Volume 6 — Illinois Appellate Court Reports

<p>Appeal from the City Court of Alton; the Hon. Henry S. Barer, Judge, presiding.</p>

<p>1. Attachment — Quashing writ — Judgment.—In attachment, where the facts stated in the affidavit are traversed by the defendant, and upon issue joined thereon there is a finding for the defendant, the writ of attachment should be quashed with costs, and the cause should proceed to final judgment as though commenced by summons. It is error upon such an issue to render judgment against the plaintiff for all costs and make a final disposition of the case.</p> <p>2. Instruction as to evidence. — It is error to instruct the jury that they must he “ satisfied ” from the evidence, etc.; such instruction places the standard of proof higher than the law demands in controversies of this character.</p>

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

<p>1. Fixtures. — An engine and machinery used for manufacturing purposes, and. described in a deed of trust as personal property, but so fixed that they cannot be removed without tearing down the walls of the building where they are placed, are fixtures, and pass as a part of the realty under the trust deed. The mere description of them in the deed as personal property, does not make them so, nor estop the party from asserting their true character as fixtures.</p> <p>2. Taking possession under trust deed. — In order for the trustee to take possession of such property under the deed of trust, it is not necessary that he should remove the property to the injury of the premises. The placing by him of an agent in charge of the property and acting under his orders, is sufficient, even though such agent was the former superintendent of the company.</p> <p>3. Action at law. — Although defendants may have had an action at law, by way of trial of the right of property, yet, if the action of the sheriff had proceeded to the point threatened; — tearing down the wall and removing the property — it is manifest the remedy at law would have been inadequate, and in such a case a court of equity has jurisdiction by injunction to prevent a threatened wrong.</p>

<p>Error to the Circuit Court of Biehland county; the Hon-James C. Allen, Judge, presiding.</p>

<p>Statement. — This case is similar to the preceding, and is reversed for the same reasons.</p>

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

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

<p>Appeal from the Circuit Court of Ei chi and county; the Hon. William C. Jones, Judge, presiding.</p>

<p>Appeal from the Circuit Court of White county; the Hon. Thomas S. Casey, Judge, presiding.</p>

<p>1. Certiorari. — The common law writ of certiorari is the appropriate mode of bringing up for review the proceedings of highway commissioners in laying out roads.</p> <p>2. Laying out roads — Damages.—Since the present Constitution came into force, the statute allowing the jury to consider or disregard benefits to the owner in the matter of laying out roads, does not apply to the matter of damages for taking the land.</p> <p>8. " Right oe appeal. — A party whose land has been taken for a road has the right to be heard upon the question of damages, upon an appeal to the supervisors, and it is error to dismiss his appeal, and the mode of appeal is not changed by the fact that the proposed road is upon a county line.</p>

<p>1; Executor de son tort. — Where one not the executor or administrator of a deceased person, assumes to act as such, or appropriates the goods to his own use, he renders himself liable as executor de son tort. The fact that he was a legatee under the will can make no difference.</p> <p>• 2. Heir may be sued for debt of ancestor. — There having been no administration on the estate within a year after probate of the will, the heir is liable for the debts of his ancestor, as executor de son tort to the extent of the personal property received, and also in respect of lands descended to him where there are no personal assets. The personal estate of the deceased is the primary fund from which to pay the debts against the estate.</p>

<p>1. Municipalities — Poweb to compel payment op judgment. — Taxes are authorized to provide for the necessary expenses of government, and the funds thus raised are to be applied first to the necessary current expenses of the city, and though these expenses may swallow up all that may be thus raised, courts are powerless to add to the burden of taxation beyond the limits assigned by the charter of the corporation or by law. The fact that the city may incur liabilities, which may ripen into judgments, beyond its present ability to pay, can make no difference.</p> <p>2. Cannot compel tax beyond constitutional limit. — So where it appears that the constitutional or charter limit of taxation has been reached, and that the funds thus derived will all be used in meeting the current expenses of the city, a mandamus to compel the levy of a tax to pay a judgment against the city, will be refused.</p>

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

<p>Peactice — Setting aside default. — A motion to set aside a default is addressed to the discretion of the court, and will not be reviewed by an appellate court unless it appear that such discretion has been abused; but where it appears that defendant's counsel were busy in preparing an answer at the time of default taken, but could not complete it by reason of the absence of one of the principal defendants, who was sick, and the answer discloses a meritorious defense, the motion to set aside the default should have been granted.</p>

<p>Implied contract. — A person may accept the services of another without incurring any implied liability to pay for the same, because at the outset he may know that the service is rendered because of an employment by some other person, with which he has nothing to do, and but for suchknowledge, the services would not have been received. The law raises the implication to pay when there is no express employment by another, and where there is evidence of such express employment an instruction upon the implied liability to pay, which does not include the other element of express employment, is erroneous,</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Eeboe to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Homestead — How set out. — Where the property occupied as a homestead is worth more than the $1,000 allowed by statute, arid the homestead has not been released, the grantee, or mortgagee in case of foreclosure, can enforce his rights against the surplus. The remedy in such cases is by bill in equity, either to set out the homestead or award $1,000 in lieu thereof.</p>

<p>Dbam-shops — Violation of law. — The statute prohibiting the keeping of a dram-shop without a license, is intended to reach only such places as are designated in the act. Where it appears that the defendant kept a stock of dry goods and groceries, but did not keep any liquors for sale, and in his absence his clerk, without his knowledge and against his express directions, sold two drinks of liquor on one occasion, the case is not brought within the provisions of the dram-shop act, and the defendant cannot be made liable for such sale.</p>

<p>Attachment — Affidavit—Charge of non-eesidence. — In attachment the affidavit is the foundation of the action. If that is materially defective, all subsequent proceedings are invalid. The charge that the defendant is a non-resident of the State must be made in positive and unequivocal terms. It cannot be made upon information and belief, neither can it be done by indirection; it must be so positive as to preclude any other hypothesis. An affidavit that the debtor is concealed within this State is not a sufficient compliance with the statutory ground that when a debtor conceals himself within this State so that process cannot be served upon him, the writ may issue.</p>

<p>1. Evidence — Competency of witness. — In a bill by an alleged surety against the administrator of the payee of a note, to restrain the prosecution of a suit thereon, on the ground that he signed the note as surety, and that payment of the note had been extended without his knowledge or consent, the principal in the note is a competent witness for the complainant to show the extension of payment.</p> <p>2. Parol, to show consideration. — Parol evidence is admissible to show that the consideration for the following indorsement on the note: “It is agreed by the parties to .this note that the interest shall be at the rate of ten per cent, until paid,” was an extension of the time of payment.</p>

<p>Quo warranto — Certainty in information. — The same certainty and technical precision is necessary in an information as in an indictment. So, where an information charged the defendant with “ usurping, etc,, the office of school trustee of the inhabitants of the village of Cahokia,” and there is no such office known to the public law of the State, but exists, if at all, by virtue of a private law, it is defective in not showing by proper averments, the existence of such law creating the office.</p>

<p>Statement. — This case is similar to Minck v. The People {ante, 127), and reversed on the same grounds.</p>

<p>Appeal from the Circuit Court of St. Clair county ‘ the Hon. Amos Watts,'Judge, presiding.</p>

<p>1. Payment. — Appellee’s intestate at the time of his death held a note and mortgage against appellant. A paper purporting to be his last will was admitted to probate, and under it appellant and H. were appointed executors, and took possession of the property, including the note and mortgage in question. By the terms of the pretended will a gift was made to appellant of said note and mortgage upon his payment to the testator’s executors of §1,000, and acting under this provision in the will, appellant paid to his co - executor H. 81,000, and took up the note in suit. The pretended will was afterwards declared by the Supreme Court to he null and void. Held, that even if appellant had paid the 81,000 in good faith, it did not discharge the debt, and he would only he entitled to a credit of that amount upon the note.</p> <p>2. Application oe payments. — At the time of his death appellee’s intestate was indebted to appellant §447.05 on account, and appellant was indebted to appellee’s intestate on notes to the amount of §975, aside from the note in suit. The claim, of appellant for §447.05 was allowed against said estate, and paid by his co-executor, H., to appellant, who thereupon repaid it to his co-executor upon the note in suit. No action was taken in respect to the notes for $975, held by the estate against appellant. Held, that it was the duty of appellant to have set off his claim against the estate against the claim for §975 held by the estate against him; that, acting in the capacity of an executor of said estate, he should have placed the credit where his testator would have directed, if living.</p>

<p>Appeal from the Circuit Court of Pulaski county; the Hon. D. J. Baker, Judge, presiding.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. ' William H. Snyder, Judge, presiding.</p>

<p>1. Variance — Objection must be specific. — An objection that the instrument offered in evidence, varies from4 that set out in the declaration is too general, if the alleged variance is not specifically pointed out.</p> <p>2. Parol testimony to vary writing. — When rule does not apply. —The rule against the admissibility of parol testimony to affect that which' is written has no application to cases where a part only of the contract was reduced to writing. Where a written agreement is incomplete, and per se unintelligible, verbal testimony is admissible where it is not inconsistent with the written contract.</p>

<p>Error to the City Court of Alton; the Hon. H. S. Baber, Judge, presiding.</p>

<p>Error to the County Court of Jackson county; the Hon. George W. Andrews, Judge, presiding.</p>

<p>Ebbob to the Circuit Court of St. Clair county; the Hon. William H. Shtdeb, Judge, presiding.</p>

<p>Quo warranto — JUDICIAL notice. — Where an act of the legislature, which is declared to be a public act, expressly recognizes and amends a prior private law, courts are charged with knowledge of the provisions of the latter, and will take judicial notice of ’the existence and duties of an office provided in the latter.</p>

<p>Appeal from the Circuit Court of St. Clair county ; the Hon. Amos Watts, Judge, presiding.</p>

Clair county; the Hon. William H. Sstdeb, Judge, presiding. .This was an action of trover by appellee for 270 bushels of wheat, grown by a tenant upon appellee’s farm, and seized and sold by appellant under an execution from a justice’s court against appellee. The writ of attachment against appellee in the justice court was levied upon one-third of thirty-five acres of wheat growing on the farm of appellee, and afterwards sold upon execution issued in said cause.

David J. Baker, Judge, presiding. This was an action of trover by appellee against appellant, to recover for the unauthorized seizure of a crop of corn, tobacco and top fodder, by virtue of a chattel mortgage given by appellee to appellant.

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

<p>Bill of exceptions — Must contain all the evidence. — In the absence of a certificate that the hill of exceptions contains all the evidence, it will be presumed that sufficient evidence was heard to warrant the judgment of the court.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

<p>1. Practice — Bill of exceptions. — The action of the court in overruling a motion to quash a writ of certiorari can only be brought to the notice of this court by a bill of exceptions. Recitals by the clerk in the record are not suEcient.</p> <p>2. Appeal — Only from final judgments. — This court can only review final orders, judgments and decrees of the court below. The overruling of a motion to quash a writ of certiorari is not such a final disposition of the case as may be appealed from.</p>

<p>1. Practice — Curing error by verdict. — The general rule is that a verdict will aid a title or cause of action imperfectly set out, hut not an imperfect title or cause of action; and where the declaration does not set out a cause of action, the statute of amendments and jeofails does not apply.</p> <p>2. Intendment after verdict. — In an action of covenant upon a deed, the pica of non est factum only puts in issue the giving of the deed, and it is not necessary for the plaintiff to prove the averment as to a breach, that is admitted; therefore there can be no intendment after verdict that proof was made of facts sufficient to show a breach.</p> <p>3. Covenant — Breach.—Where a deed covenanted against all claims except a certain incumbrance of §10,000, and taxes, etc., there is no breach of the covenant by reason of unpaid interest remaining due upon the incumbrance. The principal sum is expressly excepted, and this draws with it the unpaid interest.</p>

Joseph E. Gaby, Judge, presiding. This was an action of trover, commenced on the 16th day of July, 1872, by George R. Hoyes and William D. Messenger ágainst the Chicago and Horth Western Eailway Company, to recover damages for the alleged conversion of a quantity of paper the property of the plaintiffs, of the value of $2,000. The declararation was filed July, 24, 1872, and on the seventh day of August following the defendant appeared and pleaded.

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moean, Judge, presiding.</p>

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

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

Mason B. Loomis, Judge, presiding. This was an action of assumpsit brought by appellee against appellants, to recover an alleged balance claimed by him for services as-salesman for appellants in the hat and cap trade. There was a verdict and judgment for $246.29 for the plaintiff in the court below, and the defendants bring the case here by appeal.

<p>I. Garhishmeht — Parties oh appeal. — Where, in garnishment proceedings, the fund in the hands of the person summoned as garnishee is claimed by a third person, the statute makes provision that such third person may become a party to the garnishment suit, and it appearing in this case that the claimant did appear, though informally, and was recognized as a party in the cause, and his rights adjudicated, he is a parly in such setise as entitles him to have the record reviewed on appeal.</p> <p>2. Assignment of judgment — Bona eides — Rule oe evidence.— Appellant, upon trial of the person summoned as garnishee, offered in evidence an assignment by the judgment creditor, to him of the judgment sought to be reached by the garnishee process. The assignment bore a date prior to the garnishee process, purported to have been made upon a sufficient consideration, was properly executed, and was admitted in evidence without objection. Held, that fraud will not be presumed, and the burden of impeaching the good faith or validity of the assignment was upon the party asserting its invalidity.</p>

<p>Creditor’s bill — Discovery against municipal officer for salary. —A judgment creditor has the right to file a bill against his judgment debt- or for a discovery of debts due to him as salary for services as a county commissioner. Whether upon a disclosure of such indebtedness, it may be made available in the hands of a receiver to the payment of the judgment, is not decided. If the debtor has received a county order, he may he required to turn it over to a receiver, and if he has already drawn the money, it can be reached.</p>

Murray F. Tuley, Judge, presiding. This was a bill brought by appellant for an accounting for patent fees or royalty received by appellee Fraser, on a patent owned by him and complainant jointly.

<p>1. Suits, where brought — Dependant in foreign county. — In actions at law process of the court cannot issue directed to a sole defendant residing in a county different from the one in which such action is commenced, and when this has been done and judgment rendered against such defendant, it is the duty of the court, upon motion, to set such judgment aside as irregularly obtained.</p> <p>2. Construction of statutes. — Where two statutes are repugnant to each other in their provisions, the latest expression of the legislative will must prevail. A subsequent re-enactment of a former statute will, under this rule, be held to be the latest expression of legislative will.</p>

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

Thomas A. Mohan, Judge, presiding. This action was by the Chicago West Division Railway, against William P. Rend and Edwin Walker.

<p>1. Peactice — Excessive judgment. — A plaintiff cannot recover more than he claims, and if he takes judgment for more it is error.</p> <p>2. Indoesement on summons — Entey in justice’s docket. — The amount indorsed on the summons concludes the plaintiff, and he is limited to that in his judgment. And where the entry on the justice’s docket showed the amount of plaintiff’s demand, it will, in the absence of the summons, be presumed to correspond with the amount indorsed on the summons.</p>

John Gr. Bogers, Judge, presiding. This was an action of assumpsit by Wisner against the City of Chicago, upon the common counts for money had and received. The case was tried by the court without a jury, and finding and judgment for defendant, and plaintiff brings the case to this court by appeal.

W. H. Barnum, Judge, presiding. This was a hill in chancery brought by appellant against the Illinois Land and Loan Company, Caleb Clapp et al., to subject effects in the hands of Clapp to the payment of a decree obtained by appellant in May, 1877, against said company and others. By the will of her step-son, Percy W. Bonner, who died in July, 1870, appellant became the owner of his personal property.

<p>1. Practice in chancery — Non-resident defendant appearing after decree. — Except under special circumstances, the only proper time for the adverse party to contest the right of a defendant not personally served with process, to come in and be heard touching the matter of the decree, is at the time of mating the application.</p> <p>2. Application to be heard — Practice.—An application of a nonresident defendant to be heard after decree, should be made by petition, to which the adverse party should file an answer. In this manner the rulings of the court in respect to the application, can be properly brought up for review in an appellate court.</p> <p>8. Joining- issue. — If a party voluntarily take issue of .fact upon the pleading of his adversary, he thereby admits such pleading to be properly filed. So, where a non-resident defendant had been permitted to answer after decree, and the complainant had joined issue upon such answer, it was error at a subsequent stage of the case to strike such answer from the files on motion, on the ground that he had no right to file it.</p> <p>4. Dilatory motions. — Motions of a dilatory nature should be interposed at the first opportunity, and if any reason exists for delay, such reason should be shown to the court in support of the motion.</p> <p>5. Privileged communications — Attorney’s clerk. — The affidavit in support of the motion in this case alleged facts the knowledge of which was acquired from the adverse party and his attorney by B., while acting as clerk for the attorney of the adverse party. These communications were privileged, and it was a clear breach of professional confidence for B. to disclose them.</p>

Joseph E. Gary, Judge, presiding. Appellant Creighton had a claim against appellee, the Village of Hyde Park, for grading streets, building sidewalks, etc., and he employed Pliny B. Smith, for whose use this suit is brought, to collect the same.

<p>1. Execution. — The office of an execution is not to secure but to enforce payment of a debt, and an attempt to make use of it for purposes of security merely, postpones it to other executions subsequently issued. So, if a plaintiff delivers an execution to the sheriff with directions to hold until further orders, it creates no lien on the defendant’s property as against a subsequent execution.</p> <p>2. Duty oe shebiee to levy unless obdebed to hold. — It is the duty of the sheriff to obey the mandate of the writ unless he receives express directions not to do so. A mere statement by the party delivering the execution, in reply to the question “ what he wanted done with it ? ” “ Nothing that I know of” is not a sufficient direction to warrant the sheriff in holding the execution, and failing to make a levy according to the mandate of the writ.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit brought by appellee against appellant in the Superior Court of Cook county, to recover for moneys f?aid by appellee to take up certain promissory notes given by him for the'accommodation of appellant, amounting in the aggregate to $850.

<p>1. Service of process upon a corporation. — Service was had upon the agent of the defendant corporation, and it appeared and demurred to the declaration. For the purposes of the bill in this suit, this will be considered as a valid service, so that the judgment obtained against the company cannot be impeached collaterally.</p> <p>2. Corporation — Estoppel.—Where an association holds itself out to the public as operating in a particular line of business, under a name that imports a corporation, as to all persons with whom it contracts, it is estopped from denying its corporate existence.</p> <p>3. Dissolution of corporation — Fund for payment of creditors. —A corporation holds its property in trust, first, to pay its creditors, and if such corporation should dissolve and divide its property among its shareholders without first paying its debts, equity would enforce the claims of its creditors by converting all persons, except bóna fide purchasers to whom the property has gone, into trustees, and compel them to contribute to the payment of the debts of the corporation to the extent of the property received.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by George H. Tobey and William L. Pierce, to recover the price of certain merchandise alleged to have been sold and delivered by them to Charles L. Arnold and Eliphalet H. Tillotson, the defendants. The plaintiffs filed their declaration, consisting of the common counts only, to which the defendants pleaded the general issue.

Mason B. Loomis, Judge, presiding. This was an action of assumpsit brought by appellee, John Dumas, against appellant, Oliver Besley, to recover for labor and services and materials furnished by appellee in and about the building a house for appellant. The declaration contains only the common counts in indebitatus assumpsit, to which there was a plea of the general issue, with notice of set-off.

John Gr. Ro&ers, Judge, presiding. This was an action of trover, commenced on the 11th day ot May, 1878, by William Dewar against the Bank of Montreal, for the alleged conversion of a certificate of deposit for $5,700 and interest, the property of the plaintiff. The defendant appeared and filed a plea of not guilty, and on the issue thus formed, a trial was had in September, 1879, resulting in a verdict in favor of the plaintiff, for $7,220.

<p>1. Confession of judgment — Warrant of attorney must be proved. — In proceedings for confession of judgment upon a warrant of attorney, the court obtains jurisdiction of the person of defendant only by virtue of the warrant of attorney, and its due execution must, therefore, be proved.</p> <p>2. Recital in judgment — Rot conclusive. — A recital in the record of a judgment entered by confession, that the execution of the warrant of attorney was duly proven, is conclusive unless contradicted by the record itself; hut where the record purports to contain all the evidence upon which the finding is based, this, as well as any other finding, may he reviewed upon appeal, and if found to be unsupported by evidence, may he reversed.</p> <p>3. Confession in term time — Must be in open court. — Where a judgment is entered by confession in term time, it should he done in open court. The cause should be brought before the judge in person and passed upon by him. Such judgments can be entered by the clerk of the court only in vacation.</p> <p>4. Pbactice — Bill of exceptions. — Where there are several judges holding separate branches of the same court, the bill of exceptions should be signed by the judge before whom the particular matter embraced therein was heard; but where the principal object of the bill of exceptions is to show that the matter had never been heard before the court in any of its. branches, it is not improper that the bill should be signed by all the judges of the court. It is the only way in which that fact can properly be made a matter of record.</p> <p>5. Featjd in peocubing note. — Appellant alleged that the execution of the note with a warrant of attorney to confess judgment was obtained by fraud; that he only intended to give a note in the common form, and it appearing that he was solicited to sign the note by the agent of appellee at a time when he was busy with a customer in his business; was told by the agent that it was only a note in the common form — was not a judgment note; and while he was signing it his attention was purposely diverted from the paper, by the agent, the court is of opinion there was such fraud used in obtaining the execution of the note as to warrant setting the judgment aside.</p>

John G. Kogkers, Judge, presiding. This was an action of assumpsit brought by appellee, John H. Armstrong, against appellant, The Hinsdale-Doyle Granite Go., to recover for, commission and salary claimed by appellee to be due to him for services in soliciting and securing granite contracts for appellant under two written agreements between appellant and appellee. The declaration contained the common counts only, to which were attached copies of the two agreements.

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

Joseph E. Gaby, Judge, presiding. This cause was brought to this court by appeal, at the Harch term, 1879, and a judgment therein in favor of Knoles, the defendant below, was reversed, for reasons stated in the opinion then filed. Oldershaw v. Knoles, 4 Bradwell, 63.

Mason B. Looms, Judge, presiding. May 1, 1878, Eames demised to Gustorf & Company certain premises situated in Chicago, with engines, boilers, etc., from that date to April 1, 1879, for the rent of $1300, payable in monthly payments of $108.33 on the first day of each month.

Mason B. Loomis, Judge, presiding. This was an action of replevin brought by Mary Bernard, against John J. Curran, Charles Kern and Homer B. Galpin, to recover possession of a horse, harness and buggy, claimed by the plaintiff as her property. The suit was commenced before a justice of the peace of Cook county, where judgment was rendered for the defendants.

John A. Jameson, Judge, presiding. This was an action on the case brought by appellee against appellant, to recover damages for personal injury to the former, occasioned by reason of the latter having wrongfully and negligently suffered the sidewalk upon a portion of Third Avenue in the city of Chicago, to be and remain in a bad and unsafe condition, and divers planks wherewith such sidewalk was laid, to be and remain broken and unfastened, by means whereof, etc., the…

<p>1. Practice — Jurisdiction over judgments — Setting aside. — Although courts of law may exercise equitable jurisdiction over judgments rendered by confession, it is only ancillary to their jurisdiction as courts of law, and cannot convert them into courts of equity. The principle that having once obtained jurisdiction it will be retained for all purposes of relief, does not apply in such cases. In the exercise of this equitable power they may let a defendant in to defend, but they cannot hear the defense itself; that must be tried at law.</p> <p>2. Usury — Forfeiture of interest. — A party loaning money at an usurious rate of interest, forfeits the entire interest, and can recover the principal only.</p>

<p>Cbbtioeabi. — A petition for a certiorari showed as reasons why an appeal was not taken from the judgment of the justice, that the case before the justice was continued to a certain hour, and at the hour named, the defendant appeared for trial, and found neither the plaintiff nor justice was present, and was told by the justice’s clerk that the justice would not he present that day for the trial of the case. Judgment had in fact been entered for plaintiff on that day an hour before the time fixed. Held, sufficient to support a petition for certiorari.</p>

William H. Barrum, Judge, presiding. This was a suit brought by the town of Horthfield before a justice of the peace against appellant and others, to recover the penalty prescribed by the statute for obstructing an alleged highway running on the section line between sections 2 and 11, Township 42, N. of R. 12, east of the 3d P. M., in the county of Cook.

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

<p>1. Statement. — Appellee’s intestate, Horan, in 1865, gave an indemnifying bond for $7,000, with appellant’s testator as surety thereon, and to secure said surety, soon after conveyed to him, by verbal arrangement, personal property worth about $16,000, and some real estate of considerable value, which was afterwards conveyed by warranty deed to the surety. Horan was at the time of these conveyances largely indebted to others than the creditor, whose debt was secured by the bond aforesaid. It was claimed by appellee that appellant’s testator received said property in trust for the payment of the particular debt mentioned, and was to return to him the balance of the proceeds of said property after payment of the debt for which he was surety; and that appellee’s testator had realized a large sum from the sale of the property for which he ought to account. The claim was first filed in county court against the estate of appellant’s testator, and came to the Circuit Court by appeal.</p> <p>2. Assignment — Statute of frauds. — Taking the transaction as a whole, instead of being a mortgage, it was an assignment by an embarrassed debtor, and being verbal and comprising both real and personal property, it was invalid under the Statute of Frauds.</p> <p>8. Assignment for benefit of creditors. — If the conveyance had been confined to personal property, been made in good faith for the payment of all creditors of the assignor, it would have been good; hut being made for the payment of a particular debt, the balance to he returned to the assignor, there being other creditors, it must be considered as made to hinder and defraud creditors, and for this reason void under the Statute of Frauds, and and the assignor could maintain no action against the assignee for the return of any balance.</p> <p>4. Administrator — Action fob recovery of real property. — Even if the question of fraud was disregarded, and the transaction as to the real estate considered as a mortgage, then if the condition was not performed during the lifetime of the assignor, there would he an estate by way of equity of redemption, which at his death would be cast upon his heirs, and for which they and not the administrator could have an action. Or if the transaction should take the form of a resulting trust in the assignee, the heirs alone could maintain an action therefor.</p> <p>5. Resulting trust — Statute of limitations — Jurisdiction of county court. — As to the personal property it is difficult to see how this action can he maintained, for if it partakes of the character of a resulting trust, the county court had no jurisdiction of the subject-matter; and if it is not of that character, hut in the nature of an ordinary claim against the estate of a deceased person, then it is barred by the Statute of Limitations.</p>

<p>1. Recobdeb of deeds — Failure to index a mobtgage. — To warrant g recovery npon the official bond of a recorder of deeds, it must appear that he has failed to perform some official act enjoined upon him by law, and a resulting damage to the party suing. So, a recovery cannot be had for a failure of the recorder to enter a mortgage npon a sectional index, the law 1 >t requiring him to keep such an index, and it appearing that such moitgage was properly indexed in a hook kept for that purpose, of which book plaintiff had knowledge and failed to examine.</p> <p>. 2. Note — Indobseb—Discharged by laches of indorsee. — The indorsee having neglected for three years after the maturity of the note to enforce its collection, the indorser is discharged from liability thereon unless it can be shown that the maker was insolvent or suit would have been unavailing. This being so, a voluntary payment to the indorsee by the indorser would not revive the claim as to the indorser so as to show an injury and loss to him, and thereby furnish a ground of action against the recorder for a loss arising from his negligence.</p>

George W. Stipp, Judge, presiding. On the 26th day of June, A. D. 1879, an execution was issued out of the Circuit Court of LaSalle county, in favor of George H. Locey, as trustee for Eva Scherzer, and against Charles A. Scherzer, for §9,944.40, damages and costs of suit. This execution was based upon a judgment confessed on said day by Scherzer, the said Eva, the beneficiary therein, being his wife.

John G. Glenn, Judge, presiding. This was a bill in chancery for partition of several tracts of land, filed by the plaintiffs in error against the defendants in error, alleging that the parties were owners thereof as tenants in common, claiming through common ancestors, Isaiah Drury and Priscilla Drury.

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

<p>1. Gift — Assent by donee. — Where a sum of money or other personal property is delivered to one person as a gift to another, it is not necessary to the validity of the gift that the donee should assent thereto. In such case assent will be presumed.</p> <p>2. Statement — Gift causa mortis — Conversion.—Plaintiff in error claimed that the money sued for was, by direction of the deceased in his last sickness, a gift to the wife of plaintiff in error, and that in pursuance of such direction he drew the money from the bank, took the certificate in his own name, and delivered it to his wife. In such a case, the fact that the certificate was taken in his own name, if he acted in good faith, and in the absence of fraud, would not constitute a conversion by plaintiff in error, unless at the time of giving the direction the donor was mentally incapable of disposing of his property, and plaintiff in error had reasonable grounds to believe in his incapacity.</p> <p>3. Set-off — Res adjtjdicata. — Where the record fails to show that the subject-matter of the present suit was insisted upon and treated as a set-off in a former suit, it will not be considered as res adjudicada. It must appear that such question was submitted to the jury in the former case; it may then be considered that the defendant in error had waived his claim to pursue it further.</p> <p>4. Instructions — Office of — In favor of plaintiff in error.— The true office of instructions is to enlighten the jury upon the material issues in the case, and not to mislead or confuse them. Where the error in an instruction, if at all, is in favor of the plaintiff in error, it will not be considered.</p>

<p>Appeal from the Circuit Court of Kendall county; the Hon. H. H. Codt, Judge, presiding.</p>

<p>Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Fbanois G godspeed, Judge, presiding.</p>

<p>1. Bill to impeach becobd — Equity jubisdiction. — A bill to impeach a record on the ground that, as it appears it is contrary to equity, and so remains only by reason of a mistake or accident beyond complainant’s control, is a subject of equity jurisdiction, and the power of a court of equity in this respect is not limited by the character or effect of the amendment sought, nor is the proof upon which it may be exercised confined to that which is documentary, written or certain. It is enough if the amendment be demanded by equity and the proof is such as to satisfy the conscience of the chancellor.</p> <p>2. Statement. — This was a bill filed to vacate a decree entered against appellant in 1872, and for an injunction. It was alleged that said decree was originally entered in violation of an agreement of counsel of both parties that the cause should be dismissed; that afterwards upon motion in said cause, an order was entered by the judge vacating said decree, and leaving said cause to stand for trial in regular course, and the parties took testimony, and were preparing for a trial, when it was discovered that the order setting aside said decree had been erased from the judge’s docket and a final decree against complainant entered of record, whereupon, on motion of the defendant, said original cause was stricken from the docket.</p> <p>8. Dismissing bill on motion to dissolve injunction. — Where the only relief sought in a bill is an injunction, it is not error upon a motion to dissolve the injunction, to dismiss the bill; but in this case the bill demanded other relief, and should have been retained for final hearing, and it was error to dismiss it upon the dissolution of the injunction.</p> <p>4. Amending becobd oe coubt upon motion. — Where the amendment sought is merely to show some action of the court really taken, but not recorded, it may be allowed upon proper'notice and due proof; but where the proposed amendment, while not directly changing or affecting the existing record, as a record, nullifies or materially changes its operation, the power of the court to allow it upon, a mere motion at a subsequent term, may be doubted.</p> <p>5. Res adjudicata. — The action of the court in overruling a motion to amend a record, made at a subsequent term, though affirmed upon appeal, is not an adjudication of the question here presented, which is different in that it involves the power of a court of chancery to vacate, change or otherwise amend its record of a former term upon a proper bill for that purpose.</p> <p>6. Impeaching becobd. — A record may be impeached as well for not containing what it ought to, as for containing what it ought not. The question is whether, as.it stands, it is inequitable and injurious to complainant, and the result of accident without fault or laches on his part.</p>

<p>Error to the Circuit Court of Kankakee county; the Hon. FT. J. Pillsburt, Judge, presiding.</p>

<p>Error to the Circuit Court of Mercer county; the Hon. John G. Glenn, Judge, presiding.</p>

<p>1. Motion to strike out becord. — Leave was given to appellant to move the court below to amend the bill of exceptions by adding the words, “the above was all the evidence offered by either of said parties.” The amended record sent up from the trial court, shows that no order so amending the bill of exceptions was made by the court, but the amendment was inserted in the record by the clerk. A motion in this court therefore to strike said words from the amended record will be sustained.</p> <p>2. Bill of exceptions — Must contain all the evidence. — The bill of exceptions then failing to show that it contains all the evidence given, this court will presume that there was evidence sufficient to support the verdict, and the judgment will be affirmed.</p>

<p>Appeal, from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.</p>

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

<p>Account — Practice in. — In an action of account the issue before the court is not whether upon a final settlement, the account is balanced, but whether there should be an accounting. The adjusting of balances is left entirely with the auditors. Evidence, therefore, is inadmissible before the court upon the question whether or not profits had accrued, or whether one joint tenant or tenant in common had received more than his share.</p>

<p>Appeal from the Circuit Court óf Jo Daviess county; the Hon. William Brown, Judge, presiding.</p>

<p>Appeal from the Circuit Court of "Whiteside county; the Hon. Johf Y. Eustace, Judge, presiding.</p>

<p>Sep abate maintenance — Allowance of solicitob’s fees on appeal. —This court has no power to make an order upon appellant to pay the wife, complainant in a bill for separate maintenance, a sum as solicitor’s fees, to enable her to defend the case on appeal to this court by her husband.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. 3ST. M. Lands, Judge, presiding.</p>

<p>1. Equitable jurisdiction. — Where the holder of a note, which has been paid but not taken up, is induced to indorse the same after payment, and it is then taken by another without his consent, and a suit brought, and judgment rendered thereon against the maker, such indorser becomes liable to an action at the suit of the maker, and has such an interest that he may maintain a bill in equity to enjoin collection of such judgment and to set it aside.</p> <p>2. Estoppel. — The party obtaining such judgment cannot object that the indorser has been guilty of laches, or that he may have a complete remedy at law, because, by making use of a fraudulent indorsement to compel payment a second time, he has no equity to be protected.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Owen T. Beeves, Judge presiding.</p>

<p>1- Cities — Construction of Sidewalks. — A city is not bound toso construct its sidewalks as to furnish complete immunity from accident to foot passengers; the utmost that can be required is, that it exercises reasonable care in their construction and maintenance.</p> <p>2. Care in passing over. — A person passing over a sidewalk is bound to exercise only reasonable care in respect to his own safety, and until he is chargeable with notice to the contrary, he has a right to presume the same to be in a reasonably safe condition. But he is bound to act with prudence in the light of known facts, and if he heedlessly run into known danger, he must bear the consequences.</p> <p>3. Bulb of determining whAt is care. — In respect to the care to be exercised by a person passing over a sidewalk, the person is not to be judged by the opinions of others. He is entitled to the benefit of his own judgment if it leads him into a reasonably prudent course of conduct. But where the dangerous condition of the walk is known, his care must be measured by the necessities of the case.</p> <p>4. Accumulations of snow. — If the walk was properly constructed, then so long as the snow and ice did not accumulate so as to cause an obstruction to travel, the city was not bound to remove it.</p> <p>5. Comparative negligence. — In this case the plaintiff had knowledge of the slippery condition of the walk, and even though the defendant may have been negligent in constructing the walk or in failing to remove the snow and ice, yet plaintiff’s negligence and want of care in passing over it, was such as to preclude his right to recover.</p>

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

<p>1. Violation op ordinance — Imprisonment.—Where an ordinance provided that upon rendering judgment of conviction thereunder, the justice, if the fine and costs were not paid at once, might order the defendant to stand committed until they were paid, unless the defendant should appeal therefrom, it was error, upon trial on appeal in the circuit court, to render judgment and order the defendant to be committed to jail. As soon as the defendant had perfected an appeal from the justice, the ordinance, so far as it related to imprisonment, had spent its force, and there could be no further imprisonment under it.</p> <p>2. Imprisonment under the statute. — Neither can the order for imprisonment be sustained under the provisions of an act passed in 1879, providing that upon conviction, the offender may be committed until fine and costs are paid. The act itself and the ordinance under which conviction was had are so variant as to the manner of punishment that they cannot be construed as standing together; and taken by itself the act could only operate upon fines imposed subsequently to its passage.</p>

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

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

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

<p>Statement — Excessive judgment. — The court is of opinion, from an examination of the evidence, that the judgment is for too large a sum, and it is reversed for that reason.</p>

<p>1. Promissory note — Guaranty.—Where the guarantor of a promissory note has been compelled, by the default or neglect of the maker, to pay the same, the law will imply a request on the part of the maker to make the payment for him, and the guarantor has a right of action for money paid against the maker.</p> <p>2. Cause or action — When it accrues. — Where judgment has been obtained against the guarantor of a note by the holder, the cause of action against the maker does not accrue to the guarantor until he has paid such judgment.</p>

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

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

<p>Error to the Circuit Court of DeWitt county; the Hon. Lyman Laoey, Judge, presiding.</p>

<p>Error to the County Court of Vermillion county; the Hon. R. W. Hanford, Judge, presiding.</p>

<p>Error to the Circuit Court of Greene county; the Hon. A. G. Burr, Judge, presiding.</p>

<p>Ebrob to the Circuit'Court of Edgar county; the Hon. J. W. Wilkin, Judge, presiding.</p>

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

<p>1. Mortgage — Fraudulent release. — Where a release of a mortgage was unauthorized, the mortgagor not having paid the debt, cannot set up such release as a defense without first paying the debt, no rights of third parties having intervened.</p> <p>2. Usttby — Commissions to broker. — Payment to a broker of a commission for procuring the loan .where there is no evidence that the lender ha d anything to do with it, is not an usurious transaction.</p>

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

<p>Obdinance — Right of appeal. — A charter of a town which gives exclusive jurisdiction of cases under it to police magistrates, and restricts the right of appeal to the circuit court, is in conflict with the general law, and void. Justices of the peace have concurrent jurisdiction with police magistrates in such cases, and an appeal may be taken to the county court.</p>

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

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

<p>Appeal from-the Circuit Court of McLean county'; the Hon. Owen T. Reeves, Judge, presiding.</p>

<p>Criminal law — Indictment—Variance.—Where, upon an indictment for an assault with intent to murder, upon one “ Frank” Blackburn, the jury returned a verdict of guilty of assault upon “Edward" Blackburn, and there was judgment upon the verdict, the variance was held fatal.</p>

<p>1. Peactice — Affidavit of mebits — Plea of non est factum. — A plea of non est factum, duly verified, to an action upon an appeal bond, presents a good defense upon the merits, and the affidavit of the truth of the plea is a sufficient affidavit of merits.</p> <p>2. Non-besident plaintiff — Secubity fob costs. — The right of the defendant to insist upon security for costs — in the case of a non-resident plaintiff, is not waived by pleading to the action.</p>

<p>Statute op Limitations — Waiver—Incompetent testimony. — To an action for money lent, the defendant pleaded payment in full, and the Statute of Limitations. The defendant, when upon the witness stand, testified to the fact of payment, and upon cross-examination was asked, “Do you take advantage of the Statute of Limitations to avoid paying the plaintiff this demand? ’’ to which, under objection, he answered, “ I do not want to avoid paying my just debts by any Statute of Limitations; but I do not owe her anything. ” This was not a waiver of the defense of the statute. The answer itself had no such purport, and even if it had so stated in unequivocal terms, it would not, under the circumstances, be considered a waiver.</p>

John A. Jameson, Judge, presiding. This was a suit commenced before a justice of the peace, by appellee, against appellant and David Gr. Bardon and Michael Bardon, to recover for the loss of a horse, killed through the alleged negligence of appellant and the Bardons. Michael Bardon was not served with process. On appeal and a trial in the Superior Court of Cook county, and after a verdict against appellant and David G-.

Thomas A. Moban, Judge, presiding. This was an action brought July 6, 1875, by appellant Scammon against appellee, the Commercial Union Assurance Company, upon a policy of insurance bearing date, January 2, 1874, issued by the latter to the former, whereby the defendants, in consideration of the sum of $62.50, paid by plaintiff as premium, insured the building of the plaintiff known as Ho. 2(59 Michigan avenue, in the city of Chicago, in the sum of five thousand dollars…

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

M. F. Tuley, Judge, presiding. This was a bill in equity by appellee Sebastian, to foreclose three several trust deeds upon premises situate in the city of Chicago, and properly described, made to one Glustavus Troost by Jacob Fichter, and Elizabeth, his wife, alleged to have then been the owners of said premises, at the following dates and mentioned purposes.

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

S. M. Moore, Judge, presiding. These were mechanic lien proceedings, and embrace four cases which were consolidated and heard in the Superior Court of Cook County, where a decree was entered in favor of the several lien claimants for various sums, with the usual order of sale.

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

<p>1. Certiorari — Practice—Dismissed for want of Prosecution.— The practice in cases brought from a justice court to the circuit court by certiorari is the same as in appeal cases, and the circuit court has no jurisdiction to dismiss such a case on call for want of prosecution, unless there has been a transcript from the justice’s court tiled in the circuit court ten days before the term at which such action is taken, nor in cases where the appeal is taken by filing bond with the clerk of the court, unless there has been a service of summons upon the appellee, return of two nihils or his voluntary appearance ten days before the commencement of the term.</p> <p>2. Absence of bill of exceptions. — In cases of appeal and certiorari from justices’ of the peace, the jurisdiction of the circuit court, being statutory, should appear on the face of the record, and cannot be presumed. So, where on appeal or error from the judgment of the circuit court dismissing a writ of certiorari on call for want of prosecution, the whole record from the circuit court is certified to this court, although the record contains no bill of exceptions, no presumption in favor of the jurisdiction of the circuit court will be indulged, if the record as certified fails to show such jurisdiction.</p>

<p>1. Attachment. — Levy on whit. — In order to secure a valid levy of a writ of attachment upon personal property, the property must be in view of the officer. Where grain in a car was at a station a few miles from Chicago, the service of a writ of attachment by the-officer .merely indorsing a levy upon the writ, without going where the grain was, is insufficient, and a subsequent attaching creditor who made a proper levy upon the grain is entitled to preference.</p> <p>2; Sale. — The statute makes no provision for a private sale of property attached, and such a sale will have no effect upon the lien of junior attaching creditors.</p>

W. K. McAllister, Judge, presiding. This is an action on the case brought by appellee, in which she recovered damages against appellant for injuries alleged to have been caused by the negligence of its servants in the management of its street cars and turn-table.

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

. S. M. Moore, Judge, presiding. The record in this case shows the institution of several suits for the establishment and foreclosure of mechanics’ liens upon the same property, their subsequent consolidation, and a final hearing of the consolidated cause on pleadings and proofs, resulting in a decree in favor of the petitioners.