Volume 45 — Illinois Appellate Court Reports

<p>Appeal from the Circuit Court of Livingston County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>In error to the Circuit Court of Bock Island County; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Separate Maintenance—BUI for— Sufficiency of Evidence to Maintain—Divorce.</p> <p>In order to sustain a bill for separate maintenance, it is not necessary in all cases that statutory grounds for a divorce should exist. It is sufficient if a persistent, unjustifiable course of conduct on the part of the husband, necessarily rendering the life of the wife miserable, be shown.</p>

<p>Conditional Sale — Reaper—Breach of Condition — Instructions— Waiver—Practice.</p> <p>1. In an action brought to recover the value of a reaper sold to the defendant upon the condition that it would do work satisfactorily to him, this court holds, that upon the weight of the evidence, the condition had not been complied with, and that the machine had been properly rejected by the defendant.</p> <p>3. The court in one of its instructions having ignored the conditions, shown by the evidence, under which the machine was retained by the defendant, committed error.</p> <p>3. It is for the court to state to the jury what acts or class of acts would amount to a waiver; whether these acts have been shown by the evidence is for the jury.</p>

<p>Trespass—Stock—Growing Crops— Change of Venue—Appeal and Error.</p> <p>1. A petition for a change of venue on the ground of undue influence of plaintiff and his attorney and prejudice against defendant and his attorney, held to have been sufficiently replied to by the affidavits for the defense, the specific facts which it was claimed were not denied, in no way establishing the charge of the petition.</p> <p>2. The error, if it was such, of the court in admitting evidence of trespasses outside the dates alleged in the declaration, was cured by an instruction to the jury excluding such evidence from their consideration.</p>

Dorrance Dibell, Judge, presiding. On March 3, 1883, Ferdinand II.

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

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

<p>Garnishment of Same Fund by Several Judgment Creditors—Answers of Garnishee—Authority of Attorney■—Judgment for Attorney's Fee—• Entry of Judgment in Appellate Court.</p> <p>. 1. Where appellant was served with garnishee process upon several judgments against appellee, and in its answers failed to set up the fact that the judgments aggregated more than the amount it owed appellee, and as a result was compelled to pay to appellee’s creditors more than the amount due appellee, held, that appellant could not set up such excess against appellee in an action brought by him to recover a debt subsequently accrued.</p> <p>2. It was not within the power of appellee’s attorney, by virtue of his authority as such, to authorize the payment by appellant to the garnisheeing creditors of the amount in excess of its debt to appellee.</p> <p>3. The including iii the judgment of the court below, of an attorney’s fee, was improper, the statutory conditions not having been complied Avith.</p> <p>4. The facts being undisputed, judgment is entered in this court for the amount due.</p>

<p>JSeal Property—Judicial Sale—Title.</p> <p>1. There is no warranty of title at a judicial sale. The validity of the title is at the purchaser’s risk.</p> <p>2. As there is no warranty on the part of the sheriff making such sale, neither is there any implied on the part of the execution creditor.</p> <p>3. If a purchaser at such sale obtains no title by his bid, he can have no remedy in the absence of fraud or misrepresentation as to title, and then only in equity.</p> <p>4. A judgment creditor is not bound to refund to such purchaser the amount paid at the sale in such case, there being no fraud or misrepres.ntation.</p> <p>5. Where an execution creditor, for the purpose of , obtaining satisfaction. purchases real estate at a judicial sale, under the execution, to which the execution debtor had no title, the court from which the process issued may, on motion, before the sale has ripened into a deed, set aside the sale and satisfaction on the ground that the satisfaction was obtained without consideration.</p>

<p>Appeal from the City Court of the City of Elgin, Illinois; the Hon. R. P. Goodwin, Judge, presiding.</p>

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

<p>Courts—Instructions—Verdict—Witnesses.</p> <p>1. In counties where the offices of county judge and probate judge are vested in one person, a filing of an information with the, county clerk during a probate term, or with the judge at such term, would be a filing in vacation within the sanction of the statute.</p> <p>2. The spirit and intention of the law in the use of the word “ instruction ” is, that reference is only had to the statements of the law made by the court to the jury, and which are to govern them, as a matter of law, as to the substance of their verdict. Such instructions must be in writing, and they can not be modified, altered, enlarged or diminished orally.</p> <p>3. The verdict of a jury will not be set aside for improper remarks made by the trial judge, not prejudicing the defendant's case.</p> <p>4. The fafct that a witness is a detective and was employed to aid in bringing criminals to justice, should not discredit his testimony.</p>

<p>Principal and Surety—Debt on Bond—Action of—Constable—Pleading,</p> <p>1. In an action of debt on the bond of a constable, it being alleged that he used more, force than was necessary, lawful or proper, in the execution of a writ, tlie declaration must show, by facts and circumstances stated, that the injury complained of was done by color or by virtue of his office. It is not enough to make a general charge that the act was done by color or by virtue thereof. The facts and circumstances must be stated so as to show that it was so done, and so that the court can see that the defendants on the facts stated are liable.</p> <p>2. No action can be maintained upon such bond, where such officer, levying an execution upon the property of a married man, made an unprovoked assault, unconnected therewith, upon the debtor’s wife.</p> <p>3. There can be no inferences drawn to help out a declaration not legitimately arising from the facts stated therein. All intendments are held most strongly against the pleader, and only those facts well pleaded are admitted by a demurrer.</p>

<p>Appeal from the Circuit Court of Iiankakee County; the Hon. C. E. Stake, Judge, presiding.</p>

<p>Railroads—Negligence—Cattle Guard—Evidence—Instructions.</p> <p>1. The statute requires that railroad companies shall construct cattle guards that shall be reasonably sufficient, and will be enough to turn ordinary stock.</p> <p>2. An instruction setting forth in substance that such company was liable for constructing a guard that did not prevent stock, no matter how breachy, from getting on the track in a certain case, should not be given.</p>

Doreanoe Dibell, Judge, presiding. On the 12th of Hay, 1888, Martin C. Bissell, appellee’s testator, died at Joliet, Illinois, leaving an estate valued at $180,000, about equally divided between personalty and realty. Appellant liad been connected with Bissell in the management of his capital from the 1st of December, 1868, until the date of his death, a portion of the time under parol agreements and a portion of the time under written agreements.

<p>Statute of Frauds—Administration.</p> <p>1. A court of equity will not enforce a parol agreement when it is obnoxious to the statute of frauds even if performed, unless the evidence both as to its terms and the facts necessary to take the case out of the statute, is clear and convincing. If any doubt remains it should not be enforced.</p> <p>2. Upon a bill filed against the executors of the estate of 4 deceased person, wherein it is claimed that a sum of money is due complainant by virtue of a parol contract existing between him and the deceased, whereby the former was to transact the business of the latter during his life for a certain compensation, this court holds, that the evidence fails to show such a contract, that the contract as made was within the statute of frauds, that the case is not taken out of the statute by performance on complainant’s part, and declines to interfere withthe decree against him.</p>

<p>Heal Property—Farm, Drainage—Superior and Inferior Heritage— Increase of Natural Flow of Water from Former to Latter—System of Tile Drainage.</p> <p>Upon the case presented, this court holds that the defendant had a right to put in a system of tile drainage upon a portion of his own land and of the land of a neighbor, whereby the surface water collected on liis lands would be discharged into a ditch in the public highway, and would flow from thence to and across the lands of appellants to a creek, it appearing, from the situation of the lands involved, that the water, when drained from appellee’s land, must, in the natural course of drainage, flow in the direction and along the course in which the tile was proposed to be laid.</p>

<p>In error to the Circuit Court of Ogle County; the Hon. James Shaw, Judge, presiding.</p>

Arthur A. Smith, Judge, presiding. This was a bill in equity brought by the appellant against the appellee, seeking to recover the sum of $1,000 on an insurance policy issued by the appellee to her son, Fletcher Benton, deceased, In his lifetime, and alleged by the bill to have been assigned by her son to her in his lifetime, or by him directed to be paid to her under and in accordance Avith the constitution and by-laAvs of the appellee.

John D. Crabtree, Judge, presiding. At the August term, 1891, of the Ogle County Circuit Court, an indictment, charging the plaintiff in error in twenty-four counts with violating Sec. 2 of the Dram Shop Act, and in one count with violating Sec. 7 of that act, was returned into open court by the grand jury.

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

<p>Master and Servant—Negligence of Master—Personal Injuries — Switchmen — Fellow-servants—Plaintiff’s Familiarity with Condition of Tracks—Instructions—Evidence—Assumption of Risk.</p> <p>1. In an action brought against a railway company by a switchman, to recover damages for a personal injury received while in defendant's service, where the question of the negligence of the company in employing a fellow-servant of plaintiff, and in failing to have the guard-rails of its tracks blocked, was in issue, held, that an instruction to the jury which made the defendant liable for the negligence of a fellow-servant,' regardless of the general fitness and competency of such servant, or of any negligence of defendant in hiring him, and which also declared an absolute liability of defendant to plaintiff for negligence in respect to its tracks, etc., regardless of plaintiff’s knowledge of the manner of their construction, was fatally defective.</p> <p>2. If a person knowing the hazards of his employment as the business is conducted, voluntarily continues therein without any promise of the master to do any act to render the same less hazardous, the master will not be liable for any injury the servant may sustain therein, unless such injury be caused by the wilful act of the master.</p> <p>3. General reputation of a servant for competency and care at the time and place of employment, of such character as to imply informa-’ tion to the employer, is admissible as tending to disprove alleged negligence in employing such servant.'</p>

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

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

<p>Tender—What Necessary to Sustain Plea of—Costs—Courts.</p> <p>1. Where a debtor tenders what he conceives to be the entire amount of his indebtedness, he thereby admits that the sum so tendered is due the claimant, and if he intends to rely on such acts as a defense, it is his duty to have the money at all times where the claimant can take it. After the commencement of suit the place of payment is transferred to the forum where the litigation is pending. The principle is the same in justice courts as in courts of record.</p> <p>3. When a tender is made after suit commenced, the amount tendered must be accompanied by the amount of costs accrued up to the time of tender.</p>

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

<p>Statute of Frauds—Promise to Pay Debt of Another—Principal and Surety.</p> <p>If an act promised to be done is, in its consequences, to operate as a discharge of a debt of another, the circuity of the process by which that object is proposed to be effected does not vary the rule that the promise, not to be within the statute of frauds, must be in writing.</p> <p>A guaranty of an indemnity to a surety is within the statute of frauds.</p> <p>A consideration that will take a case out of the statute of frauds must be such a consideration as will make the collateral debt, agreed to be paid, the debt of the promisor. It must be an original undertaking.</p>

<p>Separate Maintenance—Conduct of Parties—Complainant Not Free from Fault.</p> <p>If a complainant in a bill for separate maintenance is guilty of misconduct,which materially contributed to produce the conditions of which she complains as justifying the separation, then she is not without fault within the meaning of the statute, and is not entitled to a decree.</p>

<p>Negotiable Instruments—Note—Insolvency of Maher—Sufficiency of Evidence to Establish—Return on Execution—Suit Against Partner Individually.</p> <p>In an action brought by an indorsee against an indorser of a note given by a partnership, this court holds that sufficient evidence was introduced to warrant the finding by the jury that the estate of one of the makers of the note was insolvent, that the return of the sheriff on an execution issued in a suit against the other maker was sufficient, and that in an action at law, where there was no marshaling of assets, it was immaterial whether the suit was against a partner as such or as- an individual.</p>

<p>In error to the Circuit Court of Ogle County; the Hon. John D. Crabtree, Judge, presiding.</p>

<p>Principal and Surety—Action on Official Bond of Justice—Whether Act Complained of Was Official—Acknowledgment and Certificate by Justice of His Own Mortgage.</p> <p>A justice of the peace attempted to acknowledge and certify a mortgage given by himself to one of his creditors, and the creditor lost his debt; an action was brought by the creditor on the bond of the justice; this court holds, that the proximate cause of the invalidity of the mortgage and the loss of the debt, was the failure of the justice in his individual capacity to properly acknowledge the mortgage before another justice, and the bond having been given on the condition that the justice would well and truly perform his official acts, no breach was shown.</p>

<p>Real Property—Conveyance of—Fraud as to Creditors—Remedy of— Rights of Innocent Purchaser of Notes Secured by Mortgage on the Property Conveyed,</p> <p>Where real estate in which a judgment debtor had an interest subject to forfeiture, was, after declaration of the forfeiture, the declaration being duly recorded, conveyed to the wife of the debtor in alleged fraud of the rights of the creditors of the husband, the right of such creditors was merely a remedial right to have the conveyance, as against them, set aside, and this remedial right was cut off pro tanto by the transfer to an innocent purchaser, without notice of the fraud, of notes secured by a mortgage on the land in question, given by the wife as the nominal purchase price of the land.</p>

<p>Criminal Law—Assault—Indictment for—Evidence—Intent, Testimony as to—What May Be Bead to Jury as to Law in Criminal Case.</p> <p>1. A defendant charged with assault in which the intent is a necessary ingredient of the offense, is .not precluded from testifying with what motive he committed the act charged against him. But, though in the case at bar the defendant was precluded from so testifying, it appears that he was not injured thereby, and therefore it did not constitute reversible error.</p> <p>2. In determining what portions of judicial opinions and text books may be read to a jury by counsel in making an argument in criminal cases, much must be left to judicial discretion in each case. In the case at bar the defendant was not injured by reading the passages complained of.</p>

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

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

<p>Judgments and Decrees—Judgment by Default—Bill to Set Aside-Negligence of Defendant's Agent a Bar.</p> <p>Upon a bill filed to set aside a judgment obtained by default, this court holds that the evidence showed that complainant had, through its agent, been guilty of such negligence that it was not entitled to relief.</p>

<p>Master and Servant—Railroad Company—Negligence—Action for Damages for Death of Employe—Railway Collision—Question of Fact— Pleading—What Omissions Cured by Verdict—Fellow-servant.</p> <p>In an action against a railway company to recover damages for the death of plaintiff’s intestate in a collision, the same having been caused either by the negligence of an engineer in failing to notice a red light, or else by the act of some person in changing the red light to white, this court holds that the overwhelming weight of evidence was that the accident was due to the negligence of the engineer, and as plaintiff’s intestate was a fellow-servant with the engineer, there can be no recovery.</p>

<p>Chancery Practice — Preservation of Evidence — Incorporation in Decree of Findings of Fact—When Necessary to Support Decree.</p> <p>In chancery practice, the party who asks and obtains relief must preserve in the decree, or otherwise in the record, evidence, or facts found, sufficient to support the decree, otherwise it will be reversed by the Appellate Court. But where the appellee occupied a negative position in the court below, the decree will not be reversed because no findings, or evidence, appear in the record to support it. The requirement is on the party seeking affirmative relief, whether successful or not in the lower court, to preserve the evidence and the facts necessary to the sustaining, or granting of relief by the Appellate Court.</p>

<p>Administration—Claim—Alleged Settlement Between Claimant and Deceased—Counter-claim—Whether Ineludedin Settlement—Instruction.</p> <p>Upon the case presented, which was a claim by a son against the estate of his father for sundry items, alleged to have been acknowledged by the father at a settlement made between the parties, where the defense presented a counter-claim, this court holds that it was error for the court to instruct the jury that if they believed the evidence as to the alleged settlement, such settlement afforded prima facie evidence that all claims which the deceased held against his son, were paid off.</p>

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

<p>Mechanics’ Liens—Failure of Owner to Require Statement from Contractor—Payment of Contractor in Full—Rights of Sub-contractor.</p> <p>Where the owner of a building disregards his statutory duty of requiring from the contractor a statement of the amounts due sub-contractors and material-men before paying such contractor, such payments are to be considered as illegal and in violation of the rights of a sub-contractor who has complied with the statutory conditions necessary to render the owner liable to him for the amount due him by the main contractor, and can not be set up as a defense against such sub-contractor’s claim.</p>

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

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

<p>Appeal from the County Court of Grundy County; the Hon. A. R. Jordan, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Iroquois County; the Hon. C. E. Starr, Judge, presiding.</p>

<p>Negotiable Instruments—Note—Title of Bona Fide Holder—Evidence Necessary to Impeach-^-G-round for Suspicion not Enough—Instructions.</p> <p>Bare suspicion of a defense is not enough to impeach the title of a. holder of negotiable paper, transferred to him before maturity for good consideration. There must be actual notice to the assignee of a defense to the paper, and must consist of knowledge of facts which would impeach the validity of the note between the antecedent parties.</p>

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

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

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

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

<p>Executions—Bill in Aid of—Mortgage on Leasehold Estate—Chattel Mortgage—Validity of—Mortgage of Partnership Property Executed by One Partner—Estoppel.</p> <p>1. Upon a bill filed in aid of an execution to set aside mortgages on a leasehold estate, given in the form of a chattel mortgage, although the interest of the mortgagors was real estate, this court holds that, as it clearly appeared that it was the intent of the mortgagors to mortgage their interest in the property described to the mortgagee, whatever that interest might be, that the mortgage was valid.</p> <p>2. When a partner receives money raised by a mortgage given by the other partner on the supposition, known to him, that such other partner had the right to execute the mortgage, he will be estopped from asserting title to the property, and a judgment creditor, with notice of the mortgagee’s equities, will stand in no better position.</p>

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

<p>Municipal Corporations—Negligence of—Defective Sidewalk—Personal Injuries—Care of Plaintiff—Evidence—Instructions—Exceptions.</p> <p>In an action brought against a municipality to recover damages received through a fall caused by a defective sidewalk, this court holds that the evidence was sufficient to establish the negligence of defendant, due care on the part of the plaintiff, and that the damages were not excessive.</p>

Charles Kjellum, Judge, presiding. This is an action on the case.

<p>Mortgages—Sales of Mortgaged Property—Proceeds Received in Trust for Mortgagee—Breach of Trust—Surrender of Mortgage Secured by Fraud—Remedy of Mortgagee.</p> <p>1. The proceeds of the sale at auction, of property mortgaged to plaintiffs, having, by previous arrangement, come into the hands of defendant, he, by fraudulent representations, induced plaintiffs to receive a new mortgage on other property of the mortgagor in satisfaction of their claim: Held, that defendant was guilty of a breach of trust and that plaintiffs could recover from him in any appropriate form of action the money he had received in trust for them.</p> <p>2. Upon the case presented, it was not necessary for plaintiffs to show that they had not received anything on the new mortgage nor to tender the same back.</p>

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

Aleeed Sample, Judge, presiding. Joseph B. Shaw married Eliza J. Messenger in 1815, and in 1816 her father, Horman Messenger, leased to the husband a farm of 120 acres for ten years at an annual rental of $1.25 per acre, Shaw to be paid at the end of the term by the father for all the improvements he' should put on the farm. At the time the husband and wife commenced to operate the farm the father let the daughter have $300 cash, $200 of which she turned over to her husband.

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

<p>Municipal Corporations—Negligence of—Defective Sidewalk—Presumption of Notice to City—Conflict of Evidence—Verdict.</p> <p>1. In an action against a city to recover damages for an injury alleged to have been received from a defective sidewalk, where the evidence was conflicting, the verdict of the jury held to be conclusive as to the facts.</p> <p>2. Where a defect in a sidewalk is shown to have existed for a long time, proof of actual notice of its condition to the city is unnecessary.</p>

<p>Appeal from the Circuit Court of Knox County; the »Hon. J oust J. Glenn, Judge, presiding.</p>

<p>Railroads—Negligence of—Killing of Live Stocle—Disobedience of Ordinance—Presumption of Negligence.</p> <p>In an action brought against a railroad company to recover damages for killing of live stock within city limits, where the evidence showed that the train which ran over the stock in question was going at a rate of speed prohibited by a city ordinance, this court holds that such excessive speed raised a presumption of negligence merely on the part of the company, but that it was error to instruct the jury that the company must show by a preponderance of evidence that such excessive speed did not cause the injury complained of.</p>

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

<p>Appeal from the Circuit Court of Knox County; the I-Ion. John J. Glenn, Judge, presiding.</p>

<p>Dram, Shop Aet—Loss of Support—Death of Plaintiff’s Husband— Whether Sale Contributed Sufficiently to Deceased’s Intoxication to Render Defendants Liable—Instructions.</p> <p>In an action brought under the Dram Shop Act to recover damages for furnishing liquor to plaintiff’s husband, whereby he became intoxicated and lost his life, to the injury of plaintiff’s means of support, where the evidence showed that deceased had drunk heavily at a saloon other than defendants’, and left it a question of doubt whether what defendants furnished him in any appreciable degree caused his intoxication, tins court holds that it was error for the court to instruct the jury that if the liquor sold deceased by defendants in any part caused his intoxication, it was sufficient to render them liable. To render such persons liable, the liquor sold by them must have contributed to the intoxication in an appreciable and essential degree.</p>

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

Johx J. Glenx, Judge, presiding. On the 1st of June, 1888, the appellee ordered from appellants, through their agent, E. T. Kenney, of Galesburg, a harvester, for which he was to pay $150, as follows : $100 in an interest-bearing note, with security, and $50 in an old machine.

<p>Master and-Servant—Brick Company—Negligence—Personal Injuries —Caving of Clay Bank—Order by Foreman—Instructions.</p> <p>1. By a contract of employment, the employe takes upon himself 6the ordinary hazards of the business as conducted under the system adopted by his employer.</p> <p>2. The fact that an employer conducts his business by a method that is not the safest possible hi the premises, does not constitute negligence, or render him liable to an employe for an injury received in the course of his employment; but for the employer not to use ordinary care that the conduct of his business by the method adopted should not inflict injury upon such of his employes as use ordinary care, would constitute negligence.</p> <p>3. Where a servant protested against going under a bank of overhanging clay, on the ground that it was dangerous, but was positively ordered by his foreman to go under the same, on penalty of discharge for disobedience, and obeyed the order and was seriously injured, held, that a finding by the jury that he was not guilty of negligence was justifiable.</p> <p>4. It was proper for the court to refuse to allow inquiry whether there was any contract as to what portion of the judgment plaintiff should have in case of recovery.</p> <p>5. Exceptions to instructions examined and overruled.</p>

<p>Practice—Affidavit Claimed to Have Been Made Before a Notai'y Who Was an Attorney in Case—Christmas, Whether Dies Non Juridicus.</p> <p>1. On appeal from an order denying a motion to set aside a judgment entered by a clerk in vacation by confession, where it was objected tliat the affidavit, on which judgment was entered, was made before a notary, who was also an attorney in the case, held, that the record failed to show the identity of the attorney and notary.</p> <p>2. The judgment in the case presented was not void because entered by the clerk on the 25th day of December, a legal holiday.</p>

<p>Landlord and Tenant—Lease—Action on—Verdict—Items Included Not Shown by Evidence to Have Been Due.</p> <p>In an action brought to recover for various items of account alleged to be due under the provisions of a lease, .this court holds that the amount of the verdict showed that it included several items not shown by the evidence to be due, under the provisions of the instrument sued on.</p>

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

<p>Wills—Undue Influence—Testamentary Capacity—Extreme Age and Physical Infirmities as Affecting—Instructions—Evidence.</p> <p>Upon the submission to a jury of the question of the validity of a will, where the grounds of contest were undue influence and testamentary incapacity, and the court told the jury that the following were not grounds for inferring undue influence, viz., “ that the beneficiaries of a will are those by whom the testatrix was surrounded and with whom she stood in confidential relations at the time of the execution of the will, or the fact that the principal beneficiaries had, for years, control of her estate, or the fact that the provisions of the will were for the benefit of such persons, or may seem unreasonable,” and where the court further told the jury that “ great age and weakness and bodily infirmity would not render the testatrix incapable of disposing of other property as she saw fit,” held, that while these instructions were defective, as tending to exclude from the attention of the jury facts which it was proper for them to consider in arriving at their verdict, yet, as other portions of the instructions materially modified them and correctly stated the law, they did not constitute reversible error.</p>

Johu D. Cbabtree, Judge, presiding. On the 27th day of May, 1891, George W. Duncan sold a stock of goods in Dixon, Illinois; to his brother, William C. Duncan, and on the same day William C. Duncan took possession of the store and the stock of goods and commenced selling at retail. On June 5, 1891, Charles II.

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

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

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

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

<p>Attorney and Client—Action for Services—Dispute as to Contract of Employment—Verdict of Jury—Variance Between Praecipe and Declaration—Evidence.</p> <p>1. In an action brought by an attorney to recover for services rendered by him, where there was a conflict of evidence as to the terms under which he was engaged, this court holds that the verdict of the jury was justified by the evidence.</p> <p>3. Where the defendants pleaded to the declaration without objection, and made no point in the Circuit Court, it is too late to object here that the amount of damages laid in the declaration exceeded the amount named in the praecipe.</p> <p>3. A letter, written by defendants’ son to the plaintiff, held, in the case presented, to have been properly admitted in evidence, it appearing that it was written at defendant’s request, about the business in controversy.</p>

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

<p>Justices—Jurisdiction of—Action for Injury to Personal Property-Death of Colt Through Failing into Open Ditch—Negligence of Person Digging Ditch—Ditch Dug in Inclosure of Bailee of Colt—Evidence— Instructions—“Accident.” °</p> <p>1. A justice of the peace has jurisdiction of an action for damages for an injury to personal property.</p> <p>3. In an action brought to recover damages for the death of a colt by falling into a ditch dug by defendant through a corner of an inclosure of a bailee of the colt, this court holds that the evidence justified a verdict for plaintiff; that evidence that plaintiff owned the land through which the ditch was dug, although it was not within his inclosure, was immaterial, as the fact, if true, would constitute no excuse for his negligence; that the action was properly brought by the owner of the colt, although at the time of its death it was in the possession of a bailee, and that the negligence of the bailee of the colt, if there was any, was no defense.</p> <p>3. An instruction telling the jury that if the colt lost its life by accident, plaintiff could not recover, was bad in not explaining that legally an “ accident ” meant an event happening unexpectedly, and causing damage without fault.</p> <p>4. The evidence showing a clear right of recovery, unimportant, errors are overlooked, and the judgment affirmed.</p>

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

<p>Appeal from the Circuit Court of Peoria County; the Hon. T. 11. Shaw, Judge, presiding.</p>

<p>Appeal from the City Court of Aurora, Illinois; the Hon. E. P. Goodwin, Judge, presiding.</p>

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

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

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

<p>In error to the Circuit Court of Whiteside County; the Hon. John D. Crabtree, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Woodford County; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Boone County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>Insurance—False Representations of Agent—Whether Intent to Deceive Material—Practice—Preservation of Exceptions Necessary—Motion for New Trial Overruled by Judge other than Trial Judge.</p> <p>Where a person being solicited to insure his property, was in doubt as to whether his property was already insured or not, and the solicitor undertook to ascertain that fact for him, and, after ascertaining that he was insured, reported that the property was not insured, whereupon such person insured with the solicitor’s company, in an action brought by the insurance company upon the note given by appellee for the premium, it is held: That the question of the agent’s intent to deceive the appellee was immaterial. Such representations will be treated as fraudulent if they mislead the person to whom they are made to his injury.</p> <p>2. The failure of the court to instruct the jury that appellee was bound to exercise due care to avoid being deceived by the agent’s representations was immaterial, the jury having specially found that appellee exercised such care.</p>

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

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

<p>Sales to Minor—When Parent Liable Therefor.</p> <p>Where a dealer sells goods to a minor without authority from the parent, he can not recover for the same from the parent, even though the goods may be regarded as necessaries, unless it appears that the parent has refused to supply the child with the needed articles.</p>

<p>Street Railroads—Negligence of Employes—Action for Injury Received While Attempting to Board Defendants Car—Question of Negligence—Verdict Justified by Evidence—Contributory Negligence.</p> <p>1. Where a street car has been stopped at a point usual for taking on passengers, the duty devolving on those in charge of the car to give ample time for safely mounting is not limited to the person or persons who' may have signaled the car, but includes others who may deshe to take passage.</p> <p>2. The main question in issue being whether the motorman started the car while the appellee was trying to mount it, or whether the appellee started to get on after the car was in motion, held, this was a question of fact for the jury, and the evidence being contradictory, their finding will not be disturbed.</p> <p>3. Where the defendant was guilty of negligence which placed the plaintiff in a position of sudden peril, reason is afforded for not holding the plaintiff to strict responsibility for an act which would be considered contributory negligence, were it not for a condition of agitation which precluded the exercise of calm judgment.</p>

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

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

<p>Negotiable Instruments—Note—Defense of Forgery—Evidence as to Genuineness.</p> <p>Under the law of this State, upon the question of the genuineness of the signature to a promissory note sued on, a witness who has never-seen the defendant write, but who has examined the signature to the note sued on and a signature admittedly genuine, can not testify as to his opinion of the genuineness of the signature in question.</p>

<p>Landlord and Tenant—Lease under Seal—Validity of Parol Contract Between the Parties—Statute of Frauds.</p> <p>In an action brought by a tenant against his landlord to recover damages for a -breach of an alleged verbal contract by which the landlord agreed to furnish the tenant water during the term of his lease, this court holds that the alleged contract was void as being an attempt to enlarge by parol the terms of the lease, which was under seal, and also because it was contrary to the statute of frauds, the alleged contract having been made February 23d, and the lease extending for the term of one year from the first day of the ensuing month.</p>

<p>Negotiable Instruments—Note—Forgery—Verdiet.</p> <p>In an action brought by an assignee of a promissory note against the estate -of the maker, where the defense was that the note had been fraudulently raised, or was a forgery, this court holds, the evidence being conflicting, that the jury were justified in finding that the note had been raised.</p>

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

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

<p>Street Railways—Horse Killed by Electricity—Action Against Electric Railway Company to Recover Damages Therefor—Alleged Negligence of Defendant’s Employes—Evidence.</p> <p>1. In an action brought against an electric street railway company to recover damages for the death of a horse which was killed through the knocking upon him by a trolley pole of one of defendant’s cars, of a telephone wire which, in falling, touched the company’s wire and completed a circuit, held, that the evidence justified the finding that defendant’s servants were negligent, and that plaintiff’s' servant in charge of his horse was not negligent.</p> <p>2. Evidence tending to show that the telephone wire was negligently left in its position by the telephone company or the city was properly rejected, this being foreign to the question of defendant’s negligence.</p>

<p>Former Adjudication—This Court—Effect of.'</p> <p>A former order or decree of this court in a cause is, unless it is reversed by the Supreme Court, final and conclusive of the rights of the parties, and the questions therein determined can not be again litigated by taking an appeal from the decree of the lower court carrying that decree into effect.</p>

<p>Mortgage—Bill to Foreclose—Error in Desffription.</p> <p>Upon á bill to foreclose a mortgage on real estate where a part of the land was described as “ the east side of the southeast quarter,” etc., held, that the east “ side ” meant the east half, i. e., eighty acres, and that the court erred in decreeing the sale of the east one hundred acres, no prayer for reformation having been contained in the bill.</p>

<p>Forcible Entry and Detainer—What is “ Force ”—Construction of Statute.</p> <p>1. Where the owner of the paramount title takes forcible possession of his own land when it is in the peaceable possession of another, an action of forcible entry and detainer will lie against him in favor of the party so dispossessed, though at the time the right of possession was in such owner.</p> <p>2. Defendant in the absence of the p'aintiff, went to the field, the right of possession of which was in question, at a time when the plaintiff’s servant might have been expected to be present, and with his hired men entered the field through the gate, drove out the plaintiff’s stock, tore down his racks, fences, etc., and upon plaintiff's return stationed himself at the gate with a loaded gun, and threatened to shoot him if he entered the premises; held, that such entry was by “ force,” such as is prohibited by the statute.</p>

<p>Agency—Sale of Machinery by Agent—Claim for Commission—Alleged Breach of Conditions by Agent—Forfeiture Not Favored.</p> <p>Where a contract between a manufacturer of machinery and one of his agents, who sold on commission, provided that in case of a violation of the contract by the agent he should forfeit his commission in a certain transaction, the agent having been guilty of a technical violation of the conditions, resulting in no damage to the manufacturer, this court holds that the manufacturer having apparently acquiesced in the agent’s conduct for some time, the forfeiture was waived and the agent entitled to his commission.</p>

<p>Life, Insurance—Bill filed by Creditors of Deceased to Peeover Premiums Paid on Insurance Policy—Construction of Statute—Intent to Defraud Creditors.</p> <p>1. Upon a bill filed under Par. 3, Sec. 19, Chap. 73, R. S., to recover premiums paid for insurance by a debtor, in his lifetime, on the ground that they were paid “ with intent to defraud his creditors,” this court holds that the same rule of construction applied as in the case of voluntary conveyances in respect to creditors, where the creditors sought to have the conveyance set aside.</p> <p>2. In the case at bar the bill is fatally defective in that it failed to show that any of the premiums were paid while complainant's claim against the insured was in existence.</p>

<p>Advertising Contract—Construction of—Compliance with Conditions of by Advertiser—Tender—Costs.</p> <p>1. A contract was entered into between plaintiff and defendant by which, for a stated consideration, plaintiff was to advertise defendant in a hotel register which was to be placed in five hotels in defendant’s city. In an action by plaintiff to recover the price named in the contract, held, that the evidence showed that he had complied with the conditions of the contract and was entitled to recover.</p> <p>2. Defendant having tendered to plaintiff part of the stipulated price, could not be heard to deny his indebtedness entirely, and a verdict against plaintiff on all the issues, and judgment for costs, was manifestly wrong.</p>

<p>Personal Injuries—Release—Whether Obtained by Fraud—Weight of Evidence—Pleading.</p> <p>1. In an action on the case it is not necessary for the defendant to specially plead a release in order that it may be admissible in evidence.</p> <p>2. Upon the question of fact whether a release offered in evidence was fairly obtained or not, this court holds that the overwhelming weight of evidence was that it was fairly obtained and that it was a bar to plaintiff’s cause of action.</p>

<p>Appeal from the Circuit Court of Iroquois County; the Hon. C. R. Stabs, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Henderson County; the Hon. John J. G-lenn, Judge, presiding:</p>

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

<p>Real Properly—Writ of Possession—Grant of by Circuit Court after Writ of Error Sued out—Judgments and Decrees.</p> <p>1. Where a decree has been entered in a cause providing that one party shall be let into possession of certain real estate on the failure of the other party to make a specified payment by a day fixed in the decree, and on appeal to this court the decree is affirmed, the Circuit Court has power to grant a writ of possession before a writ of error has been sued out from the Supreme Court.</p> <p>' 2. Even were the cause pending here, the court below would have had power to grant a writ of possession, no supersedeas having been allowed.</p>

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

<p>Appeal and Error—Interlocutory Decree,</p> <p>No appeal lies from, an interlocutory decree.</p>

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

<p>Garnishment—Judgment Against Garnishee—Whether Defense Against—Action by Garnishee's Creditor in Another State—Whether Such Judgment May Be Impeached for Fraud.</p> <p>1. Where a judgment has been rendered against a garnishee in one State upon a regular proceeding before a court having jurisdiction, and without collusion between the plaintiff and the garnishee, such judgment is conclusive in every other State, and constitutes a complete defense to the garnishee when sued for the same debt by his original creditor.</p> <p>2. Such a judgment in a garnishee case in a sister State may be impeached in this State for fraud and circumvention in obtaining the same.</p>

<p>Question of Fact—Verdict of Jury.</p> <p>In a controversy involving title to a horse, this court holds that the evidence justified the verdict, and no question of law appearing, the judgment is affirmed.</p>

<p>Master and Servant—Contract of Employment—Entirety—Breach by Employe—Excuse.</p> <p>1. Where one party agrees to work for another for a certain time for a certain price, he must fully perform his contract and work for the time agreed, or lie can not recover, unless released by his employer, or some legal excuse for his failure is shown.</p> <p>3. Upon the case presented, this court holds that the jury were warranted in finding that the plaintiff was excused from full performance on his part and that a verdict in his favor should be sustained,</p>

<p>Fraudulent Conveyances—Real Estate—Bill by Judgment Creditor to Set Aside—Necessary Averments in—Parties—Remedy at Lato Need Not be Exhausted—Recognizance—Reinstatement of Criminal Case after Reversal by Supreme Court—Failure to Give Notice to Defendant —Averment in Sci. Fa. of Time and Place Where Defendant Required by Recognizance to Appear—Protection of Homestead in Order of Sale of Land Fraudulently Conveyed—To Whom Surplus to be Paid.</p> <p>1. Upon a bill in equity, filed by a judgment creditor to set aside as fraudulent a conveyance of land made by one of the judgment debtors and to subject such land to the lien of complainants’ judgment, it was unnecessary to aver or prove the insolvency of the other judgment debtor or to make him a party to the bill, he having no interest in the land in question.</p> <p>2. Where a party seeks to remove a fraudulent conveyance or incumbrance out of the way of his execution, he may file his bill for that purpose so soon as he has obtained his judgment. The conveyance being void as to him he has the right to place himself in the same position which he would have occupied had it never been made, and _first seek his satisfaction out of the land thus fraudulently conveyed.</p> <p>3. A bill of this nature is not strictly a creditor’s bill, and the relief sought to be obtained by it does not require the averment or proof that the remedy at law was exhausted.</p> <p>4. A recognizance, when taken, becomes a matter of record, and when the court taking it had jurisdiction of the offense charged it can not be assailed.</p> <p>5. Where a recognizance is taken in open court, acknowledging an indebtedness to the people of the State of Illino!:, and that recognizance is forfeited and sci. fa. issued and returned nihil, that return is equivalent to actual service.</p> <p>6. Where a principal in a recognizance had been convicted of grand larceny and sentenced, and afterward the judgment was reversed by the Supreme Court and the cause remanded, and the order reversing and remanding filed in the Circuit Court, whereupon the cause was reinstated in the Circuit Court by direction of the state’s attorney, and thereafter the prisoner and his counsel appeared and the recognizance in question was entered into in open court, held, that the fact that there was no notice given to the prisoner of the motion to reinstate the case in no way affected the validity of the recognizance, the filing of the final order reversing and remanding the case having conferred jurisdiction on the Circuit Court.</p> <p>7. An objection on the ground that the writ of sei. fa. did not allege that by the terms of the recognizance the accused was required to appear before the corut at any time or place, Held, immaterial, because, first, such objection would not support a collateral attack on the judgment; second, there was an averment that the accused entered into a recognizance for his appearance at the next term of the Circuit Court of said county to be holden at the court house in said county, which was sufficient.</p> <p>8. As the decree recognized the right of homestead, and directed the officer in making the sale to take such steps as were provided by law ' for setting it off, and did not assume to defeat the conveyance of it, it is not open to the objection that it set aside the conveyance of the homestead and forced it back on the defendant.</p> <p>9. There was error in the decree in that it provided that the surplus arising on the sale, if any, should be paid to the defendant instead of to the grantee, to whom he had conveyed the land.</p> <p>10. It was proper to decree that the money collected on the judgment should be paid to the state’s attorney.</p> <p>11.. The fact that the land in question could have been levied on and sold without first attacking the fraudulent conveyance by this bill, does not bar the remedy in equity to first have the conveyance set aside.</p>

<p>Railroad Companies—Negligence of—Death of Stock—Failure to Fence Track—Construction of Statute, Whether Penal—Waiver of Assignment of Error—Must he upon Record.</p> <p>1. The statute of this State in regard to fencing railroad tracks and which imposes liability on companies not complying with it for the death of- stock passing- upon its tracks, is not penal, and the action given to the owner of stock so killed is not barred in two years.</p> <p>2. An assignment of error which appears in the record, can not be waived by a mere suggestion in the argument, but must be waived in the record, otherwise the assignment of error, if valid, must be sustained by the court.</p>

<p>Appeal from the Circuit Court of Jackson County; the lion. Joseph P. Egberts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Bond County; the Hon. George W. Wall, Judge, presiding’.</p>

<p>Jurisdiction—Service on Corporations—When May Be by Publication —Construction of Statutes—Plea to ■Jurisdiction—Judgment of Respondeat Ouster—When Objection to Jurisdiction not Waived by Pieacting to Merits.</p> <p>1. The language of Sec. 4, Chap. 110, of the Practice Act. authorizing service on corporations by publication in certain cases, is to be so constraed. as to render it in harmony with Sec. 2 of the Practice Act, and does not authorize service on a corporation by publication, except in the county where it lias its residence.</p> <p>2. Where a demurrer to a plea to the jurisdiction is sustained, and a judgment of respondeat ouster entered, and the defendant duly excepts, it may plead to the merits without waiving its right to assign as error the judgment of the court in sustaining the demurrer.</p>

Clair County; the Hon. Benjamin B. Burroughs, Judge, presiding. The appellant, by its highway commissioners, brought suit against the appellee to recover the sum of $129.87 on the following state of facts: The appellee’s road was constructed in the year 1854 through the town of O’Fallon. It crossed over a public highway, at the time, by a trestle that spanned a portion of the bottom lands of Silver creek.

<p>Appeal from the Circuit Court of Lawrence County; the Hon. E. D. Youngblood, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Marion County; the Hon. Benjamin E. Bubeoug-hs, Judge, presiding.</p>

<p>Instruction to Jury to Find for Defendant—At Close of Plaintiff's Case—When Proper—Effect of Decision on Former Appeal—Practice.</p> <p>1. The court is only justified in instructing the jury to find a verdict for the defendant when the evidence, with all the inferences that may be justly- drawn therefrom, is so insufficient to support a verdict for plaintiff, that the court would be compelled to set it aside if rendered.</p> <p>2. Views expressed by this court on a former appeal can not be considered conclusive upon the present hearing, when material evidence is in the record which was not given at the first trial.</p>

Clair County; the Hon. Benjamin R. Burroughs, Judge, presiding. This action in assumpsit was brought May 31,1887, by appellant for the use of Griswold to recover a judgment against appellee upon seven instruments, described in the declaration as follows: Certificate No. 301. For Voucher No. 38. Oifice of bthe City Clerk, 7 July, 1877.

<p>Pleading and Practice—Dismissal as to One Defendant—Wifhdrau'al of General Issue and Filing of Special Plea—Demurrer to Plea—Carried Back to Declaration—Action for Support of Insane Pauper— Parties.</p> <p>1. Where, by direction of the board of supervisors, suit was commenced by appellant for the use of the county, against an insane pauper, sux>portod by the county, and his curator, a resident of another State in which the pauper had an estate, to recover for the support of such pauper, and the curator pleaded the general issue, and afterward the suit was dismissed against the pauper, held, that the curator was properly allowed to withdraw his plea of the general issue and file a special plea; and that a demurrer to the special plea was properly carried back and sustained to the declaration.</p> <p>2. Where, upon the face of the declaration it appeared that a party was made plaintiff to whom the defendant was not indebted and to whom the indebtedness named was not payable, and who was not damaged by a failure to pay the same, and such plaintiff brought the suit in his own name by the direction of the supervisors of the county, to which county the indebtedness was alleged to be due, held, that the declaration was obnoxious to a general demurrer.</p> <p>3. Whether or not a plea is to be considered a plea in abatement or a plea in bar, is determined by its opening and its conclusion.</p>

<p>Appeal from the Circuit Court of Wabash County; the Hon. S. Z. Landes, Judge, presiding.</p>

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

<p>Railroads — Negligence of—Injury to Stock—Statutory Liability— Common Law Liability—Contributory Negligence—Confusing Instructions.</p> <p>In an action brought against a railway company to recover damages for the death of three different domestic animals of plaintiff, killed at different times on defendant’s track, this court holds that the instructions were confusing and erroneous—the first in failing to include the element of due care on plaintiff’s part; the second in basing a g'eneral right of recovery on the failure of defendant to fence its track properly where the evidence only showed that one of the animals sued for escaped upon the brack through the defendant’s fence; the third in referring to the defense of contributory negligence on the part of plaintiff where the negligence set up in defense was that of plaintiff’s son.</p>

<p>Slander—Pleading—Evidence—Variance—Instructions.</p> <p>In an action on the case for slander the plaintiff must prove so much of. the language used in some one of the sets of words set out in the declaration as fully proves the charge. All the words in the sentence need not be proved, if those which are proved fully establish the slander. If, however, other words not laid are proved, which limit or change the meaning of those counted on, the action will not be sustained. Instructions given in the case at bar, requiring stricter proof than above indicated, were erroneous.</p>

<p>Contracts—Action on Due Bill—To be Paid Out of Proceeds of Sale of Land—Implied Promise to Sell Land—Time of Performance.</p> <p>1. Where a contract is silent as to the time of performance, a reasonable time is presumed to be intended.</p> <p>2. An instrument recited that a certain sum was due to the payee, “received in advance payment on our joint ownership of” a certain tract of land, “payable out of the proceeds of the sale of said land;” this court holds that the legal import of the instrument was that the malter agreed to sell the land described within a reasonable time, and at once, out of the proceeds, pay to the payee the sum named, and that upon the breach of such contract a suit at law could be maintained.</p>

<p>Appeal from the Circuit Court of Washington County; the lion. A. S. Wildermak, Judge, presiding.</p>

<p>Appeal from the County Court of Jackson County; the Hon. "W. W„ Babe, Judge, presiding.</p>

Benjamin It. Bubkoughs, Judge, presiding. Appellee brought this action on the case against appellant to recover damages for injuries to his person. The declaration contained five counts. In the first count it is averred that plaintiff and other workmen were employed by defendant to construct a wire fence along its right of way.

<p>Master and Servant—Duty of Employer to Employe as to Furnishr ing Machinery and Surroundings—Action for Death of Brakeman Knocked off Gar by Bridge—Contributory Negligence.</p> <p>1. When a railroad company constructs a covered bridge along the line of its road, it should build it of sufficient height so that persons employed by it as brakemen, and who in the discharge of their duties are required to go upon the tops of freight cars while passing through the bridge, may pass through and under the roof of the bridge without danger to their personal safety.</p> <p>2. Plaintiff’s intestate was a brakeman in the employ of defendant, and met his death through being knocked off from the roof of an unusually high car while passing through one of defendant’s bridges. Held, that the construction of the bridge was such as to warrant a finding of negligence against defendant, and that it also warranted a finding that deceased was free from negligence.</p> <p>3. No one is presumed to knowingly incur pain and death when he can avoid it at his discretion.</p> <p>4. A servant is under no obligation to investigate and test the machinery and fixtures surrounding him, in the absence of notice that there is something wrong in that respect, but can rely on the performance of this duty by the master.</p>

<p>Novation—Consideration for—Statute of Frauds.</p> <p>Where for a valid consideration a party agrees to pay a debt due from a debtor to his creditor and the creditor releases his original debtor and accepts the new promisor as his sole debtor, such contract constitutes a novation and is not within the statute of frauds.</p>

<p>Sales.</p> <p>A verdict of a jury based upon conflicting evidence sustained, and judgment affirmed in an action brought to recover the price of a lot of pins.</p>

<p>Judgments and Deerees—Of Justice—Limitations—Parol Promise of Defendant to Pay.</p> <p>A judgment which has become barred by the statute of limitations can not he revived by a parol promise of the defendant to pay the same.</p>

William Marsh, Judge, presiding.' Acceptance is a pure question of fact, to be found by the jury, unbiased by intimations from the court.