Volume 7 — Illinois Appellate Court Reports

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

<p>1. Suit oh guabdiam’s bohd — Failube to allege appoimtmeht oe mew guabdiak. — An action upon a guardian’s bond for a failure to pay over money to a subsequently appointed guardian, cannot be sustained if the declaration fails to allege the due appointment of the plaintiff as successor. The plaintiff shows no right to sue, under the conditions in the bond. The mere proferí of her letters of guardianship attached to the declaration is not a sufficient averment of her appointment.</p> <p>2. Failube to make bepobt — Necess aby allegatioks. — The declaration in such suit, alleging as a further breach of the bond, that the guardian had failed to make report to the court when thereunto required, is defective because it fails to allege that the guardian was required by the court to make such report.</p> <p>8. Remittitub. — An assessment of damages beyond the amount expressed in the ad damnum is cured by a remittitur entered in the appellate court.</p> <p>4. Damages assessed by cotjbt. — In a suit upon a guardian’s bond, the-damages may be assessed by the court.</p>

<p>1. Statement. — Appellants, in June, sold a machine to Davis, who was to take it on trial, and if satisfactory, was to pay part cash, securing the balance by chattel mortgage on the machine. On July 15th, he concluded to keep the machine, made the first payment and gave a chattel mortgage for the deferred payments, antedated for the purpose of securing interest for the full time on the notes.</p> <p>2. Sale — When title passes — Execution lien. — The sale was not completed until the 15th day of July, and until that time the property in the machine was in the vendors. The sale and mating of the mortgage were simultaneous acts, and between them there was no point of time when an execution lien could attach.</p> <p>3. Antedating notes — Estoppel.—The date of a written instrument will be presumed to be the true one, but this presumption may be rebutted unless there are circumstances which should estop the parties from asserting a date different from that written. The antedating of the notes and mortgage in this case was for a proper purpose, and the parties are not by this estopped to say that the title did not pass on the 24th day of June, the date of the notes.</p>

<p>1. False representations — Expression of opinion. — Whether a plaintiff can get no more or is likely to recover no more by an action at law for loss of her property, than is offered to her in settlement, though made in the form of a positive representation, is after all but the mere expression of opinion, and is not a representation upon which the party has a right to rely.</p> <p>2. Representation must be of a material matter. — Where the position of parties is that of adversaries, the law will not authorize either of them after a settlement has been made, to seek redress because of misrepresentation, unless it was of a material matter upon which it was proper for him to rely, and upon which he did rely.</p> <p>3. Instructions — Law and -fact. — An instruction is erroneous if it leaves the jury to determine first what were the legal rights of the parties, and then to inquire whether one of the parties made false and fraudulent representations in regard to the same.</p> <p>4. Instructions must be clear. — Instructions should always be couched in clear, intelligible terms, and if not so drawn they should be refused.</p>

<p>1. Suit oh bonds — Pleading.—Where a bond is made to a corporation by a name varying from the true name, the plaintiffs may sue in their true names and aver in the declaration that the defendants made it to them by the name mentioned in the deed. So, a bond made to the “ Board of Trustees of Township No. 5,” etc., may be sued on in the name of the “Trustees of Schools- of, Township No. 5,” etc., and there is no force in the objection that there is a variance between the instrument sued on and the one offered?</p> <p>2. Ambiguity. — Where a bond was given describing the obligees as “ Board of Trustees of Township No. 5, Range No. 9,” but omitting the name of the county, there is a latent ambiguity that may be aided by;averment.</p>

<p>Beam Shops — Keeping open tippling houses. — In order to constitute the offense of keeping open a tippling house on Sunday, it must appear that the keeping open was for tippling purposes. Merely opening the house and permitting people to resort there, no tippling being intended or permitted, will not be enough.</p>

<p>1. Practice in chancery — Cross-bill—When necessary. — When a decree on complainant’s bill will not determine the litigation, a cross-bill is necessary. So where ■ defendants in proceedings for foreclosure set up a title derived from sheriff’s sale, except as to the part set out as a homestead, it is error to decree that a sale under the foreclosure should first be made of the part set out as a homestead, without the filing of a cross-bill for that purpose.</p> <p>2. Mortgage — Inverse order op alienation. — Although it is a general rule that where a mortgagor sells portions of the mortgaged premises and retains other portions, the latter shall first be taken to satisfy the mortgage, the rule does not apply to cases of a sale of the equity of redemption upon execution, other than for the debt secured by the mortgage.</p>

<p>1. Garnishment as affected by assignment fob cbeditobs.— Where there was an assignment of all the effects of the defendant in attachment for the benefit of creditors, prior to the issuance of the writ of attachment, there is an equitable transfer of the estate of the defendant, including the chose in action in this case, and the court will notice and protect the interests of the equitable holders. Money due the defendant in attachment cannot, after such assignment, be reached by garnishment at the suit of an individual creditor.</p> <p>2. Assignment fob cbeditobs. — The power to make an assignment for the benefit of creditors exists independent of statutory provisions, and while it may be affected by such provisions, it cannot he inferred, in the absence of proof, that there is anything in the statute of a foreign state where the assignment was made, to prevent the ordinary exercise of this power.</p> <p>3. Application of payments. — Where a debtor makes a payment, he has the right to indicate upon which item of account the payment shall apply. If he does not do so, the creditor may ordinarily select the item; and if no .selection is made by either, the law will apply the payment as may seem reasonable and just.</p>

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

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

<p>Promissory note — Pleading.—To an action upon a note given to a lailroad company, to be paid “when the track of said railroad shall be laid through White comity, and cars shall run thereon," the defendant pleaded that the sole consideration was that such road should be built within three years from the date of the note, and averred that such road was not built within three years, etc. Held, that the circuit court erred in overruling a demurrer to defendant’s plea. The plea was bad on general demurrer.</p>

<p>Error to the Circuit Court of Randolph county; the Hon. W. H. Snyder, Judge, presiding.</p>

<p>1. Widow’s award — Order op payment. — In the administration of estates, the widow’s award is subordinated only to the payment of funeral expenses. An administrator may not with impunity wholly disregard the statute, and pay out of the assets of the estate such claims as he thinks fit, leaving preferred claims unpaid and unprovided for, and if he misapplies the funds, he must abide the consequences.</p> <p>2. Administration op estates — Expenses por tombstone. — When an estate is in such an insolvent condition that it can pay nothing to general creditors, nothing for physician’s bill or other expenses of the last sickness, and only in part that which the law regards a still more equitable and deserving claim, the administrator should not be allowed to expend $42.35 for a tombstone for the deceased.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. Amor Watts, Judge, presiding.</p>

<p>1. Chattel mortgage upon growing crops. — A chattel mortgage made in February, 1879, of “ the wheat and other crops now growing ” on the lands designated, the wheat having been put into the ground the fall before, is valid. The wheat, at the time of giving the mortgage, had a potential and substantial existence and was a proper subject of conveyance.</p> <p>2. Trial op right op property — Burden op proof. — In a trial of right of property it devolves on the claimant to show affirmatively that lie is the owner, and it is error to refuse to instruct the jury that the burden of proof is imposed upon the claimant.</p> <p>8. Fraudulent conveyance. — If a conveyance of property is made with a fraudulent intent and object, it is not purged of the fraud because there may also have been some other purpose in view, such as the discharge of a debt due the grantee.</p> <p>4. Renting parm upon shares — Relation op parties — Intention. —When a farm is leased upon shares, the question whether the relation of landlord and tenant, or that of tenant in common of the crop, exists, is one of intention, to be gathered from the circumstances, and in ascertaining this intention the matter of possession by the lessor is of controlling importance.</p> <p>5. Ownership op crops — When title passes. — If the relation of landlord and tenant exists, the property in the crop is in the tenant until harvested, and the landlord’s portion is set apart, and until division it cannot be levied upon as the property of the landlord; but if the parties are tenants in common of the crop, the landlord, before división, has such an interest as may be levied upon.</p>

<p>Promissory note — Unauthorized transfer by agent. — Where a party purchases negotiable paper, and without any indorsement to him, permits it to remain in the hands of the vendor, invested with all the evidence of ownership, and the latter afterwards indorses such paper to another for value, without notice, the loss must fall upon him whose act or neglect has enabled the agent to commit the wrong.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Charles T. Wake, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. F. H. Peipee, Judge, presiding.</p>

<p>1. Master and servant. — A master is not Hable to his servant for any defects in materials furnished to the latter for use in the master’s service, unless he is negHgent in providing such material or omitting to warn the servant of the defects. There is no impHed warranty that the materials shall be sound, or that the servant shall not be exposed to extraordinary risks.</p> <p>2. Damages — Manner oe computing. — In estimating damages in cases of this character, the jury may take into consideration the amount of earnings by the deceased, but the question whether his minor children had or had not other means of support after his death is whoUy immaterial, and cannot be considered.</p>

<p>1. Practice — Entering decree. — A decree is inoperative as a decree until it has received the file mark of the clerk. So, where a decree was prepared by the judge before the expiration of his term of office, but was not filed until after his successor had been elected and qualified, it is a nullity. A judicial act can only be performed by one who was a judge at the tune the act was done.</p> <p>2. Judicial notice. — This court will taire judicial notice of the persons who are judges of the circuit court.</p>

<p>Error to the Circuit Court of Franklin county; the Hon. D. M. Browning, Judge, presiding.</p>

<p>1. Testimony — Interested witness. — Interest in the event of a suit does not necessarily detract from the credibility of a witness, nor is it correct to instruct the jury that when a witness testifies against his own interest his testimony is entitled to greater weight than when testifying in favor of himself. Interest of a witness may be taken into consideration by the jury in judging of the witness’ credibility.</p> <p>2. Heirs not incompetent as witnesses. — In a proceeding by an administrator to establish a personal claim against his intestate’s estate, the heirs of the intestate are not incompetent as witnesses.</p>

<p>Error to the Circuit Court of Madison county; the Hon. W. H. Snyder, Judge, presiding.</p>

<p>Malicious prosecution — No presumption oe malice. — In this action . malice is not a legal presumption from the want of probable cause. It is for the jury to find from the facts proven, when there was probable cause, whether there was malice or not. The defendant may not be able to show probable cause, but he may be able to rebut any presumption of malice.</p>

<p>Contract for services — Member of family. — Where the testimony shows that one party lived with another, as a member of his family, and the evidence fails to show an agreement or promise on the part of the latter to pay for services rendered, there can be no recovery for such services.</p>

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

<p>Appeal from the Circuit Court of ¿Jersey county; the Hon. J. J. Phillips, Judge, presiding.</p>

<p>Practice — Failure to rilé bribes. — Upon a failure of defendant in error to file briefs in time, the judgment will be reversed proforma.</p>

<p>Error to the Circuit Court of Wabash county; the Hon. T. B. Tanner, Judge, presiding.</p>

<p>Dismissal of appeal on call, with procedendo — Plaintiff must prove ins case.- — On an appeal from a justice of the peace, the trial in the circuit court should proceed de novo; and it is error to dismiss an appeal on call for want of prosecution, without proof by plaintiff of a cause of action.</p>

<p>Master and servant — Defective machinery. — While the master must use ordinary care in providing suitable and lit appliances and structures for the use of his servants, he is not bound to provide against the danger arising from an unnecessary use of such appliances and structures for purposes to which the same are not adapted. Neither is he responsible for injuries resulting from the risks ordinarily incident to the service.</p>

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

<p>Evidence insufficient. — The Court is of the opinion that the evidence is insufficient to sustain the allegation of fraud.</p>

<p>Appeal — Freehold.—This case involving the question of freehold, this court cannot taire jurisdiction on appeal or writ of error.</p>

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

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

<p>1. Mortgage — Election to declare whole sum due — Notice.— Where a mortgage provided that upon a failure for six months to pay any installment of interest, the whole sum should, at the option of the legal holder, become due and payable, no notice of the election of the holder to declare the whole sum due, is necessary before bringing suit. The mortgagor and those holding under him are bound to know that the mortgagee had reserved this right, and that such right was liable to be exercised whenever a default should be made.</p> <p>2. Personal decree — Not against heirs of grantee of equity of redemption. — The court erred in rendering a personal decree against the defendants who were heirs of -the grantee of the equity of redemption in the mortgaged premises. They had not executed the note or mortgage, and were not in any manner indebted to the complainant.</p>

<p>1. Joist ahd several sote — Actios ufoh. — In an action upon a joint and several note, the plaintiff must proceed against all jointly or each separately.</p> <p>2. Surety — Plea of discharge. — A plea by one that himself and a co-defendant signed the note as sureties only, and that the payee extended the time of payment without their knowledge or consent, in consideration that another person sign the note, whereby they were discharged, etc., is not a personal plea, so as to form an exception to the rule that where several are sued jointly the judgment must be against all who were served with process or appeared to the action.</p> <p>3. Note — Adding new surety — Misjoinder oe parties. — Where the payee of a note extended the time of payment in consideration of a third person signing as surety, a judgment against such person jointly with other sureties who signed at the time the note was executed, is erroneous. The act by which the last surety became liable, released the former sureties from their liability- They were never jointly liable, and were improperly joined in the action.</p>

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

<p>Appeal from the Circuit Court of Adams county; the Hon. J. H. Williams, Judge, presiding.</p>

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

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

<p>1. Statute of limitations — When begins to run — Contract to sell land. — Where parties entered into a written contract for the purchase and sale of land, and the purchaser having paid the purchase money, the seller conveyed the land to another, the right of action by the purchaser for damages accrued upon the conveyance by the seller to a third person, and the statute begins to run from that time.</p> <p>2. Action on written contract. — In a suit declaring specially upon a written contract for the conveyance of land, and seeking damages for a breach of contract, the limitation of the statute is sixteen years. In such action, the plaintiff may claim the purchase money, or less, or may claim the value of the land at the time of conveyance, and the mere averment that the 'defendant became liable to pay the amount paid by the purchaser does not change the nature of the cause of action so as to allow the interposition of the statutory bar of five years’ limitation.</p>

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

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

<p>Jurisdiction — Freehold.—This case involving the question of freehold, the court has no jurisdiction to hear the appeal.</p>

<p>Appeal from the Circuit Court of Tazewell county; the lion. N. M. Laws, Judge, presiding..</p>

<p>Appeal from, the Circuit Court of Greene county; the Hon. A. G. Bubb, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. H. M. Laws, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Pike county; the Hou. S. P. Siiope, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. W. R Welch, Judge, presiding.</p>

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

<p>1. Replevin bond — Suit on. — A judgment for defendant in the replevin suit constitutes a breach of the replevin bond, and when admitted in evidence is conclusive of a right to recover upon the bond, saving the right of the plaintiff in replevin to prove his title to the property in mitigation of damages.</p> <p>2. Ownership of property shown in mitigation of damages.— The crops growing on mortgaged land are covered by the mortgage, whether planted before or after its execution, until they are severed, and the Hen of the mortgagee attaches as well to the crops as to the land. The recording of such mortgage is notice to all subsequent purchasers, and proof of ownership derived from a sale under such mortgage by the plaintiff in replevin, shows good title to the property as against a purchaser at constable’s sale of such crops, levied upon under an execution against the mortgagor.</p>

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

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

<p>Appeal from the Circuit Court of Douglas county; the Hon. Oliver L. Davis, Judge, presiding.</p>

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

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

<p>1. Pbomissoby bote — Release oe subety. — Judgment was obtained by the holder of a promissory note, against the principals and surety on such note, and execution issued and levied upon property supposed to belong to the principals. There being doubt as to the ownership of the property levied upon, the levy was released. Held, that if the property levied upon in fact belonged to the principal makers of the note, the release of the levy operated as a discharge of the surety from liability.</p> <p>2. Bailment ob sale. — A stipulation that the bailee may sell the thing bailed, destroys the character of the transaction as a bailment. It is a sale, and the title to the property is changed thereby.</p> <p>3. Fbatxdulent sale. — A bill of sale of goods given to a vendee, and a contemporaneous agreement given by him to the vendors, that upon the repayment of the selling price with interest, he would re-eonvey the property to the vendors, is fraudulent and void as to creditors and subsequent purchasers, and the property sold may be levied upon as the property of the vendors.</p> <p>4. Execution — Parties.—An execution, as to parties, must follow the judgment upon which it is based. So, where judgment was against the principals and surety jointly, the execution must, on its face, be against the same parties, notwithstanding the fact that the surety may have been discharged from liability by facts occurring subsequent to the judgment.</p>

<p>I. Action upon penal bond — Premature suit. — A bond was given by a trustee, conditioned that he would hold the trust fund for appellant and her sister, the interest payable to their mother, until the death of their mother, when the fund was to be divided and paid to appellant and her sister, the oestuis qite trust. The mother is still living, but had assigned her interest, to appellant before suit brought. The trustee became insolvent and unable to pay over the trust fund, and upon his death left no estate from which it could be recovered. Held, that so long as the mother continued entitled to the interest, and the trustee was guilty of no breach of trust, there was no right of action by appellant until the death of the mother; but the embezzlement of the fund by the trustee, his subsequent insolvency and death, gave the obligee an immediate right of action upon the bond, and she need not wait until the death of the mother.</p> <p>2. Impossibility of performance. — Where a person agrees to do an act by a certain time, and before that time arrives does something which renders it impossible for him to perform the act, an action may be brought before the time for performance arrives.</p> <p>3. Compensation of trustee — Vested interest. — The right of the trustee to retain a certain per cent, of the trust fund as compensation for his services, gives him no vested interest in the fund which will entitle him or his representatives to retain the fund after a breach of the bond.</p> <p>4. Practice — Parties.—A court of law will not inquire whether a plaintiff sues for himself or as trustee for another; it is sufficient if he has the legal interest in the subject-matter of the suit.</p>

<p>1. Sep abate maintenance. — To authorize a decree for separate maintenance for causes other than those for which a divorce will be granted, it ought at least, to be proved that there was reasonable danger of personal violence to complainant, or apersistent, unjustifiable course of conduct on the part of the husband, which would necessarily render the wife miserable if she con-tinned to remain with him. In this case the evidence fails to show a sufficient cause to support a decree for separate maintenance.</p> <p>2. A decree upon a bill for divorce, and separate maintenance, dismissing the bill for divorce, and entering a decree for separate maintenance is a final decree. It fixes the status of husband and wife.</p>

<p>1. Statute op limitations. — This was an action begun in 1878, for money loaned and goods sold in 1861, and money borrowed in 1867. The daim was barred by the Statute of Limitations, and the courtis of opinion the evidence fails to show a promise sufficient to remove the statutory bar.</p> <p>2. Acknowledgment op debt. — An acknowledgment of indebtedness made to a third person is not sufficient to take the case out of the Statute of Limitations.</p> <p>3. New promise. — A mere statement by the debtor that he wanted to settle, coupled with a request to know the amount of his indebtedness, without an adjustment and settlement of the account, comes far short of such a promise or acknowledgment as will take the case out of the bar of the statute.</p>

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

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

<p>Justice op the peace — Coxtistjaitce.—'Where, in a suit before a justice, the defendant did not appear, but an attorney appeared for him and asked a continuance for thirty days for the purpose of taking- a deposition, and the justice without consent of the plaintiff continued the case for thirty-three days, the'act of the justice operated as a discontinuance; the justice lost jurisdiction, and the judgment rendered in the case was void.</p>

<p>1. Contract — Service as member of family. — It appearing that appellee lived in appellant’s family as a member of it, making it her home; in the absence of any express contract, she is not entitled to pay for labor performed in conducting the household affairs.</p> <p>2. Conduct of .turor. — The conduct of„a juror in tailring to the witnesses about the case, after he had been sworn, and before verdict, is very culpable.</p>

<p>1. Mechanic’s lien — Contract—Time oe completion. — Where a written contract for repairs upon a building- is express as to some of its te'rms, but silent as to the time when the work is to be completed, it is a contract partly express and partly implied, and under it the party performing the work .may have a lien in accordance with the statute. In such cases the work must be done and materials furnished within one year.</p> <p>2. Practice in chancery. — It is error to decree a default against a defendant in chancery when his answer is on file in the cause.</p>

<p>Error to the Circuit Court of LaSalle county; The Hon. Francis Goodspeed, Judge, presiding.</p>

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

<p>1. Homestead — Absconding husband. — The right of the wife to a homestead under the statute is not forfeited by reason of the husband having absconded.</p> <p>2. Forfeiture by fraud. — Neither fraud nor even the commission of a criminal offense can work a forfeiture, or release of the homestead right. Such release or forfeiture, can only be accomplished in the manner provided by statute.</p> <p>3. Abandonment of family. — The fact that the husband has absconded from the State, and left his family to take care of themselves, is an abandonment within the meaning of the law relating to homestead exemptions, and it makes no difference what the motive for such abandonment was, whether fear of criminal prosecution, or dissatisfaction with his family.</p> <p>4. Homestead right in mortgaged premises. — Where land is pm-chased subject to a pre-existing incumbrance, the homestead right of the purchaser is contingent upon the payment of the incumbrance; but the right attaches as to all the world, except those claiming under the incumbrance, and if the land be sold to satisfy such incumbrance, and the sum realized is more than enough to pay the debt, the homestead right to the extent of $1,000, mil attach to the excess in preference to all other claims.</p> <p>5. Homestead may be taken in money. — Under our statute, relating to homesteads, the homestead right is an estate, and when the land is sold under a pre-existing mortgage, the homestead exemption will attach to the money arising from such sale, as to any excess above the amount required to satisfy the mortgage debt.</p> <p>6. Collector of taxes — Bond—Lien upon real estate. — The statute makes the bond of the county treasurer a lien upon all his real estate. Where a county treasurer, who owned land incumbered by a mortgage, proved a defaulter, and absconded, and his land was sold under the mortgage for a sum greater than the mortgage debt, held, that the lien of his official bond attached to the proceeds of such sale in preference to all claims of his creditors, except the mortgage debt and the homestead right.</p> <p>7. Garnishment — Interpleader—Judgment against garnishee before judgment againbt debtor. — Where the land of a defaulting county treasurer was sold under a mortgage, and the proceeds of the sale exceeded the amount of the mortgage debt and homestead right, leaving still a balance in the hands of the trustee, and in garnishment proceedings ag’ainst the trustee by the general creditors of such treasurer, the proper town and school authorities interpleaded, claiming a lien upon such money for taxes collected and not paid over, held, that the statutory lien attached to the money, and that it was not necessary that judgment should first be obtained against the defaulting treasurer, as in garnishment proceedings. The inter-pleaders claim the money, not by virtue of garnishment proceedings, but by an independent proceeding.</p>

<p>1. Tenancy — Holding over. — All contracts of leasing, as w§ll as other contracts, expire by their own limitation. It requires no notice from either party to terminate them. So, where one hired of another the privilege of pasture for the year 1876, the contract terminated by its own terms, and no notice was necessary that he would not want it for the next year. Unless the tenant intended to use the pasture for another year, and the landlord acquiesced in such use, there could be no holding over.</p> <p>2. Lands held in common. — Where lands owned by several were inclosed in a common field, and one of the tenants hired of another his right of pasture in the common field for a year, but on the following year put into the common field only his own proportion of cattle, to which he was entitled as common owner with the others, there is no implied holding over under the former tenancy. The lease expired by its own limitation.</p> <p>3. Instructions. — Instructions must be based on the evidence.</p> <p>4. Admission oe Indebtedness. — If the admission of indebtedness by defendant, testified to by plaintiff’s witnesses, had reference to another matter, and not to the subject-matter of this suit, he would not be liable in this action, and the jury should have been so instructed.</p>

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

<p>Contract of sale — Breach—Measure of damages. — The measure of damages for a failure by the vendee to receive personal property sold, is the difference between the contract price and the fair market value of the property at the time and place of delivery. The vendor, upon a failure of the vendee to take the property, cannot keep it to await a rise in the market, and charge the vendee with the expense of such keeping, if at the time of delivery there is a market price and sale for the commodity.</p>

<p>1. Chattel mortgage — Taking possession under. — Such acts in taking possession of personal property under a chattel mortgage, as will, under a writ of attachment or execution, make a valid levy, will be a sufficient seizure under the mortgage.</p> <p>2. Levy — Manual caption. — It is not necessary, to constitute a valid levy, that the officer should remove the property or touch it. It is enough that having the property in view and where he can control it, he does assume dominion over it, with the expressed purpose of holding under the writ.</p> <p>3. A'i r< • t;NEY NOT liable for acts of custodian. — Where an attorney, heir,:; <!'>' jiedby a mortgagee to take possession of property under a chattel >vlv,age, goes with an officer to the stable where the property is, and the «'nicer takes possession of it, and the stable is then leased from the mortgagor, and a custodian selected by the mortgagee is placed in charge of the property, the attorney has done all that is necessary to constitute a sufficient taking possession of the property, and he is not liable for the subsequent neglect of the custodian in permitting the property to be seized under an execution.</p>

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

<p>Error to the Circuit Court of Jo Daviess county; the Hon. Joils' Y. Eustace, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Franklin BlAdes, Judge, presiding.</p>

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

<p>1. Criminal law — Grand jurors must be sworn. — To sustain a conviction for a crime it is essential that the record show affirmatively that the grand jurors were sworn. No inference that the jurors were sworn can he drawn from the use of the word “empaneled” in the record.</p> <p>2. Recitals in indictment. — The indictment must appear in its recitals to have been found upon the oaths of the grand jurors, but this requirement was not intended as record evidence that the grand jury was properly empaneled and sworn, and such recitals cannot-supply the want of a record in essential matters.</p>

<p>1. Sidewalks — Negligence—Want of bepaib. — Before a liability can attach to a city in consequence of injuries received through defects in a sidewalk by reason of not being kept in repair, the city must have had actual notice of its condition, or the defect must have existed for such a length of time that the city could, by the exercise of reasonable care and diligence, have discovered and remedied the defect.</p> <p>2. Expbess notice. — An instruction that express notice to the city of such defect must he proved, is erroneous. Notice is implied by law, where by rea.sonable diligence the city might have ascertained the condition of the sidewalk and repaired it.</p> <p>3. CONTBIBUTOBY NEGLIGENCE — QUESTION FOB THE JUEY. — An instruction which usurped the province of the jury, upon the question whether the plaintiff was in the exercise of ordinary care at the time of the accident, was properly refused.</p> <p>4. Cabe in becovebing fbom injuby. — The question whether a plaintiff used ordinary care, under all the circumstances, to properly treat and care for himself after the injury, may with great propriety he left to the jury, and if they should find the pain and suffering endured by him had been aggravated by his want of ordinary care in being restored, he should not he allowed to recover damages for any additional pain occasioned by his own negligence.</p>

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

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Jo siaii MoRoberts, Judge, presiding.</p>

<p>1. Practice — Replication.—To a replication to a plea of set-off, the defendant interposed a demurrer, and on its being overruled, elected to stand by his demurrer. The effect of overruling a demurrer to a replication would he to sustain the replication as a complete answer to the plea, and the defendant abiding by his demurrer, thereby put his plea of set-off out of the record, so far as his deriving any benefit therefrom.</p> <p>2. Giving judgment note — Waiver of set-off. — The execution of a note with cognovit after the causes of action alleged in the plea of sot-off had accrued, is a waiver of the right to interpose them as a set-off to the note.</p>

<p>1. Malicious prosecution — Probable cause. — In order to maintain this action, the plaintiff must show affirmatively that the defendant instituted the prosecution without prohable cause.</p> <p>2. Malice. — It is also incumbent upon the plaintiff to show malice on the part of the defendant. Malice is not a legal presumption firom want of probable cause ; but is a question for the jury to find from the facts proven. So long as all the evidence in the case is consistent with good faith on the part of the defendant, malice can not he said to be fairly proved.</p> <p>3. Must show determination of the prosecution. — It is also incumbent upon the plaintiff to show that the prosecution has been legally determined in his favor; and the averments in the declaration as to the particular manner in which the prosecution was terminated must he proved as alleged.</p> <p>4. Evidence. — Justices of the peace are required by law to keep a record of their proceedings and judgments, and such judgments can not he proved by secondary evidence without first showing the loss or destruction of the record.</p> <p>5. Proof of acquittal— Evidence from the record. — In actions for malicious prosecution where the plaintiff, alleges a determination of the prosecution in his favor by his discharge upon the hearing before the justice, proof of such averments must be made by the record, and if for any cause the court is compelled to reject the offered record, under the rules of evidence, the plaintiff cannot supply its place by oral testimony.</p>

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

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

<p>Error to the Circuit Court of Kane county; the Hon. H. H. Cody, Judge, presiding.</p>

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

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

<p>Appeal from the Circuit Court of Iroquois countythe Hon. Franklin Blades, Judge, presiding.</p>

<p>Error to the Circuit Court of Kendall county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>Appeal — Fbeehold.—The question of freehold being involved, this court has no jurisdiction of the appeal.</p>

<p>Error to the Circuit Court of Mercer county; the Hon. Geo. W. Pleasants, Judge, presiding.</p>

<p>Error to the Circuit Court of Kankakee county; the Hon.</p> <p>Franklin Blades, Judge, presiding.</p>

<p>Certiorari — Sufficiency of petition.— A petition for certiorari showed that after plaintiffs had begun their suit in replevin, they agreed with defendants to permit the goods to remain as they were for a short time, which was tantamount to an agreement not to proceed with their suit. In violation of this agreement and without notice or knowledge of the defendants the plaintiffs prosecuted their suit to a judgment in trover, and the twenty days allowed for an appeal expired before the defendants had knowledge that a judgment had been rendered. Held, a sufficient allegation to support a writ of certiorari.</p>

<p>Iusteuctions — Should be accurate. — Where there is a serious conflict in the evidence, one witness beiny directly opposed to the other, an instruction touching the question of their credibility should state the law with accuracy and correctness.</p>

<p>Contracts — Agency.—Appellee traded on the Board through appellants, as his brokers, giving his orders through one W. Being pressed by appellants for more margins, and making no reply, they by order of W. changed the deal from September to November oats, and then sold out at a loss, and brought suit against appellee to recover for such loss. The court is of opinion that the facts fail to show authority from appellee to W. to direct the change in the deal, and consequently appellee was not liable for the loss.</p>

<p>1. Attachment — Htjst be a valid levy. — Proceedings by attachment derive their validity wholly from the statute,which in all essential particulars must be complied with. A valid levy upon pxoperiy by the writ of attachment is essential to the jurisdiction of the coart over the subject-matter.</p> <p>2. Property must be in view oe the attaching officer. — In order to a valid levy of a writ of attachment, the property must be in view of the attaching officer. An indorsement of a levy, made when the property is miles . away from the officer making the levy, is a nullity.</p> <p>3. Irregular levy — Not aided by placing custodian over property. — Where an officer served a writ of attachment by indorsing a levy upon the writ, the property not being in the presence of the officer, the fact that the officer, two days after such levy, saw the property in the charge of a custodian whom he had placed over the property, will not aid the defect in the levy made by such indorsement.</p> <p>4. Trespass ab initio. — Where a levy of an attachment writ is made in an illegal or unauthorized manner, the sheriff and plaintiffs in attachment are liable as trespassers ab initio for any subsequent disposition they may make of the property siezed under the attachment proceedings.</p>

<p>1. Creditor’s bill — Answer not traversable, when. — Although a creditor’s hill, filed pursuant to the statute, is a bill for relief as well as discovery, the relief is dependent upon the discovery. Where the answer discloses assets, a court of equity may apply such assets to the payment of the judgment; but where the answer not only fails to disclose assets, but denies them possession, the allegations of the answer cannot he traversed, and the court proceed to try such traverse, and grant relief in case the defendant is found in possession of assets.</p> <p>2. Fraud as an element of chancery jurisdiction. — Where a hill supplemental to an execution is filed for the purpose of setting aside a fraudulent conveyance, a court of chancery obtains jurisdiction on the ground of fraud; hut where the defendants are not charged with fraud, and their answers deny any liability, a court of chancery can proceed no farther against them.</p> <p>3. Waiver op objection to jurisdiction. — In this case, the fact that defendants answered the hill without objecting to the jurisdiction of the court, has no bearing upon the question of them rights. It is a question of want of equity rather than jurisdiction. The object of the bill was to obtain a discovery; and when by the answer the discovery failed, the court should have dismissed the bill for want of equity.</p> <p>4. When objection to jurisdiction is waived by answer. — The rule that if a defendant in chancery submits to answer without challenging the jurisdiction, it is too late to raise the objection, is to be taken subject to some qualifications. Where it is competent for the court to grant the relief and it has jurisdiction of the subject-matter, the rule applies, but it will not apply where the jurisdiction of the court is dependent, as in this case, upon a discovery, and the discovery fails.</p>

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

<p>1. Setting aside tax sale — Burden of proof. — In a proceeding to set aside a tax sale and for the cancellation of certificates of such sale, on the ground of a levy for an illegal purpose, the burden of proof is upon the complainant to sustain the allegation of an illegal levy.</p> <p>2. Evidence — Sufficiency.—Where the only proof in support of the allegations in the hill that the levy was for an illegal purpose, was a transcript of the proceedings in comity court upon judgment for delinquent taxes, and a copy of an opinion of the Supreme Court in a case between other parties, relating to the same levy, the evidence is not sufficient to sustain the averments of the bill.</p> <p>8. Transcript of proceedings in county court. — The judgment of the county court in this case, had in proceedings for judgment for delinquent taxes, does not find that any of the illegal items complained of were included in the city tax; and the judgment appears to have been entered without appearance or objection by the complainants. Objections to the tax, made in such proceedings by others, cannot avail the complainants'as proof of the averments in their bill.</p> <p>4. Opinion of Supreme Court — Statement of facts. — A statement of facts in an opinion of the Supreme Court, made in a case between other parties, if it can in any view he regarded as an adjudication upon matters of fact, is not binding upon the parties in this case.</p> <p>5. Opinion of Supreme Court not a judgment. — An opinion filed by a court upon the decision of any question pending upon it, is not a judgment, and becomes no part of the record; but is merely a statement or discussion of the grounds or principles upon which the judgment of the court is based.</p> <p>6. Recital of facts in a decree. — Recitals in a decree constitute one of the recognized modes of preserving the evidence in chancery cases. Where, however, there is a certificate of evidence purporting to contain all the evidence, that alone will be regarded upon appeal, in considering the evidence in the case.</p>

<p>Error to the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.</p>

<p>Continuance — Sufficiency of affidavit. — Where an affidavit disclosed what the affiant expected to prove by the absent witness; that he knew of no other witness by whom the same facts could be proved; that the witness, unknown to affiant, had recently removed to California, and that immediately upon learning of such removal, affiant had made diligent search to learn his whereabouts, and that ho expected to be able to obtain the deposition of such-witness before another term of the court, it was error to refuse a continuance of the cause.</p>

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

<p>1. Condemning land fob parks — When title vests — Right to _ condemnation monbt. — In proceedings to condemn land for public use, the party seeking condemnation acquires no vested title in the land until possession is taken and the land appropriated to the use for which it was condemned, and payment of the damages; and the land-holder acquires no vested right to the condemnation money until possession is taken by the other, and hence can maintain no action therefor before that time.</p> <p>2. Right to ¡relinquish land condemned. — The board of park commissioners in condemning land for park purposes, may abandon condemnation proceedings at any time before taking possession of the land. The assessment of damages and confirmation by the court does not invest them with title to the land.</p> <p>8. Interest on condemnation money. — The rights of the land-owner and party seeking condemnation being correlative, and the change of title being dependent upon payment of the condemnation money, it follows that no interest can be collected for failure to pay condemnation money, for until its payment the land-owner had no vested right therein and could maintain no action therefor.</p>

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

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

<p>1. Condemnation oe property to public use — Estate of tenant for years. — The estate of a tenant for years is liable to he taken by the public by virtue of the right of eminent domain, upon precisely the same terms upon which any other estate in lands may be taken, viz: compensation by the public for the property taken.</p> <p>2. Compensation — To whom paid — The compensation for which the public is liable in condemning land, must go to those who are entitled to the property itself, in proportion to their "several interests.</p> <p>3. Tenant liable for entire rent.- — Where land held by a tenant under a lease for a term of years, is taken by condemnation to public use, the tenant remains liable to his landlord for the entire rent,_according to the terms of his lease.</p> <p>4. Condemnation does not extinguish lease. — As between landlord and tenant, the condemnation of land doe's not operate as an extinguishment in whole or in part of the lease.</p> <p>5. Apportionment of compensation. — A tenant is entitled to receive from the public full compensation for so much of his leasehold estate as is appropriated to the public use. And the compensation to be awarded to the landlord should be diminished by reason of the existence of the leasehold estate only by such an amount as the evidence shows that the actual rental value of the premises exceeds the rent reserved.</p> <p>6. Right of public to bequibe appobtionment of damages. — The damages awarded the landlord and tenant respectively, are the results of independent assessments; and because the aggregate assessment may exceed the entire value of the property taken, the public power seeking the condemnation has such an interest therein that it may insist upon a proper apportionment of damages between landlord and tenant.</p> <p>7. Good-will in business as an element of damage. — Whether a tenant would he entitled to damages for loss of good-will in his business, is not decided. If the jury were of opinion that the evidence established any damages of that character, they might, possibly, have assessed them in a separate item, but evidence of such damages cannot be resorted to in support of a general assessment of damages for other items of property taken.</p>

<p>1. Practice in chancery — Appeal from order dismissing cross-bill. — Whether an order dismissing a cross-bill is merely interlocutory, or is such a final order as may be appealed from, is not decided; but in this case the dismissal of the cross-bill being followed by the dismissal by the complainant of the original bill, from which order also an appeal was taken, the latter appeal brings up the whole record, and enables appellants to assign for error the order dismissing the cross-bill.</p> <p>2. Cross-bill. — Whenever, in chancery, it becomes necessary to bring all the rights of all parties fully before the court, so that complete equity may be done, as well to the defendants as the complainants, resort must be had to a cross-bill.</p> <p>3. Y,then defendant ektitded to affirmative relief. — The original bill in this cause sought to subject to the payment of complainant’s debt, certain land for which it was claimed had been fraudulently conveyed to the defendant. The cross-bill denied the fraud, alleged that the laud was conveyed to her as security for a bona fi.lo dibfc, and that complainant’s debt was already amply secured by a mortgage upon other land. Although a decree dismissing the original bill would be a bar to any further attempt to attack the defendant’s title, yet the equity of redemption of the mortgagor in the land held by her would have subsisted unaffected by decree, and she, as holder of the paramount lien, had an equitable right to have this equity of redemption extinguished by foreclosure, and this was a matter of affirmative relief which she could obtain only by a cross-bill.</p> <p>4. Cross-bill must relate to subject-matter oe the original bill. — While the allegations of the cross-bill must relate to the subject matter in controversy in the original bill, they are not restricted to the issues in the original cause. In this case the subject-matter of the original bill, so far as relates to appellant, being an attack upon her rights in the land in question, it is no departure from the case, for her, in turn, to seek to have her title ascertained and declared.</p> <p>5. Vacating judgment at law, by cross-bill. — As to the other defendant, the original bill sought to enforce against his property certain judgments entered against him by confession. His cross-bill alleged that said judgments were obtained without jurisdiction, and prayed that said judgments might be declared void and vacated. The relief here sought was certainly germane to the original bill.</p> <p>6. Remedy at law — Void judgment. — A judgment rendered without jurisdiction is void, and may be attacked collaterally, in any proceeding in which its validity may be called in question. This principle is in no way affected by the fact that the defendant has a right to have such judgment reversed on appeal or error. It is clearly within the jurisdiction of courts of equity to enjoin or vacate such judgments.</p> <p>7. Practice on reversing a decree. — By statute, a complainant has no right, except by consent, to dismiss Ms bill, after the filing of a erossr bill and the demurrers to the cross-bills in this case having been improperly sustained, upon reversal of that order in tMs court the parties are remitted to the same position they were in when the errors were committed. The cross-bills being sufficient and proper, the complainant had no right to dismiss its original bill, and that order of dismissal will, therefore, be set aside.</p>

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

<p>JuniSMCTioir — Rkeehold.—Where a bill in chancery is filed, alleging that shortly before complainant obtained the judgment therein mentioned, the defendant was the owner of certain land, but that he had convoyed the same for the purpose of defrauding complainant, the question of freehold is involved, and the Appellate Court has no jurisdiction.</p>

<p>1. Contract — Verdict against evidence. — The action was for failure to comply with the terms of a contract entered into between plaintiff and defendant. Although the testimony of the witnesses, while tending to disprove the modified contract, as claimed by the plaintiff, may not be sufficient to warrant the court insetting aside the verdict, yet, the surrounding circumstances, the acts of the parties and their correspondence regarding the business, tends strongly to show that no such contract as claimed by plaintiff, was made.</p> <p>2. Modification of contract. — The plaintiff claimed damages for a failure to send to him a certain number of sewing machines per week, according to the terms of a modification of a certain contract. Held, that even conceding that the original contract was modified, as claimed by plaintiff (about which there was a dispute), yet the terms of the original contract, except as modified, remained the same, and one of these being that machines should be sold for cash and remittances promptly made, and the plaintiff failing to remit promptly, the defendants was not under obligation to send machines according to the alleged modified agreement.</p>

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

<p>1. Jurisdiction on appeal. — Since the act of 1879 "regulating appeals and writs of error, this court has no jurisdiction on appeal or writ of error in cases where the question of a freehold is directly involved.</p> <p>2. Freehold — Meaning, as applied to jurisdiction.' — In a proceeding for partition of a tract of land held by several as tenants in common, the parties claiming to hold their undivided portions in fee, the question of a freehold is directly involved within the meaning of the statute relating to the jurisdiction of the Appellate Court.</p>

<p>Divorce — Amatory after re-marriage. — The fact that a divorced wife has re-married, it being shown that her husband by re-marriage is unable to support her, is no ground for entering a decree relieving the former husband from payment of alimony; nor is it a sufficient reason for entering an order reducing the alimony to a mere nominal sum.</p>

<p>Error to the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.</p>

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

<p>1. Bond fob appeal — Construction of. — A bond given oil appeal to an appellate court is to be regarded as a mere security for the payment of the judgment, and whatever discharges the judgment discharges also the liability of the obligors on the bond.</p> <p>2. Failure to prosecute appeal — Damages on bond — Discharge of judgment. — Appellant sued for the amount of the judgment and costs expressed in an appeal bond to the Appellate Court, alleging a breach of the bond by reason of a failure to prosecuto the appeal. Ho damages were assessed in Appellate Court upon dismissal of the appeal; the costs of appeal bad been paid, and appellees pleaded that the judgment had been reversed in another proceeding. Held, a complete defense to all except nominal damages. Held, further, that this suit having been commenced before the reversal of such judgment, appellant was entitled to nominal damages, and no more.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.</p>

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

<p>1. Justice op the peace — Attachment.—A justice of the peace is invested with jurisdiction in attachment only by virtue of the statute, and such jurisdiction can he exercised only in the manner pointed out in the statute. So, where in attachment, the defendant not being served nor appearing in the cause, the justice continued the cause for fourteen days only, the judgment was void.</p> <p>2. Right op action against justice. — If an officer having a limited authority, do an act beyond his authority, trespass will lie against him; but if the act, though erroneous, ho done within the limit of his authority, he will ' be protected.</p>

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

<p>1. Oohtbact fob SEBvicB — Weoboful disciiaeoe.— An employe wrongfully discharged by bis employer, cannot wait till the expiration of the term for which he was hired, and then sue for his whole wages on the ground of constructive service. His remedy in such cases is an action to recover such damages as he has sustained by reason of the breach of the contract of hiring.</p> <p>2. Cobstbuctivb sebvioe. — Where the contract was to pay the employe in weekly installments, and he is wrongfully discharged before the expiration of his term of service, he cannot sue and recover for the several installments as they become due, averring a readiness to perform, on the principle of a constructive service.</p> <p>3; Costtbacts — Constbitction.—A contract to serve a year at a fixed sum, the same to be paid in regular weekly installments, although a single contract, is divisible as respects the remedy; the stipulations ¡as to payment being considered as several obligations.</p>

<p>1. Landlord and tenant — Holding over. — A tenant took a lease of other premises of his landlord, to taire possession upon the expiration of his present lease, and the new premises not being ready for occupancy, the lease was surrendered. He remained in possession of the premises already occupied by him for a few days, when, upon receiving notice from Ms landlord that he was regarded as holding over, he vacated them. Held, that the holding over did not raise. an implied tenancy for another year, and that the tenant was liable only for the time he actually occupied the preniises.</p> <p>2. Practice. — Where a plaintiff wholly fails to make out a cause of action upon the evidence, he cannot assign error upon instructions.</p>

<p>Common nuisance. — Whatever obstructs travel on a public highway or navigable stream, is a common nuisance, and may be abated by any of the Mng’s subjects. So, where plaintiffs had fastened an old, disused, and nearly sunken boat to a pier in such a way as to impede the navigation of the Chicago river, the defendants, acting under the authority of the Board of Public Works, had the right to remove it as a public nuisance, if indeed they did not have the right to do so without any orders.</p>

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

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

<p>Appeal from the Circuit Court of Cook county.</p>

<p>Contract — Rescission—Quantum, meruit. — Where one of the contracting parties refuses to perform, or by his act incapacitates himself from performing on his part, such refusal or act will be equivalent to a rescission of the contract, and the other party, may if he choose, treat the contract as rescinded, and recover for services already performed, upon a quantum, meruit.</p>

<p>Appeal — Fheehold.—The Appellate Court has no jurisdiction on appeal in cases where the question of a freehold is directly involved.</p>

<p>1. Locomotives — Appliances to pee vent escape op fire. — In an action for damages alleged to have been caused by the escape of sparks from an engine, it is error to instruct the jury that the defendant must show, not only that the engine was supplied with the best and most approved applian" ces to prevent the escape of. sparks at the time of the fire in question, but also that the engine was originally so constructed. If at the time of the fire it was properly constructed and in good order, that is sufficient.</p> <p>2. Ciiampertous agreement. — Whether an agreement between the plaintiff, and his attorney, by which the latter was to pay the expense and carry on the case for a share of the amount recovered, is champertous, and if so, can be set up as a defense to plaintiff’s cause of action, the court do not decide.</p>

<p>1. Right of court to impose terms. — Where a party to a suit is in default, and to maintain his standing in court is compelled to ask for indulgence, the court, on granting his motion, may impose terms in his discretion, but the terms imposed must he reasonable and not inconsistent with the ordinary rules of law. When the discretion exercised transcends these limits, it becomes erroneous and liable to reversal in an appellate court.</p> <p>2. Rule on bail to justify — Payment of expenses in investigating title. — Where, on appeal from a justice of the peace, the appellant was ruled to present a good and sufficient surety upon his appeal bond, and after several attempts to answer the rule, during which the appellee was put to s'oane expense in investigating the responsibility of the sureties offered, the appellant was ruled to furnish sufficient surety and pay appellee §25, by a day named, it was error to order his appeal dismissed upon a failure to pay the terms imposed, it not appearing that the surety offered was insufficient. Such terms were unreasonable.</p> <p>3. Rule to furnish abstract of title. — An order to compel the appellant to furnish the appellee with an abstract of title to the property of the surely, is unreasonable.</p>

<p>1. Evidence — Justice’s docket — Interlineations.—The docket of a justice of the peace is not within the rule applicable to private writings between individuals which requires explanation of erasures and interlineations. Parol evidence is not admissible to falsify a record by showing that an alteration whereby the record is made correct, was improperly made.</p> <p>2. Presumptions in favor of docket. — Where the docket of a justice of the peace shows that the court had jurisdiction of the person and subject-matter, nothing will be intended to be out of his jurisdiction which does not affirmatively appear to he so.</p> <p>8. Impeaching judgment. — A judgment of a justice cannot he impeached collaterally except upon jurisdictional facts.</p> <p>4. Constable justifying under an execution. — Although an execution is fair upon its face, yet where a constable seeks to justify under it, as against one who was a stranger to the judgment, he must show that the execution is supported by a valid judgment.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.</p>