Volume 52 — Illinois Appellate Court Reports

<p>1. Costs—In Chancery, Discretionary.—The statute (Sec. 18, Ch. 88, R. S.), leaves it to the discretion of the court to award costs in all chancery cases, except when the bill is dismissed by the complainant, or on the motion of defendant for want of prosecution. The discretion thus provided for is a sound legal discretion, and should he so exercised as to work no injustice.</p>

<p>Memorandum.—Action for c iminal conversation. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Account—Judgment in Action of. — The judgment that the defendant do account in an action of account is interlocutory and not final. It determines nothing beyond a liability to submit to an accounting. The final judgment in actions of account where the verdict is that the defendant is liable to account, is upon the report of the auditors.</p> <p>2. Appeals—From an Order to Account.—An order to account entered in an action of account is an interlocutory order from which an appeal does not lie.</p> <p>8. Judgments—What Are Not Final—Award of Costs.—That a judgment is filial is not to be determined inferentially from the mere fact that costs and execution thereof are adjudged against one of the parties. The costs are regulated by statute and follow as an incident to final judgment. But the character of the judgment, whether final or interlocutory, is to be determined from other considerations than that it awarded costs. It must, to be final, terminate and completely dispose of the action.</p> <p>4 Costs—Not to be Awarded Until Final Judgment.-—In actions of account there is no warrant in law for adjudging costs against a party resisting Ms liability to account. Upon an interlocutory order to account, costs can not be awarded until final action is had upon the report of the auditors.</p>

<p>Memorandum.—Replevin. Appeal from the Circuit Court of Macoupin County; the Hon. James Fouke, Judge, presiding.</p>

<p>1. Abuse of Legal Process—What is.—Where process has been used for the purpose the law intended it to effect, and without any ulterior unlawful purpose, it can not be said to have been abused. But if it is so used maliciously, and without any honest and reasonable belief of a right to so use it, the person against whom it has been employed, if damaged thereby, may have his action to recover such damages.</p> <p>3. Malicious Use of Process—Nature of the Action.—The action for a malicious and wrongful use of process and a recovery of damages is allowed only when it is made to appear that the use, though legal in form and procedure, was, in fact, wrongful, and that the defendant did not employ it in the honest and reasonable belief that it was just for him to do so, but was actuated and moved by malice.</p> <p>3. Malicious Use of Process— When a Recovery May Be Had in the Absence of Malice.—If the property of a defendant is seized by the wrongful use of process, and such property injured by such seizure or by a custodian having charge of it under the process, recovery may be had in the absence of malice or without regard to the motives that actuated the person at whose instance the process was used.</p> <p>4. Malicious Use of Process—Measure of Damages.—In cases where property has been seized by the wrongful use of process the measure of damages is limited to the special injury and damages to the property.</p> <p>A Damages—Measure of in Cases of Wrongful Use of Process.—Payment of legal costs is the measure of the liability in case of an abuse of process, unless malice and want of reasonable or probable cause may, under the peculiar circumstances of the case, create an exception.</p> <p>6. Legal Process—Wrongful Use of.—Persons charged with the wrongful use of legal process are not to be judged by the actual state of the case in law or in fact, but upon their honest and reasonable belief as to the facts and the legal effect thereof.</p>

<p>1. Highway Tax—Erroneously Paid Over by the Collector—Action for,—An action will not lie in favor of a city, the territory of which is wholly within a township, against the commissioners of highways of the township, to recover one-half of the tax required to be levied by sections 13 and 14, Ch. 121, R. S., and collected for road and bridge purposes on the property lying within an incorporated village, town or city in which the streets and alleys are under the care of the corporation, erroneously paid over by the collector to the treasurer of the highway commissioners.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Fulton County; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>1. Municipal Corporations—Duty as to Streets and Sidewalks.— The law requires a municipal corporation to use ordinary care to keep its streets and sidewalks in a reasonably safe condition. But a person who travels over them has no right to walk recklessly into danger.</p> <p>2. Error—What Can Not be Assigned.—A party can not assign for error an error in an instruction which lie has, himself, induced the court to commit, substantially, in another instruction.</p> <p>3. Objection to Evidence— When Abandoned.— Where an objection to a question was erroneously overruled, but the question in substance being repeated, no objection was made, and the witness was cross-examined upon the same subject, it was held that the objection was abandoned.</p> <p>4. Expert Testimony — Impeachment. — Where a physician was shown to be competent to testify as an expert, being a graduate in medicine and in active practice for fifteen years, it was held that evidence that he had been sued for malpractice and adjudged guilty and that his professional standing was not good, had no tendency to impeach his veracity or his memory.</p> <p>5. . Examination op a Party—Court's Power to Order.—A court has no power to make or enforce an order that the plaintiff submit to an examination of his person by a physician.</p>

<p>Memorandum.—Malicious prosecution. Error to the Circuit Court of Jersey Comity; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Promissory Notes—Payments. Receipts, etc.—In an action upon a promissory note by an administratrix, the defendant produced a receipt dated March 30, 1881, in which it was stated that the deceased had received a sum of money of him to be credited on a note held against him for §250. The date of the note was not given. The receipt did not describe the note in suit, and therefore it was incumbent upon the defense to show the note sued on was intended.</p>

<p>Memorandum.—Action on a contract to convey real estate. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>Í. Evidence—In Chief and upon Rebuttal.—Where a witness upon his cross-examination explicitly denies certain matters, he can not be again called upon to testify to the same matter’s in rebuttal,</p>

<p>Memorandum.—Action for injuries. Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright. Judge, presiding.</p>

<p>1. Highways—Dedication and Acceptance.—A person platted an addition to a town in which a strip of land was included in certain lots, and afterward executed a written instrument, which was duly recorded, whereby he designated a strip, being fifty feet in width off the east side of said first named strip, as a public street. Afterward the municipal authorities caused a survey of the city, it having been organized as such, and its additions to be made, in which this strip appeared as a street, and 'was reported to the council. Afterward by an act amending the city charter the General Assembly declared that this survey, upon being spread on the county records, should be the only legal and correct survey of the city. It was held that these acts amounted to an acceptance of the street by the public.</p>

Memorandum.—Action for personal injuries. In the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendants.

<p>1. Paupers.—Necessaries Furnished by Private Persons.—A county is liable for necessaries furnished a pauper upon the order of a supervisor.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Fulton County; the Hon. Oscar P. Bonney, Judge, presiding.</p>

<p>1. Deceit—False Representations as to Quality of Land Sold.—An action for deceit will lie for falsely and fraudulently representing the quantity of a tract of land and thereby deceitfully inducing a person to buy the same.</p> <p>2. Variance—Between Proof and Declaration May be Waived.—A variance between the allegation of the declaration and the proofs is waived by the introduction of the evidence without objection.</p>

<p>1. Negligence—What the Plaintiff Must Prove.—In actions for the recovery of damages resulting from negligent acts, it is incumbent upon the plaintiff to show, first, that the defendant was negligent, as alleged in the declaration; second, that the deceased was then and there exercising ordinary care.</p> <p>2. Railroads—Speed of Trains—When Negligent.—-Within the limits of cities and towns, to run a train at a greater rate of speed than is allowed by ordinance, is legal negligence.</p> <p>3. Instructions—Erroneous—When Not Reversible Error.—The Appellate Court will not reverse a judgment for an error in an instruction when the verdict upon the point in question is right.</p> <p>4. Ordinary Care—A Question for a Jury.—In actions for personal injuries it is a question for the jury to determine whether the plaintiff used such care as might be expected of an ordinarily prudent person.</p> <p>5. Negligence—A Question for a Jury.—In actions for damages resulting from acts of negligence, the question as to whether the defendant has been guilty of negligence is a question of fact for the jury.</p> <p>6. Instructions—Omission in One may be Cured by Another.—Where an omission in one instruction is cured in others given, it is the settled rule not to reverse for this cause.</p> <p>7. Next of Kin—The Husband is, of the Wife.—Under the statute which provides for damages sustained by the widow and next of kin, the husband of a deceased wife, whose death is the result of negligent acts, may maintain the action.</p>

<p>Memorandum.—Creditor’s bill. Appeal from the Circuit Court of Edgar County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>1. Instructions—Verdict for the Defendant—In an action against a railroad company for damages resulting from a death caused by negligence, it not appearing from the plaintiff’s evidence that anything which the company had done tended to render the risks of the service more hazardous than they ordinarily were, and it not appearing that the deceased was in the exercise of ordinary care for his personal safety, the jury were properly directed to return a verdict for the defendant.</p>

Memorandum.—Action for slander. In the Circuit Court of DeWitt County; the Hon. Cyrus Epler, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict and judgment for defendant; plaintiff appeals.

<p>1. Appeals and Writs of Error—Freehold Involved.—When the object of a writ of certiorari was to test the validity of the proceedings by which the road was established, a freehold is involved.</p>

<p>1. Instructions—To Be Based upon the Evidence.—Instructions should be based upon the evidence in the case and where the evidence is conflicting, they should state the law accurately.</p>

<p>Memorandum.—Case for personal injuries. Appeal from the Circuit Court of Edgar County; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>Memorandum.—Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>Memorandum.—Assumpsit for sick benefits, etc. Appeal from the City Court of Canton, Fulton County; the Hon. Jefferson Orr, Circuit Judge, presiding.</p>

<p>1. Contracts—Compromise of Claims Sufficient Consideration.— A compromise of doubtful and conflicting claims is a sufficient consideration for a promise voluntarily made and not induced by fraud, and it is not material to determine whether such claim was legal or otherwise.</p>

<p>Memorandum.—Voluntary assignments. Appeal from an order of the County Court of Hancock County; the Hon. John E. Miller, County Judge, presiding.</p>

<p>1. Contracts—Recovery for Part Performance.—Either party to a contract, whether entire or several, may recover as on an implied agreement, for a partial performance which has been voluntarily accepted by the other with full knowledge of the breach, but subject to the latter’s right to recoup for the failure to fully perform the express contract.</p> <p>2. Express Contracts—Right of Recovery.—Where a person seeks to recover damages on an express contract he must aver and prove that he is not himself in default as to the agreement for the breach of which he sues. The principle is that neither party can obtain the aid of a court to enforce in his favor a contract which, without legal excuse, he has failed to perform on his part.</p>

<p>Memorandum.—Assumpsit for goods sold. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Memorandum.—Bill to enforce provisions of a will. Appeal from the Circuit Court of Montgomery County; the Hon. Jacob Fouke, Judge, presiding.</p>

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

<p>Memorandum.—Case for burning property. Appeal from the Circuit Court of Ford County; the Hon. Alfred Sample, Judge, presiding.</p>

<p>1. Sureties—Ore Official Bond—Measure of Liability.—The sureties on a bond can not be held for the malfeasance of the principal occurring during a previous term of office.</p>

<p>1. Fences—What an Owner of Stock May Rely Upon.—An owner of stock has no legal right to rely upon the sufficiency of the fence of another to restrain his stock, unless it is a partition fence, the defective portion of which has been assigned to such person to maintain.</p> <p>2. Animals—Owner Bound to Restrain at Common Law.—It is the duty of the owner of stock, under the common law rule, to keep it on his own premises. When it escapes to the premises of another, it is a trespasser, and the owner of such premises is under no obligation to keep wells thereon and such places covered to secure its safety.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Montgomery County; the Hon. Jacob Fouke, Judge, presiding.</p>

<p>Memorandum.—Assumpsit to recover back money paid by mistake. Appeal from the Circuit Court of Adams County; the Hon. Oscar P. Bonney, Judge, presiding.</p>

<p>Memorandum.—Assumpsit on a building contract. Appeal from the Circuit Court of Sangamon County; the Hon. Jesse J. Phillips, Judge, presiding.</p>

<p>Memorandum.—Action for use and occupation. Appeal from the Circuit Court of Montgomery County; the Hon. Jacob Fouke, Judge, presiding.</p>

Memorandum.—Action in case against a carrier of freight for failure to safely transport, etc. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.

Memorandum.—Trespass. Assault and battery. In the Circuit Court of Montgomery County; the Hon. Jacob Fouke, Judge, presiding. Declaration in trespass. Pleas, general issue and son assault demesne.

<p>Memorandum.—Assumpsit. Breach of contract of sale. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>1. Jurors—Peremptory Challenge After Panel Accepted.--A. peremptory challenge should not be allowed after the jury has been accepted, without good cause shown.</p> <p>2. Evidence—Habits of Injured Party,—In an action to recover damages for a death by negligent acts, evidence tending to show that the deceased was habitually careless and reckless in the performance of his duty, is competent.</p> <p>3. Instructions—Risks of the Employment.—It is error to instruct the jury that an employe does not assume the risk of a cattle-guard or other danger, even though known to him, unless it has been properly constructed.</p> <p>4. Employes—Duty to Choose the Less Dangerous of Different Ways. —"Where an employe has the power to adopt his own method of doing work, and he voluntarily selects of two ways the more dangerous, he does so at his peril, and can not recover for any injury resulting from such selection; as where a brakeman chose to disconnect cars while in motion when he could have done so while they were not.</p>

<p>1. Wills—Irreconcilable Clauses.—Where two clauses of a will are diametrically, opposed to each other, and are wholly irreconcilable, the latter must prevail; yet such latter clause, if such construction can be fairly given it, should be deemed to affirm, not to contradict, the earlier clause.</p> <p>3, Wills—Clearly Expressed Intention.—A clearly expressed intention in one portion of a will is not to be overcome by a doubtful construction of another portion.</p> <p>3. Wills—Intention of Testator—Codicil.—The intention clearly expressed ought to be carried into execution, unless the codicil unequivocally evinces that the mind of the testator underwent a change, so that he made other provisions for the disposition of his estate entirely inconsistent with and repugnant to his former intention.</p> <p>4. Remainder—The Term as Applied to Personal Property.—The word remainder, as applied to real property, has a technical legal meaning, and while, strictly speaking, there can not be a remainder in personalty, yet for the purpose of convenience of expression an interest in personalty, to take effect after the determination of a prior life estate created by the same instrument, is frequently designated a remainder, and in construing a will the word may with propriety be given a technical legal meaning, or its meaning in popular and common use, as may seem to best accord with the intent of the testator, as gathered from the will as an entirety.</p> <p>5. Wills—Construction of—Codicil.—A testator by his will bequeathed unto J. C. $1,000, to be paid out of his personal estate, and the remainder thereof to his wife for life. He afterward executed a codicil, hi which, after the death of his wife, he bequeathed to L. C. ‘‘all my household and kitchen furniture of every kind whatsoever, all my live stock, and all the personal property on my farm, in my barn or outbuildings, and in addition to this, at the death of my said wife, the full sum of $4,000 out of my personal estate not mentioned in this codicil,” and to E. S. the remainder of his personal estate; it was held, that the legacy to J. C. was not revoked.</p>

<p>1. Production of Books of Account—Power of the County Court.— Under Sec. 128, Ch. 3, R. S., providing that “the books of accounts of any deceased person shall be subject to the inspection of all persons interested therein,” the County Court is vested with general jurisdiction in the settlement of estates, and may make all orders regarding the production of such books as may be necessary to the protection of claimants and others having pecuniary interests involved.</p> <p>2. County Courts—Inherent Powers.—Independent of Sec. 81, Ch. 3, R. S., the County Court has the inherent power, necessary to the due exercise of its general authority, to compel the production of the books of account of the deceased in the hearing of claims against the estate.</p> <p>3. . Administration of Estates—Sale of Books of an Estate— Appellant filed two claims against an estate for salary and profits alleged to be duo him on account of his connection with the business of the deceased. Upon a showing that the books of accounts of the deceased were of importance in reference to these claims, he procured a citation upon the executors and their attorney to produce them. The defense to the citation was that one of the executors, having occasion to use the books in preserving the evidence by bill of exceptions in order to prosecute an appeal from the decision of the Circuit Court in the matter of his claims against the estate, had incorporated them in a bill of exceptions, and to enable him to do so without interference a bill of sale of said books had been made to the attorney by the executors for the sum of §5. It was held that the sale of the books was without authority of law and without permission of the court and was void.</p>

<p>Memorandum.—Proceeding to contest a will. Error to the Circuit Court of Piatt County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>Memorandum.—Voluntary assignments, etc. Appeal from the Circuit Court of Fulton County; the Hon. Oscar P. Bonney, Judge, presiding.</p>

<p>Memorandum.—Foreclosure of mortgage. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Memorandum.—Action for seduction. Error to the Circuit Court of Hancock County; the Hon. Charles J. Schofield, Judge, presiding.</p>

Memorandum.—Action for trespass begun before a justice of the peace and appealed to the Circuit Court of Hancock County, and appealed therefrom; the Hon. Charles J. Scofield, Judge, presiding.

<p>1. Breach op Promise op Marriage—Immoral Consideration.—A promise of marriage founded upon tire consideration of illicit sexual intercourse is void.</p> <p>2. Contract op Marriage—May he Implied.— An express and formal promise is not necessary; a promise may be inferred from the language, conduct, and relations of the parties.</p> <p>3. Contract of Marriage—Acceptance.—An acceptance of a promise of marriage may be inferred from circumstances the same as a promise to marry.</p> <p>4. Special Findings—Restricted to Ultimate Facts.— Special findings should be restricted to ultimate facts, so held in an action for breach of promise to marry where the court was asked to submit the following interrogatories : Did the defendant promise to marry the plaintiff? which was submitted. Question No. 2 was: If you have answered “ Yes” to question 1, then when and where did he make the promise? which was not submitted. Held, it was properly refused.</p> <p>5. Special Findings—Province of the Jury.—It is unreasonable and impracticable to require juries to reduce to writing the evidence upon which they base their conclusions upon ultimate facts; as, to state time when, and place where, litigants entered into agreements.</p> <p>6. Contract of Marriage—No Time Fixed—To Marry upon Request. —If a contract of marriage is made and no definite time fixed for its consummation, in law the contract is one to be performed in a reasonable time, and if a contract is made to marry upon request, the plaintiff may make such request by an agent, as well as by herself.</p> <p>7. Contract of Marriage—What is Not an Abandonment.—Where parties to a marriage contract sever their relations as betrothed lovers for a time, and at the request of either they are resumed, no formal new Promise of marriage is necessary after such resumption.</p> <p>8. Contract op Marriage—Immoral Consideration and Other Promises.—The fact that a promise of marriage is made upon an immoral consideration is immaterial where there is evidence that other promises or obligations free from such illicit taint were made or existed, and a right of recovery can not be denied if such other promises are proven.</p>

<p>Memorandum.—Assumpsit on promissory note. In the Circuit Court of Adams County; the Hon. Oscar P. Bonney, Judge, presiding. Judgment on demurrer to a plea of the statute of limitations. Appeal by defendant.</p>

<p>1. Railroad Company—Rights of Persons Dealing with its Agents. — A passenger on a railroad train may judge of the power of its agents and servants from appearances and their position and acts.</p> <p>2. Negligence—Assurances of Safety by Employes.—The direction or invitation or an assurance of safety given by a servant of a railroad company may so qualify a passenger’s act as to relieve it of the quality of negligence.</p> <p>3. Care and Negligence—A Question of Fact for the Jury. —Whether under all the circumstances a person fails to exercise ordinary care, is a question of fact for a jury, and under the evidence in a case, if the finding of the jury is justified, it is beyond the power of the Appellate Court to disturb it.</p> <p>4. Railroad Companies—When Bound by the Acts of their Employes. —While the power and authority of a brakeman is limited by, and can only be determined from, and by the rules and regulations of the company prescribing his duties and defining his power, yet as to third persons, passengers upon a train, the power of such an employe may be determined from appearances and from his acts and from the position he assumes to occupy.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Fulton County; the Hon. Oscar P. Bonney. Judge, presiding.</p>

<p>1. Highways—Suit for Road Tax—How Brought.—A proceeding against a person for a failure to perform road labor under Sec. 102, Ch. 121, R. S., is properly brought in the name of the town.</p> <p>2. Courts—Presumptions as to Regularity of Proceedings.—Presumptions of law are in favor of the regularity of proceedings of courts.</p>

<p>Memorandum.—Bill to settle partnership. Appeal from the Circuit Court of Edgar County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>1. Officer De Facto—Not Entitled to Fees.—An officer de facto holding an office and receiving the fees and emoluments thereof is liable to account for such fees and emoluments to the officer de jure who has been excluded from the benefits of the office, and an action will lie to recover the same.</p> <p>2. Officers—Certificate of Election—Prima Facie Authority.—A certificate of election, whether rightfully or wrongfully given by the proper public authority, confers upon the person holding it the prima facie right to the office until his right is terminated by a voluntary surrender or by a judicial determination against him.</p> <p>3. Officers—Bond and Oath.—The statute requiring the oath of office and bond to be given within a certain time applies only to persons declared elected, and to whom the certificate of election has been given.</p> <p>4. Limitations—When the Statute Begins to Bun.—It is a general rule that the time limited by statutes of limitation is to be computed from the date when the person entitled is authorized first to commence a suit.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

Memorandum.—Bill by divorced wife for dower in her divorced husband’s estate. Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding.

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

<p>Memorandum.—Action for personal injuries. Error to the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding.</p>

Memorandum.—Suit on an insurance policy. In the Circuit Court of Cumberland County; the Hon. Silas Z. Landes, Judge, presiding. Declaration, pleas: (1) General issue.

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

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Coles County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Piatt County; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>Memorandum.—Error to the Circuit Court of DeWitt County; the Hon. Cyrus Epler, Judge, presiding.</p>

Memorandum.—Debt on the official bond of a county clerk. In the Circuit Court of Ford County, the Hon. Thomas F. Tipton, Judge, presiding. Declaration in debt; special breaches assigned. Stipulation: “ For the purposes of this trial, the plea of general performance shall be considered as filed in this cause by the defendants appearing and the similiter shall be considered into such plea.

<p>1. Damages—Inadequate.—At common, law new trials were not-allowed upon the ground that the damages allowed by the jury in actions for torts were insufficient; at least such was the rule in trespass vi et armis, and there is much authority that the rule applied in all actions for torts.</p> <p>3. New Trials—Inadequate Damages.—As a general rule a new trial will not be granted on the ground that the damages are too small in actions for wrongs and injuries, but we think an exception maybe drawn from the more modem judicial holdings.</p> <p>3. New Trials—Grossly Inadequate Damages—A More Modem Rule.—Where a verdict gives grossly inadequate damages to the plaintiff, a new trial may be granted the plaintiff upon the same principle that I like relief is granted to a defendant, when excessive damages are assessed by the jury.</p> <p>4. Measure of Damages—Unliquidated Damages.—Where there is no legal measure and the damages are unliquidated the estimation of damages is peculiarly within the province of the jury; so also as to the assessment of vindictive or exemplary damages; but where actual damages are shown with such definiteness as to furnish a reasonably certain measure, the court may look into the circumstances proven and grant a new trial, if the amount awarded by the verdict is manifestly inadequate.</p> <p>5. Druggists—Statute Concerning the Sale of Poisons.—Section 103 of the Criminal Code, which provides for the punishment of any druggist who shall sell and deliver corrosive sublimate or other poisonous substances or liquids, without having the word “ poison” printed upon a label attached to the vial in which the poison is contained, does not apply to cases where a druggist is induced to deliver a poisonous liquid to a person by the representations of such person that it was his, and without knowing the character of the same.</p>

<p>1. Prosecution—The Term Defined —A prosecution is defined to be the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to final judgment.</p> <p>2. Costs—Construction of the Statute.—The effect of Sec. 511, Ch. 38, R. S., entitled “ The Criminal Code,” is to impose upon a convicted defendant the duty and liability of paying all the costs and fees legally earned and taxable in the case.</p> <p>3. Costs—Fees of Foreign Witnesses.—Under Sec. 47, Ch. 53, R. S., entitled “Fees, etc.,” the fees of foreign witnesses, whether on behalf of the people or of a defendant, are properly taxable as legal costs of a prosecution.</p> <p>4. Costs in Criminal Prosecution —Effect of a Taxation.—When a defendant is convicted, the judgment is that he pay the fees appearing on the fee book, subject, of course, to his right to question the correctness of the bill by motion to retax, or by replevin of the fee bill. A judgment for the costs is incident to a judgment of conviction.</p> <p>5. Criminal Prosecution—Position of the County in Relation to the Same.—Though prosecutions, criminal in character, proceed formally in the name of the people of the State, the county in which the crime is committed is recognized and treated by the provisions of the statute as having a relation to a criminal cause, practically that of a party to it.</p> <p>6. Counties— Payment of Fees in Criminal Cases.—The duties devolving upon a party to a criminal proceeding are cast by law upon the county. Its privity to a criminal cause is such that the payment of the fees of witnesses by it under the statute, may well be regarded as a payment of such fees in advance by a party, to be recovered against the defendant, if convicted, as in civil actions.</p> <p>7. Witnesses—Fees of Non-Resident.—The legislative design was to provide every poor or indigent defendant with means wherewith to defray the expenses of non-resident witnesses who know of facts material to his defense, and to relieve defendants, though amply able to pay such witnesses, from the necessity of doing so unless proven guilty.</p> <p>8. Costs in Criminal Cases—Liability of Person Convicted, To Pay Fees of Non-Resident Witnesses.—It was not the design of the statute to relieve a defendant, when proven guilty of the charge against him, of the burden of paying witnesses’ fees, or to make any distinction in that respect between the fees of resident or non-resident witnesses.</p>

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

<p>Memorandum.—Action of covenant in Circuit Court of Vermilion County; the Hon. Edward P. Vail, Judge, presiding. Trial by the court; finding for plaintiff $1,000; judgment; appeal by defendant.</p>

<p>Memorandum.—Indictment for changing ballot. Error to the Circuit Court of Macon County; the Hon. Edward P. Vail, judge, presiding.</p>

<p>1. Exemptions—Requisites of a Schedule.—The schedule under Ch. 52, R. S., entitled “Exemptions,” should list separately each article of a distinct kind, or of a distinct quality, grade, or description of the same kind, in order to enable appraisers the more readily to fix the value of each article contained in it.</p> <p>2. Appraisement—Insufficiency of Waiver.—When appraisers have been appointed to make an appraisement under Ch. 52, R. S., entitled “Exemptions,” and the same is made by them and accepted by the debtor, he waives all imperfections in it and can not be heard to object to it afterward.</p> <p>3. Exemptions—Schedule—Appraisement and Selection.—The officer having the execution can not make a selection for the debtor, nor can he change one made by the debtor.</p> <p>4. Exemptions—Imperfect Appraisement—Debtor Selection.—If a schedule and appraisement, as made by the appraisers, does not enable the debtor to select specific articles at appraised values, he should seek to have them corrected.</p> <p>5. Exemptions—Mortgaged Property.—A. defendant is the absolute owner of property as against the execution creditor and the officer having the execution, and as against mortgagees also, subject only to the lien of their mortgages, which they were not bound and might never be disposed to enforce. The debtor’s interest, notwithstanding the mortgage, is subject to execution.</p> <p>6. Exemptions—Construction of the Statute.—All the proceedings under the statute of exemptions show that it contemplates only specific, tangible articles of property, which can be taken, delivered, returned, replevied, etc. An equity of redemption, a mere lien or equitable claim, without possession, is susceptible of neither.</p> <p>7. Exemptions—Duty of Appraisers. — Appraisers are authorized and required only to fix the fair value of what they can see and at what they can ascertain by inspection and handling. They have no authority to consider and adjust equities between an execution debtor and third persons, or to ascertain whether a mortgage was given for money borrowed, for future advances, or for indemnity to the mortgagee against a liability which might or might not arise.</p> <p>8. Exemptions—Debtor's Right to Property Defined.—If the execution debtor takes it as exempt, he must take it at the value fixed upon it by the appraisers, unaffected by other liens upon it. If he has given a mortgage upon it, the presumption is that he has had and enjoyed so much of its value, and there is no hardship in denying to him the claim to have it again. In this proceeding he is not authorized to set up a claim for the mortgagee that is not prejudiced by the execution.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Thomas P. Tipton, Judge, presiding.</p>

<p>1. Sales—When the Title Passes—Delivery.—To constitute a sale of a part of a lot of corn in the crib, so as to pass the title to the vendee of the portion sold, there must be a separation and identification of the part from the common mass.</p> <p>2. Sales—Delivery a Question for the Jury.—The question as to whether there has been a delivery of goods sold, is one of fact for the jury.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Ford County; the Hon. Alfred Sample, Judge, presiding.</p>

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

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of McDonough County; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>1. Nuisances— When Notice to Remove is Necessary.—A person who comes into possession as grantee of land upon which there is a nuisance is not liable for merely permitting it to remain, until he has been notified or requested to remove it.</p> <p>3. Lis Pendens — Who Are Purchasers.—Where litigation relates merely to a moneyed indebtedness or the contention is over a mere demand for money, as in an action of trespass quare clausum fregit, there is no such Us pendens as will charge the property with the final judgment or decree in the case.</p> <p>3. Propositions of Law.—Must be Submitted in Apt Time.—Propositions of law submitted to the court for the first time upon the hearing of the motion for a new trial are properly rejected as not presented in apt time.</p> <p>4. Trials—Province of the Court When Acting in the Place of a Jury.—It is the province of the trial court acting in the place of a jury to determine the weight and credit which ought to he given to the testimony of the several witnesses and give credit accordingly, and the Appellate Court will not disturb or set aside the finding, unless it is apparent the court misunderstood or disregarded material evidence introduced on the trial.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding.</p>

<p>Memorandum.—Action for personal injuries. Error to the Alton City Court; the Hon. James E. Dunnegan, Judge, presiding.</p>

Memorandum.—Bill for an injunction to restrain the cutting down of shade trees. Appeal from the Circuit Court of Wabash County; the Hon. Silas Z. Landes, Judge, presiding.

<p>Memorandum.—Bill for injunction. Appeal from the Circuit Court of Wabash County; the Hon. Silas Z. Landes, Judge, presiding.</p>

<p>Memorandum.—In chancery. Appeal from the Circuit Court of St. Clair County; the Hon B. H. Canby, Judge, presiding.</p>

Memorandum.—Proceedings under the act relating to the assignment for the. benefit of creditors. Appeal from the County Court of Richland County; the Hon. T. A. Fritchey, Judge, presiding.

Memorandum.—Assumpsit for goods sold, etc. Appeal from Justice’s Court to County Court of Jackson County; the Hon. W. W. Barr, Judge, presiding. Trial by jury; verdict and judgment for defendant; plaintiffs appeal.

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Clinton County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>1. Highways—Injunction To Prevent Laying Out.—As a general rule, a bill for an injunction will not lie to restrain the i laying out of a highway unless the proceedings are void for the want of jurisdiction on the part of the commissioners or supervisors.</p> <p>3. Highways— When Equity Will Restrain the Opening.—Where an order of the commissioners establishing a highway is void for want of jurisdiction, a court of equity may entertain a bill to enjoin the opening of the road.</p> <p>3. Highways—Requisites of a Petition To Lay Out.—A. petition to lay out a highway stated that the petitioners resided within “ t-h-o-w ” miles of the road in question. It was held that in view of the fact that the statute says two, and that these letters are intended to designate the number of miles, and represent two better than any other number from one to infinity, the petition was sufficient to confer jurisdiction upon the commissioners.</p> <p>4. Highways—Requisites of the Petition.—Where a petition for a road stated that “the road begins on the west line of section three, between sections three and four, and runs on said line to the southwest comer of section three, and thence east on the south line of that section to the southeast comer thereof, where it intersects a road running north and south between sections two and three in said town, county and State, the petition being addressed to the commissioners of highways of the town of Lawrence, in the county of Lawrence, in the State of Illinois, it was held that these allegations show that the highway in question is wholly within the town of Lawrence.</p> <p>5. Highways—Requisites of a Petition for an Appeal to the Supervisors.—Where a petition filed with a justice of the peace for an appeal from the decision of the highway commissioners, alleged that the person taking the appeal was directly interested in the decision, it was held that the term “ interested in the decision,” meant that he was the owner of land adjoining the road to be laid out or vacated, and is sufficient unless other allegations negative this meaning.</p> <p>6. Highways—Amendment of Petition for an Appeal to the Supervisors.—A petition for an appeal from an order of the commissioners of highways to the supervisors was amended so as to show that the petitioners who stated they were interested in the decision were the owners of land adjoining the road sought to be laid out. It was held that there is no objection to the allowance of such an amendment.</p> <p>7. Highways—Appeals to Supervisors—Who Is a Land Owner.—A testator devised his land to his wife with power to sell, etc.; at her death it was to go to his sons, provided they should pay all debts owing by him at his death, and by Ms wife at her death, and the funeral expenses of both. It was held, that the sons were given such an ownership of the land devised as to clothe them with the right to appeal under the road and bridge act.</p> <p>8. Wills—Construction of—Devisees Creating Life Estates with Power of Sale.—A power of sale added to a life estate does not raise the estate to a fee, but a will may create a life estate with power to sell and convey the fee, and at the same time devise a remainder to take effect on the determination of the life estate.</p>

<p>1. Exemptions—Exempt Property Converted into Debt Subject to Garnishment.—Where a judgment debtor makes and delivers a schedule of property he claims as exempt, and afterward converts a part of the property into a debt, he can not claim such debt as exempt from a subsequent execution issued under the same judgment, even though he then had less property, including said debt, than is allowed by the statute, and such debt is subject to garnishment.</p> <p>2. Exemption Laws—Rule of Construction.—Exemption laws are purely statutory, and the benefit thereof can be availed of by a certain defined class of debtors only, and upon certain conditions.</p> <p>3. Exemptions—Money Due the Debtor.—The effect of the provision in section 2 of the act approved June 10, 1887 (Laws 1887, 142), is to forbid the judgment debtor from selecting as property exempt from attachment, execution, distraint or garnishment, money due him, whatever may have been the consideration for the debt, or the circumstances out of which it arose.</p> <p>4. Exemptions—Fifty Dollars Exempt, Due for Wages.—The proviso of Sec. 2 of the act of June 10, 1887 (Law 1887, 142), providing that no exemption shall be allowed to the debtor from any money due him from any person whatever, does not abrogate the right of the debtor, if the head of the family, as provided in Sec. 4 of the Garnishment Act, to hold as exempt $50 due him for wages, or defeat his right to hold as exempt for one year, the proceeds of the sale of a homestead, and insurance money due him for loss on building exempted as a homestead, as provided for in Secs. 6 and 7 of the Homestead Exemption Act,</p>

Memorandum.—Replevin. In the Circuit Court of Pope County; the Hon. Oliver A. Harker, Judge, presiding. Declaration in replevin. Pleas (1) Non cepit. (2) Non detinet. (3) Property in defendant. (4) Property in stranger. (5) Plea of justification by sheriff under ft. fa. Trial by jury; verdict and judgment for plaintiff; defendant appeals.

Memorandum.—Certiorari to bring up a case from a justice’s court. Appeal from an order of the Circuit Court of Randolph County, quashing the writ; the Hon. Benjamin R. Burroughs, Judge, presiding.

<p>Memorandum.—Bastardy proceeding. Appeal from the County Court of Clinton County; the Hon. Jesse Jones, Judge, presiding.</p>

Memorandum.—Action for personal injuries. In the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Declaration in case; plea not guilty; trial by jury; verdict for plaintiff, §3,000, and judgment; appeal by defendant.

<p>1. Certiorari—Motion to Quash.—A general motion to quash a writ of certiorari is in the nature of a general demurrer, and upon such motion no question of imperfection in the form of the petition arises.</p> <p>2. Certiorari—Sufficiency of Petition.—A petition for a certiorari to review proceedings for the opening of a public highway, which alleges that the highway in question is on the line between the town of Bald Hill, in Jefferson county, and district 41, in Perry county; that the petition praying for its establishment was not presented to or acted upon by the joint board of the highway commissioners of the districts; that the joint board did not cause notices to be posted in each of the districts for ten days prior to the proposed meeting, to hear reasons for and against the laying out of the road; that the joint board did not have the proposed road surveyed or platted; that the highway commissioners of the town of Bald Hill pretended to act on the petition, and caused notices to be posted in said town, and the highway commissioners of district 41 pretended to meet and act with the highway commissioners of the said town, but that no copy of the petition was ever posted in Perry county; no notice of the meeting, to hear reasons for or against the laying out of the road, was ever posted in district 41; that the prayer of the petition for the laying out of the road was granted; that the damages of M. S. were assessed by a jury; that she took an appeal from the verdict to three supervisors of Jefferson county; that the supervisors, though summoned, did not act; that two supervisors of Jefferson county and a road supervisor of district 41 were then summoned to hear the appeal; that they refused to take jurisdiction, and pretended to dismiss the “ cause ” (evidently meaning the appeal); and that the commissioners of the town of Bald Hill are about to open the road, insisting that the same has been lawfully laid out; that the petitioners for the writ of certiorari, one of whom was a minor, were owners of lands taken for the road in question, and that their damages were not agreed upon, assessed or paid, and that no steps were taken to secure the relinquishment; of the said minor’s damages, is sufficient to require a return to the writ.</p> <p>3. Highways—Opening on a Town or County Line.—Where a public highway is to be laid out on a town or county line in counties under township organization, the petition must be presented to the commissioners of each town, and thereupon it becomes the duty of the commissioner of the two towns to meet and act as one body, in the same time and manner as in other cases, in considering the petition, viewing the premises, and making all orders in reference to such proposed road. A majority of all such commissioners must concur in all such orders. Such is also the law in counties not under township organization, with the additional requirement that a copy of the petition shall be posted in each district interested.</p> <p>4. Highways—Posting Petition—Jurisdiction.—Where, in opening a highway on a county line, the petition and notice required by law are not posted in one of the counties, no jurisdiction is acquired and all subsequent proceedings are void.</p> <p>5. Highways—Proceedings to Establish, etc., Without Jurisdiction. —Where the commissioners by reason of irregularities in their proceedings acquire no jurisdiction of the subject-matter, the fact that the parties interested had the right to appeal, and did not exercise that power, will not prevent them from having their remedy by a writ of certiorari.</p> <p>6. Highways—Posting Notices in Proceedings to Lay Out.—In proceedings to lay out a highway, the posting of notices of the time and place when and where the commissioners will meet to hear reasons for and against the laying out of the road, relates to the jurisdiction of the subject-matter and of the person. The failure to post the notices can not be cured in any manner whatever.</p> <p>7. Highways—Commissioners Must Have Jurisdiction of the Subject-Matter.—In proceedings to lay out a public highway, where the notices of the time and place of the meeting have not been posted as required by law, the commissioners have no power to proceed under any circumstances, even if every inhabitant of the town or district were present to act with reference to the subject-matter.</p> <p>8. Highways—Appeal from, Assessment of Damages.—Where an appeal is taken from the verdict of the jury in assessing damages, such an appeal will suspend only so much of the order of the commissioners as affects the party appealing. It will not suspend the order of the commissioners laying out the road.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.</p>

<p>1. Negligence—Liability for Acts of Servants.—Appellee, a conductor in the employ of the Illinois Central Railroad Company, was injured while obeying the order of his superior to get out of the way of a passenger train then overdue, by a collision with a train in charge of a crew of the appellant who were violating an explicit order of the same superior, directing them to move back out of the way and make room for appellee’s train. It was held that he was entitled to recover.</p> <p>3. Practice in Appellate Court—Abstracting Instructions.—A single isolated instruction printed in the abstract is not in compliance with the practice in the Appellate Courts.</p> <p>3. Practice in Appellate Court—Instructions to be Considered as a Series.—Instructions must be considered as a series. The Appellate Court must know what instructions were given, as well as refused, before it can be intelligently determined whether or not the lower court has committed error in refusing an instruction.</p>

<p>Memorandum.—Indictment for unlawfully selling intoxicating liquors. Appeal from the Circuit Court of Clay County; the Hon. Carroll C. Boggs, Judge, presiding.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderhan, Judge, presiding.</p>

<p>1. Evidence—What is Not Negative Proof.—Upon the issue as to whether the bell of a locomotive engine was rung at a highway crossing as required by law, the evidence of witnesses whose opportunity to see and know was such as to entitle their testimony to great weight, was,</p> <p>that the bell was not rung, so far as they heard. It was held not to be negative testimony in the sense that it was the testimony of witnesses who did not know whether or not a bell was rung.</p> <p>2. Railroads - Binging the Bell at Highway Crossings, etc.— The giving of four or five blasts of the locomotive whistle, or ringing of the bell for less than eighty rods before the reaching of the public crossing, is not a compliance with the law. The law requires that the whistle on the locomotive must be sounded eighty rods from the crossing and kept continuously sounding until the engine reaches the crossing, or the bell on the engine be rung eighty rods before reaching the crossing and kept continuously ringing until the engine reaches the crossing.</p> <p>3. Instructions—Assessment of Damages.—An instruction which tells the jury to assess the plaintiff’s damages at any sum they believe him entitled to from the evidence, is properly given.</p> <p>4. Instructions—Duty and Liability in Operating Trains.—An instruction which informs the jury, if they believe from the evidence that plaintiff was free from negligence, and the defendant’s servants were guilty of negligence in running a train over a crossing at a greater rate of speed than was usual or reasonably safe to persons about to cross the track, and that by reason of such neglect plaintiff was injured and damaged, he is entitled to recover, states the law correctly as to the duty and liability of appellant in operating its train, and submits the question of negligence to the jury, as a question of fact to be determined by them from the evidence.</p> <p>5. Railroad Companies—Speed of Trains.—While it is true the law does not limit the rate of speed at which railroad trains may be run in approaching highway crossings, outside of incorporated cities and towns, to a certain number of miles per hour, yet there is a duty imposed upon railroad companies to operate their trains with due regard to the safety of those traveling along the highway over such crossings. They are not to recklessly or carelessly run their trains at such a high rate of speed when approaching a highway, as to endanger the safety of travelers. They are to use reasonable care in running, managing and controlling their trains, with respect to speed, to avoid collisions at such crossings.</p> <p>6. Negligence—-Degrees of Care and Diligence.—The degree of diligence required of such corporations in performing their duty, depends upon the circumstances of each case, and must be a degree of diligence amounting to reasonable care.</p> <p>7. Negligence— What Will Support a Finding.—The fact that a railroad train in approaching a highway crossing was running at a speed of thirty miles an hour, in violation of rules known to those in charge and control of the train limiting the maximum rate of speed to twenty miles an hour, that the crossing was much traveled by the public, also known to those in charge and control of the train, that at the time of the accident there was much dust upon the highway obscuring the view, and that there were obstructions preventing a person approaching the crossing on the highway from seeing far up the railroad track, will support a finding that defendant was guilty of negligence in running its train at a high rate of speed.</p>

<p>1. Notice—In Chancery Proceedings — Cured by Appearance.— Where a written notice informs the party to be affected thereby of the time and term of court when and where the party serving it will present her petition, and what steps were proposed to be taken, the appearance of counsel on behalf of the party to be affected at the hearing, without objection, will justify the court in finding the notice had been received by him, and he was regularly in court in response to it.</p> <p>2. Evidence—Admission Without Objection.—Where a sworn petition was introduced and read in evidence on behalf of defendant without objection thereto, or exception by counsel for plaintiff in error, it is too late to make objection in the Appellate Court.</p> <p>3. Chancery Practice—Hearing Upon Bill and Answer.—Where a party to a chancery proceeding consents to a hearing upon the bill and answer, without replication, he admits all that is stated in the answer, to be true.</p>

<p>1. Intoxicating Liquors—Liability of Partners.—Where two or more persons are partners in the business of selling intoxicating liquors, each of them is responsible for all the sales made in the prosecution of their joint business.</p> <p>3. Intoxicating Liquors—Notice Not to Sell.—No notice is necessary to prevent sales of intoxicating liquors to an habitual drunkard. The law prohibits such sales and gives all the notice necessary.</p> <p>3. Intoxicating Liquors—Sales to Habitual Drunkard.—The fact that a person may have been an habitual drunkard for years before the time sued for, is not a bar to the action to recover damages for sales to him. In such cases, the victim has the right to reform.</p> <p>4. Intoxicating Liquors—Theory of the Prohibitory Law.—The law prohibits the sales of intoxicating liquor to habitual drunkards, upon the theory that if they can not obtain liquor they can not. become intoxicated, and that, in the course of time, they may recover the normal condition of body <>nd mind to such an extent as to be able to resist the temptation.</p> <p>5. Intoxicating Liquors—Extent of Joint Liability. —It is not necessary, in order to render persons jointly liable, to show that their sales must have begun at the same time and must have kept pace together to the end of the period sued for.</p> <p>6. Intoxicating Liquors—Character of the Joint Liability.—If the sales of intoxicating liquors began a few weeks, or even a few months before sales by others, yet, if the sales were continued contemporaneously for a period of time, all are responsible for the damages resulting, within reasonable limits.</p> <p>7. Intoxicating Liquors—What Must Appear to Fix the Liability, —Before a person can be held liable, it must appear that the liquor furnished by him was the efficient and proximate cause, either wholly or in part, of the intoxication complained of.</p> <p>8. Intoxicating Liquors—The Risk Involved in Selling.—The risk involved in selling intoxicating liquors, is known to persons engaged in such traffic, and is therefore voluntarily assumed when they engage in the business.</p> <p>9. Intoxicating Liquors—Joint Liability in Suits for Civil Damages. —In suits for damages arising from the sales of intoxicating liquors, it is not important that the several defendants have contributed in the same proportion to the injuries complained of. They stand upon the like footing as persons who are engaged in a joint tort, each being subject to liability for the whole damage.</p>

<p>Memorandum.—Chancery. Foreclosure proceedings. Error to the Circuit Court of Massac County; the Hon. Alonzo K. Vickers, Judge, presiding.</p>

<p>Memorandum.—Bastardy proceedings. Appeal from the County Court of Richland County; the Hon. T. A. Fritchey, Judge, presiding.</p>

<p>1. Administrator of Estates—Duty of Making Inventories.—An administrator or executor is not the. sole judge of the performance of his duty in making an inventory under See. 51, Ch. 3, R. S. Necessarily, the ultimate determination must rest in court, otherwise if the representative refused to inventory any property, the court would be powerless to administer on the estate.</p> <p>2. Personal Representatives—Suits on Bonds Not an Exclusive Remedy.—While the law affords a remedy upon the bond of an administrator, it is not exclusive. Such -remedy exists as to any failure to perform an official duty, as for a failure to collect what is due the estate and pay the same out on the order of the court. The court is not powerless to require the representative to perform his duties, because damages for a failure could be recovered on his bond.</p> <p>3. Personal Representatives—Claiming Property as his Own.—An administrator, if he claims as his own property ordered to be inventoried, can note the fact in explanation of his action on the inventory, and this will not bar him of a hearing on the question of ownership in a regular trial at law. An order to inventory property is only interlocutory and not an adjudication of the right of property.</p> <p>4. Administration of Estates—Power of the Court to Order Property Inventoried.—Ordering the administrator to inventory property of the deceased, is a summary proceeding on the part of the court in the nature of a preliminary investigation to determine probabilities and not ultimate rights.</p> <p>5. Administration of" Estates—Effect of the Order to Inventory Property Claimed by the Administrator.—The effect and purpose of such preliminary order is to bring the matter of the disputed property within the jurisdiction of the court, so that an adjudication in the interest of the estate may be had on such property.</p> <p>6. Administration of Estates—Claims by Administrators.—Where an administrator has a demand against his testator, or intestate’s estate, the court in such case will appoint some discreet person to appear and defend the estate, at which hearing a trial is to be had according to the course of the common law, with right of appeal, etc.</p> <p>7. Administration of Estates.—Sec. 8, Ch. 3, R. S., has no application to a case where the administrator is not ignorant of facts necessary to enable him to list property in dispute, or to identify or locate it. Not being concealed, a discovery is not required.</p>

<p>1. Judgment in Criminal Cases—Not Conclusive in Civil Proceedings.—A judgment in a criminal case, though admissible to establish the fact of the rendition of the judgment, can not be given in evidence in a civil action to establish the facts on which it was rendered. But in such case a judgment rendered on a plea of guilty may be admitted in evidence as a solemn admission to be weighed by the jury in connection with all the other evidence in the case.</p> <p>2. Instructions—When Not Misleading.—An instruction which tells the jury to find the defendant not guilty, unless the plaintiff had proved every material' allegation of the declaration by a preponderance of the evidence, is generally understood as meaning no more than that the burden of proof is on the plaintiff in the first instance; and when taken in connection with other instructions which show what the plaintiff must prove in order to recover, can not be regarded as misleading in any proper sense of the word.</p>

<p>1. Negligence—Right of a Person to Presume Places, eta., to he Safe.—A person knowing a sidewalk to be dangerous, has no right to presume it to be safe, and act upon that presumption.</p> <p>2. Instructions—Assuming Facts.—An instruction which assumes the existence of a fact in dispute, invades the province of the jury.</p> <p>3. Sidewalks—When Not Dangerous Per Se.—Constructing a sidewalk elevated above the surface thirty inches, and without guard rails, is not negligence per se, nor' conclusive evidence that such sidewalk where it is so constructed is a place of danger.</p>

<p>1. Negligence—A Question of Fact for the Jury.—It is a question of fact for the jury to determine whether the negligence charged in a declaration for personal injuries is proven,-by the evidence.</p>

Memorandum. —Action for damages. Death from negligent act. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Declaration in case, plea not guilty; trial by jury; verdict for $3,500 and judgment for plaintiff; defendant appeals, etc.

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding.</p>

<p>1. Negligence—Speed of Trains Regulated by Ordinance.—It is negligence in a railroad company to run its trains at a greater rate of speed within the limits of a city, than is allowed by the ordinances.</p> <p>2. Jury—Judges of the Weight to be Given to Testimony.—It is the province of the jury to judge what weight and credit should be given to the testimony of the witnesses, and find accordingly, and unless such finding is so contrary to the evidence, as to create the belief in the mind of the court that the jury misapprehended or disregarded the evidence, the verdict will not be disturbed.</p> <p>3. Evidence—Speed of Trains.—Any person may testify as to speed of train, whether he is a railroad man or not, and state his opinion, based upon his observation of the train while in motion. The weight to be given to such testimony is for the jury to determine.</p> <p>4. Negligence—Speed of Trains—Cause of Injury.—Where a railroad company, by itself or agents, runs its trains at a greater rate of speed in or through the incorporated limits of a city than is permitted by the ordinances of such city, such company is liable for all damages done the person or property by such train, and the same is presumed to have been done by the negligence of such company or their agents. It is not necessary tó prove that the injury was the direct result of such unlawful rate of speed.</p>

<p>1. Practice—Waiver of Replication.—Where no replication is filed and both parties appear and go to trial without objection, the same as if the replication were in, such omission can not be urged as sufficient cause to require a reversal of the judgment.</p> <p>2. Parties—Suit upon an Appeal Bond.—Where a judgment appealed from is assigned after its affirmance, it is proper to bring a suit upon the appeal bond, in the name of the obligee, for the use of the assignee.</p> <p>3. -Set-off.—Where a final settlement has been made of all accounts between parties and the amount found due to one party, which the other agrees to pay, and suit is brought and judgment recovered for the amount, an appeal having been taken, the party taking the appeal can not, in an action afterward brought upon the appeal bond, insist on setting off his original account, submitted in the settlement, to a recovery on the appeal bond.</p>

<p>1. Negligence— Who Is Responsible.—Appellee, a servant in the employ of appellant, acting under the orders of its foreman, was engaged in unloading a barge loaded with stone. In the deck of the barge, and near him, was a hole from a foot to a foot and a half square, which was unprotected and exposed. Appellee, with his back toward the hole, had lifted a rock preparatory to throwing it overboard, when he stepped into the hole and fell with the rock upon his bowels. Appellant contended it was not responsible, because the barge was owned by a quarry company, and was being used by that company for the purpose of delivering its rock. But appellee being the servant of appellant and not of the quarry company, and receiving his injuries while acting for appellant and under its orders in unloading the barge, appellant was held liable.</p> <p>2. Negligence—Which Party Guilty of, etc., a Question for the Jury.—Upon the case stated, the jury were justified in finding from the evidence that appellant was guilty'of negligence causing the injury, and that appellee was, at the time, in the exercise of ordinary care.</p> <p>3. Employes—Bight To Assume the Seasonably Safe Condition of the Place They Are Ordered To Work in.—Where an employe is ordered to work in a place, and where he has no time to examine it, he has a right to assume that it is in a reasonably safe condition.</p> <p>4. Master and Servant—Construction of the Terms, “ Bound to Furnish a Reasonably Safe Place” and “ Bound to Exercise Reasonable Gave” to Do So, etc.—The expressions, “bound to furnish a reasonably safe place,” and “ bound to exercise reasonable care to furnish a safe place,” mean practically the same tiling, and neither of them can be held to require an absolutely safe place to be furnished.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Clinton County; the Hon. Alonzo S. Wilderman, Judge, presiding.</p>

Memorandum.—Suit for insurance. In the Circuit Court of Johnson County; the Hon. Oliver A. Harker, Judge, presiding. Declaration on the policy; pleas, general issue and limitations contained in policy; replication (see opinion); trial by jury; verdict and judgment for plaintiff; defendant appeals.

<p>Memorandum.—Assumpsit. Account stated. Appeal from the Circuit Court of Wayne County; the Hon. Carroll C. Boggs, Judge, presiding.</p>

Memorandum.—Action for criminal conversation. Appeal from the Circuit Court of Johnson County; the Hon. Joseph P. Robarts, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict and judgment for plaintiff; defendant appeals.

<p>1. Trespass to Real Estate—Remedy by Injunction—Where it appeared that a complainant, who was the real owner in fee of the land described in his bill, had fenced, inclosed, cleared up and cultivated a part of the land, and was in the lawful and exclusive possession, and there was not, nor ever had been a public highway over the same, that while he was in such possession, and soon after the land was so inclosed, the defendant, under the pretense that there was a public highway over said land, and that complainant had obstructed the same by fencing, 11 with force and violence pulled out the gate posts, and has repeatedly since that time, cut the wires of said fence, tom said gate posts, and passed over said land, and at a time when defendant was cutting down said fence and complainant remonstrated, defendant threatened to kill him, if he did not keep out of his way, and threatened to cut down said fence every time it should be repaired, ” and that if said defendant is allowed to continue his trespasses, complainant will not be able to cultivate said land, and endless litigation will result, it was held sufficient to entitle the complainant to an injunction.</p> <p>2. Injunction—To Restrain Trespass—Irreparable Injury.—Irreparable injury, authorizing the interference of a court of chancery by injunction, need not always be such injury as to be beyond the possibility of repair, or beyond possible compensation in damages, not necessarily great injury or great damage, but is that species of injury, great or small, which ought not to be submitted to on the one hand, or inflicted on the other, and is of constant and frequent recurrence, so thatno fair or reasonable redress can be had therefor in a court of law.</p> <p>3. Demurrer—Its Effect in Chancery.—The office of a demurrer to a bill in chancery, is to deny in form and substance complainant’s right to have his case considered in a court of equity, and to admit that all the allegations of the bill properly pleaded are true.</p> <p>4. Injunction—Trespasses—Legal Rights Established.—When a bill is filed to restrain continuing trespasses to real estate, the defendant can not insist that the complainant must first establish his right at law, after a demurrer has been overruled to the bill and a decree rendered thereon, because the demurrer admits the truth of the allegations of the bill, and establishes the complainant’s rights as completely as could be done in a court of law.</p>

<p>Memorandum.—Suit for a violation of village ordinance. Error to the Circuit Court of Jackson County; the Hon. Alonzo K. Vickers, Judge, presiding.</p>

Memorandum.— Bastardy proceedings. The complaint began with the following recital: “ The complaint of Viola Gray, of Bridgeport, in the said county, an unmarried woman, made before H. W. Bunn, one of the justices of the peace in and for said county, under oath, who says that,” etc. Appeal from the County Court of Lawrence County; the Hon. F. C. Meserye, Judge, presiding.

<p>1. Jury—Province to Determine Questions of Fact.—It is the province of a jury to determine questions of fact, and when there is evidence justifying the verdict it will not be disturbed.</p>

<p>1. Special Interrogatories—Evidentiary Facts.—It is not error to refuse to submit a special interrogatory which calls for a finding of evidentiary facts.</p> <p>3. Special Interrogatobies— What is an Evidentiary Fad.—Where a defendant asked for the submission of the following special interrogatory—‘ ‘ Did the deceased use the slightest diligence to protect himself from injury when he started and proceeded to cross said railroad, and if so, in what did such diligence consist ? ”—it was held properly refused, as the clause “ and if so, in what did such diligence consist,” called for the evidence on which the jury based the special finding asked for.</p> <p>3. Negligence—Use of Care and Diligence.—The general rule is that in actions for personal injuries the plaintiff must prove that he was using due care at the time he was injured. It is a question of fact for the jury to determine from the evidence, whether or not the deceased was in the exercise of due care for his personal safety when he was struck by the defendant’s engine. The proper determination of this question depends largely upon the circumstances surrounding the person injured at the time of or immediately preceding the injury.</p> <p>4. Negligence—Measure of Care, etc.—What might be required of a person in one case, to establish the fact that he was using due care for his personal safety when injured, might not be required in another case under different circumstances.</p>

<p>1. Negligence—What is.—Where employes of a city were engaged in building a crossing over a ditch, quit work in the evening leaving the crossing unfinished, and without placing any guard, light or other device to warn or protect pedestrians, it was held, that the city was guilty of negligence.</p> <p>2. Cities and Villages—Not Insurers Against Accidents.—A. city is not an insurer against accidents; it only has to exercise reasonable care to make and keep its sidewalks and crossings reasonably safe.</p> <p>3. Comparative Negligence—The Rule Stated.—Where there is slight negligence on the part of the person injured, contributing to the injury, there must be gross negligence on the part of the defendant in comparison therewith, in order to justify a recovery.</p> <p>4. Error—Will Not Always Reverse.—It is not every error that will reverse, where substantial justice has been done.</p>

<p>Memorandum.—Assumpsit. Error to the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.</p>

<p>1. Fellow-Servants—Who Are.—Two crews of men in the employ of a railroad company, daily co-operating and consociating together in , the business of switching in the same yard, one delivering cars, and the other receiving the same cars, are fellow-servants.</p>

<p>Memorandum.—Mechanic’s lien. Appeal from the Circuit Court of Marion County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

Memorandum.—Action for personal injuries. In the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict and judgment for plaintiff; defendant appeals.

<p>1. Negligence—Notice to Municipal Authorities.—In an action for injuries received by reason of a defective sidewalk, the defect (a loose board) had existed for some time and was known to one member of the village board. It appeared that upon discovering the defect the member of the board nailed the board down, but the stringers were insufficient to hold it. It was held that the jury were justified in finding that the walk at the place of the accident was out of repair, and that such fact was known to the authorities.</p>

<p>1. Carriers of Passengers—When a Person is Not a Passenger.— A person does not become a passenger by inducing the conductor in disregard of his duty and in fraud of the rights of the company to permit him to ride without the payment of fare.</p> <p>2. Carriers of Passengers— When a Person is Not a Passenger— Application of the Rule.—A person who furnished liquor to the conductor of a train, which he knew did not carry passengers, to secure his consent to ride without the payment of fare, does not become a passenger for hire within the meaning of the law applicable to carriers of passengers.</p> <p>3. Question of Fact—Forcing a Person Off the Train.—The question as to whether the conductor of a railroad train compelled a person who was riding upon it to jump off is one of fact for a jury to determine.</p> <p>4 Contributory Negligence— What is.—Where the conductor of a freight train told a person riding thereon that it was safe in his opinion to jump off while the train was in motion, if not otherwise induced to do so, such an act would be contributory negligence and would bar a recovery for damages sustained in so doing.</p>

Memorandum.—Action for damages caused by an overflow of water. In the Circuit Court of Bond County; the Hon. Benjamin R. Burroughs, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant.