Volume 5 — Illinois Appellate Court Reports

<p>1. Confession of judgment—Election to declare whole sum due. —The authority to confess a judgment without process must be clear and explicit, and must be strictly pursued. So, where it was stipulated that upon failure for thirty days to pay any of the interest notes mentioned, the sum represented by the principal note might be declared due at the election of the legal holder thereof; and a judgment was entered by confession for the whole sum upon failure to pay an interest note, the failure to pay interest, and the election to declare the whole sum due, must clearly appear by competent proof, to authorize the entry of a judgment thereon.</p> <p>2. Proof of failure and election.—The declaration was upon the notes, with a cognovit, and alleged a failure for thirty days to pay the interest, and the election of the holder to declare the whole sum due. Copies of the notes were attached to the declaration. The only proof was the affidavit of the general agent of appellee as to the execution of the note and warrant of attorney, and that the appellant was “ the maker of the annexed note and power of attorney, and that the signatures to said note and power.of attorney are the genuine signatures’’ of the appellant. The affidavit further stated that the affiant had read said declaration, and that the statements therein concerning said note and the maturity thereof, were true. The original note and warrant of attorney were not filed in the ■ case, nor exhibited to the court. Held, that the proof of execution,, failure to .pay and election was insufficient to support the judgment.</p> <p>3. Failure to surrender interest notes not due.—A failure on the part of the plaintiff to surrender the interest notes not due is not of itself sufficient ground for vacating the judgment. If the defendant was entitled to any relief in this respect, it was incumbent upon him to make proof of that fact, when the court might vacate the judgment or give other relief as would be proper.</p> <p>4. Presumption in favor of judgment.—Where a judgment by confession is entered in term time, and the record is silent as to whether any evidence was heard by the court, it will be presumed that proof of every fact necessary to warrant the entry of judgment was duly presented. Where, however, all the evidence actually heard is preserved in the record, and the bill of exceptions recites that fact, the presumption cannot be indulged contrary to the recitals in the bill of exceptions.</p>

<p>Contract—Services.—The evidence in this case tending to show that the services for which plaintiff claims compensation were rendered by him as the employe of F. & R. and not as the servant of the defendant, and were a part of his duties under his employment by that firm, and were paid for by the salary he received from them, he is not entitled to recover therefor against the defendant.</p>

<p>Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Savings banks—Relation of depositor.—By the terms of the charter and its mode of dealing, the relation between the bank and its depositors was not that of trustee and cestui que trust, but merely that of debtor and creditor; and the funds arising from the savings deposits were the absolute property of the bank, so that it had full power to negotiate or pledge any of its securities obtained by loaning said funds.</p> <p>2. Practice—Former decisions op this court.—This court cannot sit as a court of appeal to review its own decisions. If parties are dissatisfied with its conclusions, the only mode of obtaining redress in this court is by a petition for a re-hearing. In the absence of such petition the propositions decided are, as between the parties to the suit, res adjudicata, and binding both upon them and upon this court whenever they again arise in the same case and upon the same state of the record.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Promissory note—Indorsement by third party.—Where the name of a party not the payee of a promissory note, is found upon the back of the note, it will be presumed that he indorsed it as guarantor. This presumption may be rebutted by proof that such was not the agreement, but in order to rebut such presumption the proof of a different intention must be clear and satisfactory. .</p> <p>2. Proposition.—Plaintiffs wrote the defendant, returning the notes he had sent them and saying: “The notes ought to have been made payable to you and then you indorse them to us. * * * If you cannot discount them, and will indorse them to us legally we will accept them.” The notes were made payable to a third party, and on receipt of this letter, the defendant wrote his name across the back and returned them to plaintiffs, who retained them .until suit brought. Held, that plaintiffs’ proposition was for a simple nd orsement, but it was superseded by defendant’s counter proposition to become a guarantor, as indicated by writing his name across the back of the note, and this proposition having been accepted by plaintiffs, they were justified in writing the guaranties over defendant’s signatures.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Henry Booth,' Judge, presiding.</p>

S. M. Moore, Judge, presiding. This is an appeal from the decree of the Superior Court of Cook county,'sustaining a'demurrer to and dismissing the plaintiff’s bill filed in that court, with costs.

<p>I; Statement.,—Appellant sold to Brackett his interest in the Western Furniture Trade, a paper published in Chicago, and stipulated not to become in any way interested in a newspaper of similar character within the limits of Cook county, so long as Brackett should continue the publication of the paper above mentioned. Brackett 'took in other persons as partners, and afterwards sold his interest in the paper to them, and gave the usual notice of dissolution of partnership and sale. Appellant then commenced the publication of the American Furniture Gazette. Afterwards Brackett, claiming a failure of his former partners to make their payments to him, and that such sale was conditional, took possession of the paper sold by him, and brought a bill to enjoin appellant from publishing the last mentioned paper.</p> <p>2. Contracts in restraint oe trade.—It is the settled rule of law that any agreement in general restraint of trade is illegal, as being against public policy. But there are exceptions to the rule, where the restraint is limited as to time, or place or persons. In such cases, if the contract is based upon a good and valuable consideration and the limitation is reasonable, it will be upheld. Even in the latter case the law presumes it void until the consideration and reasonableness of the limitation is shown.</p> <p>3. Construction of such contracts.—Such being the light in which even limited contracts are viewed, the lawjwill not extend to them the rules of liberal interpretation, but will apply those of strict construction only.</p> <p>4.. Estoppel in pais.—In this case the complainant having by the circulation of printed circulars, and by verbal statements, announced that he had sold his interest in the paper in question, and had no further connection with it or its management, he is now estopped to deny that fact, or to claim that the sale by him was only conditional.</p> <p>5. Injunction without limitation.—The covenant of the defendant bound him not to publish a paper within the limits of Cook county. The injunction restrained him from making such publication anywhere, and is therefore erroneous.</p>

<p>Appeal from, the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p>

<p>Negligence—Crossing railroad track.—It is the duty of persons about to cross a railway track to look about them and see if there is danger; not to go recklessly upon the road, but take the proper precautions themselves to avoid accidents. If a party rushes into danger which by ordinary care he could have seen and avoided, no rule of law or justice can be invoked to compensate him for an injury he may thereby receive.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Cart, Judge, presiding.</p>

<p>1. Judgment against evidence.—Questions of fact mainly are involved in this case. The court reviews the testimony, and is of opinion that the judgment is unsupported by the evidence, and it is therefore reversed.</p> <p>2. Evidence—Cross-examination.—A party has no right to cross-examine a witness except as to facts and circumstances connected with the matters stated in his direct examination. If he wishes to examine him as to other matters, he must do so by making the witness his own, by calling him as such in the subsequent progress of the case.</p>

<p>Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.</p>

<p>Verdict against evidence.—The court is of opinion that the verdict is not sustained by the evidence, and reverses the judgment for a new trial.</p>

<p>Practice—Bill oe exceptions—What must be shown.—All motions and orders striking pleas and other papers from the files, motions for continnance, and all rulings made by the court on the trial or during the progress of the cause, except such as belong to the record proper, must be preserved in the bill of exceptions. An entry of an exception by the clerk on the record is not sufficient.</p>

<p>1. Replevin—Writ of retorno.—The pleas of non cepit and non detinet in replevin, admit property in the plaintiff, and put in issue only the wrongful taking and detention; and under those pleas alone, if the plaintiff fails to sustain his case, it is error to award a return of the property to the defendant.</p> <p>2. When writ will be awarded.—To justify a judgment for the return of the property, there must he not only a plea of property in the defendant or a stranger, but the verdict must find the property not in the plaintiff.</p> <p>8. Verdict upon part of the issues only.—If a jury finds hut part of the matter put in issue, and says nothing as to the residue, the verdict is ill, and a venire facias de novo should issue if no judgment is given; but if judgment is entered upon the verdict, it should be reversed.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. Mason B. Looms, Judge, presiding.</p>

<p>1. Evidence—Admissions.—Where, at the time of the making- of the alleged admissions, the party making them was indebted to the same parties upon other notes which he did not dispute, and it does not appear that the notes in suit were shown to him at that time, evidence of admissions claimed to apply to them is not sufficient to be submitted to the jury.</p> <p>■ 2. • Note obtained bt fraud — Ratification.— Where the execution of a note is obtained by fraud and circumvention, so that it would be void even in the hands of a bona fide assignee, the ratification which would render it valid could be little less than some act amounting to a re-issuance by the maker, or to an estoppel in pais, because it was ab initio void. The burden of proof is upon the plaintiff to show such ratification.</p>

the Superior Court of Cook county; the Hon. S. M. Mooke, Judge, presiding.

<p>Appeal from the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.</p>

<p>Appeal from the County Court of Coolc county; the Hon. Mason B. Loomis, Judge, presiding.</p>

S. M. Moobe, Judge, presiding. This is an. appeal by the Hyde Park Gras Company, a corporation, from the decree of the Superior Court… Held: or re-issued by him, and pay to said company the amount of his indebtedness to said company, as herein above adjudged, which indebtedness, after allowing credit for the amount.paid by said Woolley for said bonds, such allowance to be made only on the return and cancellation of said bonds, is found at the date of this decree to be the…

<p>Appeal from the Circnit Court of Cook county; the Hon. John G. Bogers, Judge, presiding.</p>

<p>1. Money had and received—Privity oe contract. — Suit was brought against the appellant corporation to recover for money said to have been collected by it, but not paid over. The evidence showed that appellant had no existence as a corporation until long after, and never received appellee’s claim for collection, but that the same was collected, if at all, through the agency of one Baker doing business as Tappan, McKillop & Co. IIeld, that the action could not he maintained against appellant.</p> <p>2. Practice—Proof under the general issue.—Whatever the plaintiffs were required to prove, the defendants may disprove under the general issue; so, evidence that the defendant was not in existence at the time of the alleged contract could be shown under the general issue.</p> <p>3. Evidence—Admissions by attorney.—The evidence to show the money had been collected, was but the affirmation of the plaintiff that itwas so, and an acquiescence in the statement on the part of appellant’s attorney, who had no personal knowledge in regard to it. This is insufficient. There is no proof that the attorney had authority to bind appellant by his admissions.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding.</p>

<p>1. Services performed—Burden of proof.—Where services are rendered at the request of another or under circumstances showing an acceptance of such services and the benefits arising therefrom, the law implies a promise to pay for such services, and in the absence of any agreement as to the amount, a promise to pay what they are reasonably worth. To overcome this, presumption and show that the services were to be performed gratuitously, the burden of proof is upon the party claiming it to prove that fact. ■</p> <p>2. Instruction as to discrediting a witness.—The false swearing which discredits a witness must be done knowingly or willfully.</p> <p>3. Practice—Modifying instructions.—A party cannot complain if the court modifies an improper instruction asked by him, nor if the court uses it as the basis of a new instruction by the court of its own motion, which a court may always give subject to the right of either party to except thereto.</p>

<p>1. Sale under several executions.—Whether a sheriff holding several executions against the same defendant may sell under them all at once, the court do not decide; but under the circumstances in this case, a sale under the first execution passed all the property to the purchaser, irrespective of anything attempted to be done under the others; the property brought the same price as though no attempt had been made to sell under the junior executions, and no one has been prejudiced by the irregularity.</p> <p>2. Sale in parcels.—The language of the statute seems to make it imperative that where property is susceptible of division, it should be sold in separate tracts, but before the court would be warranted in setting aside a sale en masse for that reason, it must appear that the property was susceptible of division.</p> <p>3. Junior judgments — Lien transferred to fund.— By a sale under the senior judgment, the junior lie..s, so far as the land is concerned, were cut off; but the liens thus extinguished were transferred to the fund thereby created, and were entitled to payment therefrom in the order of their priority.</p> <p>4. Priority of liens.—Judgment for $150.85 was recovered against appellee S., which, became a valid first lien ¡on lots 25 and 26. Shortly after, S. borrowed §500, and secured the same by deed of trust to appellant as trustee, upon lot 25. After the execution of this trust deed, several judgments in attachment suits were rendered against appellee S. and executions issued upon all of them. Sale was made upon all the executions at once, and both lots sold en masse, a junior execution creditor becoming the purchaser for §2,000, which sum was afterwards distributed among the several judgment creditors in the order of their priority. Held, that the proceeds of lot 25 should have been applied, at least after paying the first judgment, to the satisfaction of the deed of trust. The second and third judgments being junior liens, must be considered as paid out' of the proceeds of lot 26.</p> <p>5. Power of court of equity to follow fund.—Where the surplus out of which complainants were entitled to have satisfaction of their trust deed, can be traced to the hands of the defendants, a court of equity will follow it and compel them to return it to the party to whom it rightfully belongs.</p> <p>6. Parties—-Trustee and cestui que trust.—In proceedings of this character, where the validity of a trust deed is called in question, the trustee is not a proper representative of the cestui que trust. He is undoubtedly a proper party, but the cestui que trust is also a necessary party.</p>

<p>Mortgage—Foreclosure—Payment.—The decision of this case turns upon questions of fact. The court finds from the testimony that the note and mortgage in question were given to secure the payment of pre-existing indebtedness of the mortgagor to the bank, and that prior to the filing of the bill of complaint such indebtedness had been fully paid and the evidence therefor surrendered to the mortgagor; that as to one item of such indebtedness, it had been from time to time renewed, but from the custom, of the hank in malting such renewals—by a new loan, and payment of the old note out of the new loan—the original indebtedness had been paid.</p>

<p>1. Cabbies of passengers—Duty to provide cabs.—A railroad company is not bound under all circumstances to furnish a sufficient number of cars so that all who may apply for transportation may be provided with seats. Unforeseen emergencies may often arise when the performance of such duty would involve impossibilities. Where passengers apply for transportation in extraordinary and unexpected numbers, it should be held only to the exercise of such reasonable diligence in providing cars as may be consistent with the particular circumstances of each case.</p> <p>2. Care required.—There is a broad distinction between the duties and liabilities of common carriers of freight and of passengers. The former are under an absolute duty to transport and deliver property, from which, when once undertaken, nothing can relieve them but the act of God or the public enemy. The law enjoins upon the latter a very high degree of care and diligence, but unless there is some failure in the exercise of such care and diligence there is no liability for any injuries their passengers may receive.</p> <p>3. Duty of passenger to avoid risk.—If the plaintiff could have avoided the injury by entering the cars at any time immediately proceeding the accident, the evidence showing that he had knowledge that there was room inside, he was bound to occupy the same. The plaintiff was bound to the exercise of ordinary diligence in guarding against danger and providing for his own safety, and even though he might not have known there was room in the cars for him, yet if circumstances were transpiring before him from which he might reasonably infer that such was the case, it was his duty to act upon such inference and ascertain its truth.</p>

<p>Time to pile record.—Where a record is not filed in this court within the time limited by the statute for filing the same, the appellant has no standing in court, and the appeal must be dismissed.</p>

<p>1. Jurisdiction—Amount dub prom garnishee —County courts have jurisdiction where the amount claimed or value of the property in dispute does not exceed one thousand dollars, but they have no jurisdiction of a claim on behalf of a defendant in attachment against a garnishee exceeding one thous- and dollars, although the amount of the judgment rendered against the defendant in attachment, and upon which the garnishment proceeding is based, is less than one thousand dollars.</p> <p>2. Practice in garnishment—Parties to the record.—The defendant in the attachment is, in contemplation of law, the plaintiff in the garnishment proceedings, and the matters between him and the garnishee constitute the case, and it is the amount claimed as between the debtor and garnishee which constitutes the test of jurisdiction.</p>

Mason B. Loomis, Judge, presiding. This was an action of assumpsit in the County Court of Cook county.

<p>Appeal from the Circuit Court of Cook county; the Hon. W. W. Harwell, Judge, presiding.</p>

<p>1. Appeals—Must be from final judgment.—The Constitution and statutes have vested this court with appellate jurisdiction only, and that jurisdiction cannot be exercised so long as the cause is pending in and under the control of the court below. There must be a final judgment or disposition of the cause in the court below, before this court can take cognizance of an appeal or writ of error therein.</p> <p>2. Agreed case.—A case cannot be brought to this court under the 74th or 75th section of the Practice Act, until after final judgment thereon has been entered in the court below.</p> <p>3. Refusal of injunction pendente lite not a final decree.— The refusal of the Circuit Court to grant an injunction pendente lite is not a final decree from which an appeal can be prosecuted.</p>

<p>1. Master and servant—Fitness of machinery furnished to servant.—An employer is not held to be a warrantor of the suitableness or absolute safety of machinery furnished by him for the use of his employe; he is only bound to exercise reasonable care in the selection of machinery and material. In this case the court is of opinion that the employe was guilty of equal if not greater negligence than the employer, and hence is not entitled to a recovery.</p> <p>2. Plaintiff must show bub cabe.—In an action by an employe against his employer for an injury resulting from the latter’s negligence, the plaintiff must prove, not only negligence on the part of the employer, and resulting injury to himself, but also that he was not guilty of any negligence or want of care which contributed to the injury.</p>

<p>Appeals—Only from final orders, etc.—To a petition for mandamus the defendant filed a demurrer which was sustained, and an exception taken to the ruling of the court thereon. The record shows that an appeal was prayed and granted, but does not show that the plaintiff elected to abide by his petition, or that any final judgment was rendered. Held, that the appeal would not lie. A joinder in error by appellee gives jurisdiction of the person only, but not of the subject matter.</p>

W. K. McAllister, Judge, presiding. This was an action on the case, brought by John Lewis, administrator of the estate of Martin English, deceased, against the Chicago City Railway Company to recover damages resulting from the death of English through the alleged negligence of the company in the running of its street cars.

John G-. Rogkees, Judge, presiding. This was assumpsit by Davison, as lessor, against the Chicago legal Hews Company, as lessees, to recover rent claimed to bo due upon two certain demises, known as Hos. 151 to 153 Fifth avenue, in the city of Chicago. The first lease was made December 1, 1874, of the main floor of said numbers, to hold until May 1, 1878, for the rental of $7,475, payable in monthly installments.

<p>1. Privity or contract.—The evidence failing to show that the work which was the foundation of this action was done at the instance or request of the defendant, there is no privity of contract between the parties, and the plaintiff cannot recover.</p> <p>2. Special agency.—In cases of a special agency, limited to one transaction, the law raises no inference that the agency continues or extends to other matters occurring years after.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John G. ¡Rogers, Judge, presiding.</p>

S. M. Moore, Judge, presiding. August 27, 1872, the South Chicago Land and Building Association made a series of six promissory notes, amounting in all to $48,000, payable to the order of Asbury F. Fawsett, with interest at 8 per cent., and secured the same by deed of trust upon its real estate.

<p>1. Evidence—Proof of death.—In an action against a life insurance company for a death loss, the proofs of death required by the policy were offered and received generally as evidence. Under such circumstances they should be considered in all their parts, and effect should be given to all they prove or tend to prove.</p> <p>3. Practice—Motion to strike out evidence.—A motion to strike, out the plaintiff’s evidence is in the nature of a demurrer to the evidence, and like a demurrer admits not only all the facts proved, but also every conclusion which the jury might fairly and reasonably have drawn therefrom.</p> <p>3. Life insurance—Suicide—Accidental death by insured’s own hand.—The testimony as to the death of the insured tended to show that by inadvertence, or perhaps through negligence, he took an overdose of laudanum, which caused his death. Held, that in the case of a sane person, where there is an absence both of intention and culpable neglect, the death of the insured must be regarded as accidental and not within the proviso of the policy against self-destruction; that the question of the negligence of the insured was for the jury.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding.</p>

<p>1. Mechanics’ Lien — Contract partly expressed and partly implied.—In a proceeding to enforce a mechanic’s lien, where the contract is expressed as to what materials shall be furnished, or work done, but silent as to the time of performance, the law will imply that it was to be preformed within a reasonable time.</p> <p>2. Limitation of time for performance.—Where the contract was express as to the work to be done, and materials to be furnished, and implied as to the time of performance, a performance within one year from the commencement of the work is a sufficient compliance with the present law relating to mechanic’s liens.</p> <p>3. Variance.—The petition alleged a contract in writing and express, and the proofs showed a contract partly in writing and partly in parol, and it was contended there was a variance. Held, that the contract being set out in extenso in the petition, any error in stating its legal effect will be rejected as surplusage.</p> <p>4. Description of premises in the contract.—Where a contract is made to furnish materials for a building in process of erection, it is sufficient, although the ground on which it is to he erected is not described, so, where the original contract sufficiently described the houses and lots, and a supplemental contract was afterwards made for furnishing materials for six other bouses being built by the same parties, and describing the premises as “ the south six lots,” held, that the two would be construed as one contract, and there was a sufficient description.</p> <p>5. Parol contract — Sale — Subsequent written contract. — Where the contract under which petitioners agreed to furnish materials was by parol, and after making such contract the lots were sold, and deed recorded, and subsequently such contract was merged in a written agreement with the former owner of the land, the petitioner is not entitled to a lien, there being nothing to show that the written contract declared upon was simply a reduction to writing of the previous parol agreement.</p> <p>6. Incumbrances.—The intervening petition of certain creditors claiming to hold incumbrances upon the premises superior to the rights of the lien petitioners, fails to show that at the time of filing the petition for a lien they were creditors, a fact which it was incumbent upon them to prove if they would avail themselves of the six months’ limitation in the lien law.</p> <p>7. Purchaser with notice.'—-A party purchasing premises on which . buildings are in process of erection, having knowledge of the same, is hound to make inquiry as to the rights of parties furnishing materials or performing work thereon, and is charged with constructive if not actual notice of their lien. A sale of property after the lien is fixed, to a party cognizant of the same, gives him no rights as against the lien.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.</p>

<p>1. Writ of error—Will hot lie except to final judgment.—In a proceeding under the statute to establish the boundaries to lands, where a , trial by jury is had and a verdict rendered against the petitioner, and the court, overruling petitioner’s motion for new trial, set aside the report of the commissioner, a writ of error will not lie to the action of the court below in refusing to award a new trial; it is not a final determination of the cause.</p> <p>2. Practice—Re-survey of lands.—Upon the rejection by the court of the report of the commission, the petitioner should have moved for a new survey by the commission, or the appointment of a new commission to proceed ele novo, and it would have been the duty of the court to grant it; or if the petitioner was satisfied with the report of the commission and desired to test the action of the court in not setting aside the verdict, he should have moved the court to dismiss his petition, and thus finally dispose of the case.</p> <p>3. Appeal—Writ of error.—Although the statute provides that an appeal from the order approving the survey shall be made within thirty days this does not deny the right to bring a writ of error within the usual limitation to review any other final action of the court in the same cause.</p>

<p>Contracts—Rescission.—Appellee conveyed to appellant certain lands, he to pay her therefor an annuity of $112.50 during her life. Subsequently, on the 13th day of the same month, appellee entered into an agreement with appellant, whereby, in consideration that he would support her during the remainder of her life, she agreed to give him $112.50 yearly, this sum to be paid by giving him a receipt for the annuity due from him as above. She subsequently left him on account of alleged ill-treatment, and after recovering judgment for the annuity then in arrears, and a decree in chancery providing for the payment of future annuities, brought this suit to recover for breach of the contract to support; held, that she could not recover; that by the subsequent agreement appellant was released from payment of the annuity, but appellee’s election to sue him for the annuity was an avoidance of that agreement and an election to rescind it.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. J. W. Cochean, Judge, presiding.</p>

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

<p>Verdict against evidence.—The question in this case is solely upon the right of appellee to recover for alleged services, and the court finds upon review of the testimony that the verdict is not warranted by the evidence.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. J. W. Cochran, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. K. J. Pillsbury, Judge, presiding.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Francis Goodspeed, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Ho* J. W. Cochran, Judge, presiding.</p>

<p>1. Husband and wife—Wife’s property.—The occupancy and cultivation in apparent control by the husband, of the wife’s lands, where nothing appears to show his or her actual interest in them, will raise a presumption of tenancy in him, and consequent ownership of the crop, subject to her lien for a reasonable rent, but this is not conclusive upon her right to the crop, and is liable to be overcome by proof tending to show that his preformance of such labor is fairly consistent with her claim to the crop.</p> <p>2. Labor by the husband.—The law does not require that to establish and preserve the right of the wife to the labor of the husband, she should limit the amount to be performed, the act of 1874 expressly contemplates his labor for her as enuring to her benefit, without regard to its amount.</p> <p>3. Minor children.—The father has no present valuable property in the future labor of a minor child, and does not by emancipating him withdraw from his creditors any property or fund to which they are legally entitled for the satisfaction of their claims.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. J. W. Cochean, Judge, presiding.</p>

<p>Warranty—Breach—Damages.—A party who holds a warranty from another on a piece of property and there is a breach of such warranly, may recover his proximate and necessary damages of the warrantor, and no more. He should he fully indemnified, after having used reasonable care to prevent unnecessary loss, but he cannot be allowed to recover damages which he has unnecessarily brought upon himself by his willful misconduct.</p>

<p>Writ op error—Will not lib to decision op judge in vacation releasing relator on habeas corpus.—A writ of error will not lie at the suit of a defendant, to reverso the action of a circuit judge had in vacation, granting a writ of habeas corpus, and discharging the relator from imprisonment.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. J. W. Cochran, Judge, presiding.</p>

<p>Practice on appeal—Time for filing record .—Where the last day of the term at which a judgment or decree appealed from is rendered, is more than twenty days prior to the first day of the succeeding term of this court, the record should be filed with the clerk of this court, on or before the second day of the term, unless further'time to file the same shall be granted upon good cause shown. Application for such further time must be made to the couit before the time allowed by the statute within which to file the record has expired.</p>

<p>Practice—Dismissal of appeal.—The record not being filed in time, the appeal is dismissed.</p>

<p>Amending judgment at subsequent term—Replevin—Return of property.—In replevin under the issue of property in a third person, not in plaintiff, there was a verdict for the defendant, and judgment on the verdict, but no order for return of the property. At a subsequent term, the court amended the judgment so as to order a return of the property. The only authority for amending the judgment was the judge’s minutes, which showed only “judgment on verdict” and for costs. Held, that the court had no power to so amend the judgment after the term had passed.</p>

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

<p>Confession of judgment—In .vacation—Before maturity of note.—A warrant of attorney attached to a note authorizing confession of judgment thereon at any time after its date, will support a judgment entered in vacation in a court of record, as well as if entered in term time. As it authorized the entry of such judgment at any time after its date, it was nob necessary that the note should he due at the time of the entry of judgment.</p>

<p>Surprise—Trial in absence oe counsel—The facts alleged by affidavits in this case show that there was an agrément between counsel that the case should be tried at an hour named, and if reached before, notice was to be given counsel. In violation of this agreement counsel for appellee proceeded to trial before the hour named, in the absence of the opposing counsel, and without notice to him, Held, good cause for setting aside the judgment.</p>

<p>Fraudulent representations — Insufficiency of evidence. — The action was for fraud and deceit in willfully misrepresenting the title to some com purchased by appellee. This court is of opinion the judgment is not sustained by the evidence, and reverse the same.</p>

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. Josiah McRoberts, Judge, presiding.</p>

<p>Pbactice—Appeal—Not from order dissolving injunction.—An appeal will not lie from an order dissolving an injunction, where an injunction is not the only relief prayed for, and the cause is still pending in the court helow for a trial upon the merits.</p>

<p>1. Evidence—Of poverty of plaintiff inadmissible.—In an action against a village corporation for damages for injuries arising from the negligence of the corporation, evidence that the plaintiff is a poor man, and of the destitution of his family, is irrelevant, and ought not to be admitted.</p> <p>2. Proceedings for a compromise.—Evidence of a resolution by the board of trustees of the village appointing a committee to settle with the plaintiff, passed with a view to effecting a compromise, does not tend to show an admission of liability, and is not competent.</p>

<p>Usury—Penalty after maturity of note.—The note in this case was for $550, in the usual form, with the following clause inserted : “If not paid when due, then and thereafter, at the rate of two per cent, per month, as liquidated damages.” It was conceded that at the time of executing the note, $50 of the amount expressed to have been loaned was withheld as interest for the first six months, and that this was usurious. Held, that the contract being tainted with usury at its inception, it was unlawful throughout, and could not be enforced as to any of its provisions.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Geo. W. Stiff, Judge presiding.</p>

J. W. Cochean, Judge, presiding. Bill to foreclose mortgage, filed April 21, 1879, by appellee against appellant, and L. W. James, trustee for Western Bank of Louisville, Ky.

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

N. M. Lands, Judge, presiding. Action of assumpsit commenced by defendant in error against plaintiff in error. The consolidated common counts constitute the declaration.

<p>Pbactice—Filins becobd in time—Stipulations op pabties.—An appellant must file his record in this court within the first two days of the first term succeeding that at which the judgment was rendered, or the appeal will be dismissed. The statute is peremptory and must be complied with, and this court cannot recognize stipulations of counsel that the case may be heard the same as if the record had been properly filed.</p>

<p>Presumption in favor of judgment.—The Circuit Court is a court of general jurisdiction, and its judgments will be presumed to have been regularly had and rendered upon proper proof, unless the contrary affirmatively appears from the record itself.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. . S. P. Shops, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. W. H. Hess, Judge, presiding.</p>

<p>Error to the Circuit Court of Christian county; the Hon. W. ¡R. Welch, Judge, presiding.</p>

<p>Error to the County Court of Cass county ; the Hon. J; W. Rearick, Judge, presiding.</p>

<p>Appeal from the County Court of Cass county; the Hon. J. W. Eearick, Judge, presiding.</p>

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

<p>Mabeied womeu— Charging separate estate—Debt of auother. —Prior to the statute of 1874 concerning husband and wife, a married woman was incapable of charging her real estate by mortgage without being joined in the deed, by her husband. Even if she was capable of charging her separate estate for her own debts, she could not by her separate deed charge it for the debt of another person.</p>

<p>Comparative ueqi-igeuce.—Where a party claims damages for an injury resulting from the negligence of another, he must show, either that he was free from and the defendant was guilty of negligence; or, if the plaintiff was guilty of negligence, that such negligence was slight and that of the defendant gross in comparison.</p>

<p>1. Practice—Defenses arising after suit brought.—It is a general rule of pleading that matters of defense arising after action brought should be taken advantage of by apleajiMis darrien continuance. Where an agreement is made between parties to dismiss a suit, the same may be done upon motion, if there is no dispute, but where the motion to dismiss is resisted upon an issue of fact as respects the agreement, the one alleging the agreement should be put upon his plea.</p> <p>2. Oral testimony in support of motions.—It is improper to allow oral evidence to rebut affidavits on a hearing of a motion to set aside a default and motions of like character.</p>

<p>Practice—Amendment of bill of exceptions.—Where a bill of exceptions has been settled, signed and filed in the proper court, and the time has expired within which the same was to be filed, the judge has no power to make any change in the record in vacation. Amendments to the record under such circumstances could only be made in the court below, in term time, on notice.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.</p>

<p>Practice—Finding of court must be excepted to.—Where a cause is tried by the court without a jury, the finding of the court cannot be questioned on appeal unless the record shows that exceptions were taken to the decision and a motion made for a new trial and overruled, and exceptions taken.</p>

<p>Appeal in revenue cases.—In this case the court deeming the questions involved of sufficient importance, affirm the judgment below and certify the case to the Supreme Court. A doubt is expressed whether, under the law of 1879, this court can take cognizance of appeals in cases relating to the revenue.</p>

<p>1. Common cabbies—Duty to deliveb fbeight in time.—A common carrier cannot escape liability for loss occasioned by delay in transportation of goods by showing the delay to have been caused by the ordinary accidents of railroad traffic. If the carrier has made an express contract to deliver by a specific time, unavoidable accident will not excuse him, and in the absence of an express contract, he is bound to deliver in a reasonable time, according to the usual course of business, with all reasonable dispatch.</p> <p>2. Knowledge of time fob deliveby.—Where a carrier receives goods with full knowledge that they are expected to be delivered by a certain time, he assumes the liability of delivering them in time or showing that he used every reasonable effort to make the delivery.</p>

<p>Attachment—Travebse of affidavit—Evidence of intention.— The cause stated in the affidavit for attachment was that the defendant was a non-resident. Upon a traverse of this allegation defendant offered in evidence the depositions of witnesses who deposed as to statements made by him at about the time of his departure for Minnesota, expressive of his intention to return to this state after the completion of his business there. Held, that the testimony was competent and should have been admitted.</p>

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

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

<p>1. Amendments—Not to make a new case against new parties.— The case as tried before the magistrate and as entered in the Circuit Court, was a trial of right of property between appellee and R. and H. In the Circuit Court, appellee was permitted to amend by changing the form of action to replevin, and dismissing as to all the defendants to the original suit, and substituting new parties defendant. Reid, that amendments may be allowed to the extent of discontinuing as to any joint plaintiff or defendant, and changing the form of action, so long as one or more of the original plaintiffs and defendants remain parties, but no amendment on appeal can be permitted which makes an entirely new case against new parties to the record.</p> <p>2. Change to replevin—Writ must issue.—On changing the action to replevin, judgment was rendered against appellant without the issue or service upon him of any writ, or the entry of his appearance in the case. This was error. He was entitled to the issuance of a writ and a bond as provided by statute before the property could be taken from him.</p>

<p>1. Statement.—A., D. and F., doing business as private bankers, assigned by contract all their banking interest to the Coles County Bank; the bank assuming to pay all the indebtedness of the firm of A., D. and F., and pay a balance agreed upon, and said firm at the same time giving bond to save the bank harmless from loss on bad notes, overdrafts, etc., assigned to it. The bank paid a greater part of the indebtedness assumed, and after-wards becoming insolvent, appellant was chosen its assignee in bankruptcy.</p> <p>Many of the notes and overdrafts assigned to the bank proved worthless, and appellant, as assignee, sought to enforce the liability on the bond aforesaid in the county court against the estate of F., deceased.</p> <p>2. Rights op assignee.—The assignee in bankruptcy succeeds to all the legal and equitable rights of the bankrupt, and if before bankruptcy this corporation was entitled to an allowance against the estate of F., the assignee is entitled to it now.</p> <p>3. Construction op the bond.—The bond was intended to secure the execution of the contract of assignment, and it makes no difference under what name the promise was made, the bank was legally and equitably entitled to the benefit of it.</p> <p>4. Appellant’s rights not dependent upon condition.—In order to entitle appellant to an allowance, it is not necessary that he should show that all the indebtedness assumed by the bank had been paid. The undertaking in the bond was absolute, and the order of time in which the several acts of the parties were to be performed does not require payment of those debts as a condition precedent.</p> <p>5. County court jurisdiction.—The county court has both legal and equitable jurisdiction in the allowance of money demands, and can fully and completely adjust and settle the rights of the parties in this case.</p> <p>6. Firm debt—Allowance against separate estate op one member.—Where there is no joint fund, nor any surviving solvent partner, joint creditors may participate in the estate of the deceased partner equally with private creditors.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epleb, Judge, presiding.</p>

<p>Eeeob to the Circuit Court of Macoupin county; the Hon. C. S. Zane, Judge, presiding!</p>

<p>1. Joining issue on defective plea.—Although the plea of nil ciébet is insufficient to an action of debt upon a bond, yet where the plaintiff joins issue upon such plea, he thereby puts in issue every material allegation in the declaration, and the burden of proof is upon him to prove his declaration.</p> <p>2. Collections by justice.—Where a magistrate assumes to act in his official capacity in rendering judgment upon claims left with him for collection, he thereby abandons his agency in respect to such claims, if any such ever existed, and his securities on his official bond are estopped by his own docket from showing that he acted in their collection merely as agent.</p> <p>3. Justice failing to pay over—Demand necessary.—In an action against the sureties of a justice of the peace for a breach of his official bond in failing to pay over moneys collected, the mere, fact that the justice died without paying over the money does not constitute a breach of the bond, without some proof by plaintiff of a demand and refusal of payment, or other omission of official duty.</p>

<p>Appeal from the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.</p>

<p>Appeal from the County Court of Morgan county; the Hon. E. P. Kirby, Judge, presiding.</p>

<p>Appeal from the County Court of Morgan county; the Hon. E. P. Kirby, Judge, presiding.</p>

<p>Opening settled account—Mistake—Laches—Interest.—In order to open a settled account after a long time has elapsed, and the same had been rendered item by item, the evidence should be very clear and satisfactory that a mistake has occurred. And where it appears that the party claiming a mistake arid over-payment had the means at hand of detecting it, the fault is his own if he fails to discover it. He cannot recover interest by way of damages for detention of his money when the delay, if any, was by his own neglect. 6</p>

<p>Practice—Stipulation.—This court has appellate jurisdiction only, and it cannot acquire jurisdiction over the records of inferior courts by agreement of parties. Such records can only be brought to the knowledge of this court by means of the exemplification thereof certified by the clerk of the court. The stipulation of parties that the record filed may be considered the same as if certified by the clerk is not sufficient.</p>

<p>Appeals in bevenue cases.—This is an appeal from the judgment of the County Court for taxes, and the questions involved being important, and the Supreme Court having now exclusive jurisdiction in this class of cases, the judgment below is affirmed, and an appeal ordered to the Supreme Court.</p>

<p>Appeal from the Circuit Court of DeWitt county; The Hon. Lyman Lacey, Judge, presiding.</p>

<p>Appeal from the County Court of Morgan county; the Hon. E. P. Kirby, Judge, presiding.</p>

<p>Appeal from the County Court of Morgan county; the Hon. E. P. Kirby, Judge, presiding.</p>

<p>Error to the Circuit Court of Christian county; the Hon. W. E. Welch, Judge, presiding.</p>

<p>Building contracts—Extras.—This was a claim on account of extra work alleged to have been performed in erecting a building. The contract between the parties provided that if any changes or extras were made or called for, not included in the original contract, such changes and their cost should be determined by a supplemental contract between the parties. Held, that no claim for extras, except the same were specified in writing, or a waiver of that provision of the contract is shown, can be sustained.</p>

<p>Practice—Appeal to supreme court.—In order to entitle a party to an appeal from this court to the Supreme Court, it must appear by the record that it is a case where an appeal is given by law. The court must determine what is the amount in controversy by the record, and not by extrinsic proof. The affidavit of a party that the amount involved is more than one thousand dollars cannot be considered.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.</p>

<p>1. Exemption from civil process.—Civil suits may be prosecuted against a person brought into this State on a criminal process, where the creditor bringing the suit has nothing to do, directly or indirectly, with bringing such debtor within the jurisdiction of the court.</p> <p>2. Monet in bank not exempt.—Money deposited in a bank cannot, under the present statute, be claimed by a debtor as exempt from attachment or garnishment.</p>

<p>Appeal from tlie Circuit Court of Effingham county; the Hon. J. C. Allen, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.</p>

<p>Error to the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Fraudulent representations—Evidence op pormér statements.—In an action against one for fraudulent representations in the sale of land, evidence that the defendant made similar representations to other parties the previous year in reference to the same land, is not admissible. To make such statements competent as showing the quo animo of the defendant, they must have been made near the time of the transaction in question, and must appear to be a part of a general scheme to defraud.</p> <p>2. Measure op damages.—In this action, when the plaintiff retains the title of the land, and does not offer to rescind the contract, the measure of damages is the difference between the value of the land purchased, as it was at the time, and what it would have been worth at the time if it had been as represented by the vendor.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Appeal from the County Court of Vermillion county, the Hon. B. W. Hanford, Judge, presiding.</p>

<p>Appeal from the Oircuit Court of Jackson county; the Hon. Mohboe C. Cbaweobd, Judge, presiding.</p>

<p>Fees and salames—How paid.—Where the county board fixed the salary of the sheriff at $1,200 per annum, and allowed him $800 for pay of deputies, the law contemplates that the expenses of his office, such as pay of deputies, shall first be paid out of the fees received'by him, and the balance applied upon the salary of the sheriff. The expenses of the office can in no event become a charge upon the county. *</p>

<p>Error to the County Court of Richland county; the Hon. F. D. Preston, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Saline county; the Hon. D. M. Browning, Judge, presiding.</p>

<p>1. Evidence—Objections must be made in court below.—An objection to the introduction of an ordinance in evidence must be made upon the trial in the court below. It cannot be raised for the first time in this court.</p> <p>2. Ordinance—Presumptions when admitted in evidence.—Where an ordinance is admitted in evidence without objection, it will he presumed that it was competent testimony, and that all the essential prerequisites to make it so have been complied with.</p> <p>3. Exceptions in ordinance—Dependant must bring himself within.—In an action for the violation of an ordinance prohibiting the sale of liquors, where the ordinance excepts from its provisions sales made in good faith by a druggist for medicinal purposes, the burden is upon the defendant to show that he comes within the excepted provision, if he would rely upon that as a defense.</p>

<p>Appeal from the Circuit Court of Effingham county; the Hon. William C. Jokes, Judge, presiding.</p>

<p>1. Lease—Description.—A lease describing the demised premises as, “ commencing on the west line of the lands owned by the Alton Manufacturing Company, where the same intersects the county road, running thence east on the north line of said road two hundred feet, and extending back or north of equal width, ” is a sufficient description.</p> <p>2. Covenant running with the land.—A covenant that the tenant will “ remove all rubbish and spalls ” at the expiration of the term, runs with the land and is binding upon the assignee of such tenant.</p>

<p>1. Settlement—Evidence.—Both parties agree that there was a final settlement of accounts between them, and the question disputed was as to the terms of settlement. This being the issue, testimony as to their prior dealings was admissible only so far as it might throw light upon the terms of settlement agreed upon.</p> <p>2. Abandonment—Recasting account.—There being no evidence that the defendant had abandoned the settlement agreed upon, it was error to instruct the jury that if the defendant had refused to abide by the adjustment, the plaintiff was at liberty to recast the whole account between him and defendant.</p>

<p>1. Evidence—Impeaching witness.—A witness cannot be impeached by showing that he has at other times made contradictory statements, unless his attention has been directed on his examination to the alleged contradictory statement, particularly specifying the time, place and person to whom it was made.</p> <p>2. Tender on contract.—In an action on a contract begun and prosecuted in a court of record, there can be no tender of unliquidated damages. Where the amount of damages has not been ascertained by anticipatory agreement between the parties, they must be considered as unliquidated.</p> <p>3. Plea of tender.—In an action to recover for services as physician, the defendant pleaded the general issue and a plea of tender as to §37.85; but there was no denial in the latter plea as to the excess claimed by the plaintiff. Issues were joined upon both pleas, and there was a general verdiet for the defendant; and upon this verdict the court allowed the plaintiff to take the sum tendered, and rendered judgment against him for costs. This was error. The verdict, although upon an immaterial issue, went to the whole cause of action, and did not warrant the judgment as entered.</p>