s rights.</p>

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

<p>Contracts—Breach by County Supervisors—Employment of Poor-House Keeper.</p> <p>Upon the ground of public policy, a county board is incapable of appointing a poor-house keeper for the term of three years.</p>

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

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

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

Alfred Sample, Judge, presiding. Bill filed June 30, 1890, by John Wilson, plaintiff in error, recites that he is a resident of Ford County, Illinois, and for twenty years last past lias been the owner in fee of the S. E. J- of Sec. 24, Township 24 Forth, Range 9, East of the 3rd P. -M., in said county; that along the east side thereof, running north and south, is a highway, on the line between the connties of Ford and Iroquois; that said highway is under the jurisdiction…

<p>Administration—Debts—Sale of Real Estate for Payment of—Presentation of Claim for Allowance—Sec. 70, Chap. 3, R. S.—Deficiency.</p> <p>1. A debt included in a report made by an administrator to the County Court, estimating the deficiency of personal estate to pay debts, an order directing an application for a decree for sale of real estate being requested, is not “ exhibited to the court ” within the meaning of Sec. 70, Chap. 8, R. S.</p> <p>2. It is not necessary to make the administrator of a mortgagor a party to a bill of foreclosure, except where he has an interest in the equity of redemption, as where the mortgage is upon a chattel interest, or where the bill seeks not only a foreclosure, but a decree for any deficiency against the personal estate, and though an administrator may redeem from a sale of mortgaged premises under a decree of a court of equity, it does not follow that he is a necessary party to such a bill.</p> <p>3. A debt evidenced by a note secured by a mortgage not presented as a claim against an estate within two years from the appointment of the administrator can not be said to be properly established as such claim, though proceedings to foreclose were instituted within two years, a decree of foreclosure being entered after such time had elapsed, in which was set forth the amount due, the administrator being ordered to pay the same within a time named; such requirement of payment is not to be regarded as for any purpose of a decree or adjudication affecting the assets in the hands of the administrator. While the personal estate is primarily liable for the payment of the debt, the heir must enforce the right to have the real estate exonerated by a bill in his own favor against the administrator.</p> <p>4. A decree in such case finding a deficiency in a certain amount after sale, but not ordering payment, can not be looked upon as a decree against the administrator.</p>

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

Owen T. Reeves, Judge, presiding. This was a bill in chancery filed by defendants in error against the plaintiffs in error and others.

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

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

<p>Certiorari~Schools—Boundary of District.</p> <p>1. A writ of certiorari will only issue, when a court, upon investigation, and in the exercise of sound, legal discretion, can see that justice requires it.</p> <p>2. Upon a petition for a writ of certiorari to require the trustees of schools of two townships and the superintendent of schools of the county in which they are located to send up for review the proceedings by which the boundary of a district had been changed, this court holds that the writ was properly refused; that, the district in question had full notice of the proceedings, and declines to interfere with the judgment against the petitioner.</p>

<p>Limited Partnerships—Insolvency of—Preferences — Costs— Fees — Practice.</p> <p>1. Upon a bill filed to set aside judgments by confession against a limited partnership and to subject the firm property to payment of debts, this court holds that the evidence fully established the fact that the judgments complained of were confessed in contemplation of insolvency and for the purpose of preferring certain creditors, and were contrary to Sec. 22, of Chap. 84, R. S.</p> <p>2. The cutting up of claims in the case presented into notes of the amount of $200 each, upon which judgment was taken in a justice’s court, was for the purpose of preferring creditors and contrary to said section.</p> <p>3. Likewise as to judgments taken in justice's court on claims of less than $2t0 under the same circumstances.</p> <p>. 4. When parties are contending for priority as to the assets of an insolvent firm, one set of creditors can not be compelled to pay a pro rata share of fees of solicitors for complainants in a bill adverse to them, or in which they do not choose to join.</p> <p>5. A fee of $25 was erroneously allowed to a special master for drawing a decree in the case presented.</p> <p>6. The fact that parties holding judgment by confession sought to secure a preference contrary to the statute and failed, is no reason why they should be postponed to other creditors.</p> <p>7. A purchaser of claims against the insolvent firm at a discount, held, entitled to hold them at their face.</p>

<p>Practice—Supplementary Bill—Filing of.</p> <p>1. A party proceeding to a decree upon an original bill, after a discovery of the facts upon which a new claim is founded, will not be permitted afterward to file a supplemental bill, in the nature of a bill of review founded on such facts.</p> <p>2. If such facts are unknown at the time of filing the original bill, they ■ should be brought into the case as soon as practicable after the discovery thereof, either by amending the original bill if they existed at the time the original bill was filed, or by supplemental bill, if such new matter arose afterward.</p>