Volume 8 — Illinois Appellate Court Reports

<p>1. Claim on judgment against administrator not presented to county court. — Action of debt upon the official bond of a deceased administrator, against his surviving surety, suggesting a devastavit brought in a court of record, by a creditor of the estate whose claim had been adjudicated by a decree of the same court, but had never been allowed by or presented to the county court, held that such allowance was not necessary in order to maintain the action.</p> <p>2. Who a creditor. — That a person who obtains judgment on a claim against an intestate in a suit in a court of competent jurisdiction, wherein his administrator is defendant, is a creditor of such estate. ,</p> <p>3. Such creditor may bring suit. — That such creditor may’bring suit on the administrator’s bond, although his claim may never have been presented or allowed by the probate court.</p> <p>4. J udgment in due course oe ADMiNi stration. — That it is not necessary a judgment against an administrator in a court of competent jurisdiction, to be paid in due course of administration, should be presented to the probate court for allowance. Of such judgment the administrator lias notice, and he will be protected in obedience to it; and for any contemptuous disregard of the order, the court will deal with the administrator personally.</p> <p>5. Judgment against deceased person. — That a judgment against a deceased, even, is only an instrument of evidence as against the estate or the administrator, and is no warrant for an execution, except as against the real estate, after twelve months from the time of decedent’s death, and after three months’ written notice to his personal representative or heirs, as prescribed by the statute.</p>

<p>1. Statement. — John Heslet, the father of the testator, Joseph Heslet, died October 30, 1860, leaving Eliza Ann, his widow, and twelve children, including said Joseph, Mrs. Mary A. Staufer and Nancy Jenks, and a will devising his homestead to his widow for life, and directing upon her death it be sold, and the proceeds equally divided among his children. The widow survived until January 18,1878. Joseph, the testator, after his father’s death, purchased the interest of the other children, except Mrs. Staufer and Mrs. Jenks, and took from them deeds in the usual form of conveyances of real estate. He occupied the premises with his family until he died, April 24,1874, leaving Cora, his widow, and William A., his only child, and a will, giving, after the payment of his debts, to his widow $1,000 and one-third of the real estate of the homestead, to his son, Wm. A., two-thirds of his homestead estate; to his brother James, $1,000: to his sisters Rachel and Mary A., $100 each; and his interest in the Mendota property, to his sister Martha, for life, and at her death, to his brother James; to the Am. Board of F. M. $1,200; to the trustees of C. $300; and his 80 acre lot in Meriden to be disposed of at the option of his executor, and the proceeds to apply on his debts and to purchase the interest of heirs in his homestead, and any remainder to go to the maintenance, and education of his child. So much of the will as relates to the homestead not to take effect till the death of his mother.</p> <p>2. Construction oe will — Proceeds oe real estate — Devise—Legacy. — That the gifts by the will of “one-thiid of the real estate of the homestead” to the widow for life and of the two-thirds of his “homestead estate” to the child are, not devises of real estate but are specific legacies and to be paid in full.</p> <p>3. Proceeds on sale to be made regarded as money. — That what John Heslet by his will gave to his children — proceeds of sale directed to be made of land was to be regarded as money.</p> <p>4. Those entitled to proceeds might elect to hold the land. —That those entitled to the proceeds might have elected to take and hold the land as such in lieu of the proceeds, but they could do so only with the concurrence of all who were so entitled; there being no such concurrence in this case, the interest of Joseph remained in him an interest in money, and his bequests of it by the description of land could not change its real character in the hands of his legatees.</p> <p>5. Rights op the widow. — There being no devise of land or any estate therein to the widow, so as to bar her dower in lands or her share in personal estate, under the statute then in force, she was entitled, if she chose to claim "t, to one-third of all the personalty remaining after the payment of debts, and to this right all legacies must yield. That the widow did not claim any portion of the proceeds under the statute, and as this could not injuriously affect any other party it was not for the.executor or the court to interpose, as to her right, what she thus disclaimed.</p>

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

<p>Appeal from the Circuit Court of Grundy county; the lion. Josiati MoBoberts, Judge, presiding.</p>

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

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

William Brown, Judge, presiding. Bill filed by the appellee against the appellants to correct a mistake in a mortgage and for foreclosure. It is alleged that by the mistake of the scrivener one eighty-acre tract was described as being in section twenty-two, when it should have been section twenty-eight..

Albert Woodcock, Judge, presiding. The city of Polo recovered a judgment against the appellant before the police magistrate of that city, and not being satisfied therewith on the same day the magistrate rendered the judgment, prayed an appeal to the Circuit Court of Ogle county.

Geoege W. Pleasants, Judge, presiding. This was an action on the case by appellee against appellant, for injuries alleged to have been sustained by reason of a defective sidewalk.

<p>Appeal from the Circuit Court of Peoria county; the Hon. M. 1ST. Laws, Judge, presiding.</p>

Charles Kellum, Judge, presiding. Action of replevin commenced by the appellee against the appellant, as shen'ff, to recover certain goods and chattels levied upon by him by virtue of an execution issued out of the circuit court of said county, upon a judgment in favor of George W. Meacham et. al., and against the'Illinois Linen Company. A jury was waived and the cause submitted to the judge of said court upon the following stipulated facts: 1.

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

Josiah McEobebts, Judge, presiding. This action was commenced by the appellant against .the appellees, to recover damages for diverting the water of the DesPlaines river from the mill of the plaintiff. The cause was submitted to the Court, and a judgment for costs rendered against the plaintiff, and he appeals to this Court.

<p>1. Release deed — Credit by way of advancement. — Hadsell, the holder of the notes and mortgage, was an old man, without wife or child. On the day the release of the mortgage is dated, he wrote on the hack of the mortgage, “I hereby agree to allow Martha Richardson, wife of Amasa Richardson, a niece of mine, §1,200 in my will, and if her equal share should not amount to that sum, to take the amount out of the whole pile.” Held, that the §1,200 was only intended as a gift or advancement and was without any consideration and could not he placed as a credit on the note and mortgage.</p> <p>2. Consideration ot deed — When it may be inquired into. — That the considerate n of a deed for the conveyance of real estate may be inquired into for all purposes, collateral or between the parties to the deed, except to show that there was no consideration to support it, but this cannot be inquired into. The recitals are conclusive on this point. The consideration expressed in a deed may be contradicted and explained by parol evidence, and especially would it be so when it is sought to apply that consideration to the satisfaction of the mortgage as to the other portion of the land not released as in this case.</p> <p>3. Delivery of deed. — That where a grantor places a deed in the hands of a stranger for the grantee and no restrictions are imposed on its delivery, such an act is sufficient to give the deed full effect. Here the release was delivered to Wm. H. Richardson, the agent of Martha Richardson, with the intention to have it pass the title at once to Levi A. without any condition coupled with its delivery. The delivery was complete.</p>

Arthur A. Smith, Judge, presiding. The plaintiffs in error with one William Logg, were indicted at the October term, 1877, of the Knox Circuit Court for riot. The first count of the indictment charged that the defendants having a common cause of quarrel, unlawfully assembled with intent to, and of assaulting one Amos Means. The second count charged an assault upon Martin Lowry and Amos Means, and the third count an assault upon one James S. Hallett.

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

<p>Promissory note — Consideration.—The defendant owned a farm three miles from the Savanna road, and from his farm to said highway the outlet was by the strip of forty feet hereafter mentioned. Robinson sold his farm to one Eddy, but before the deeds were delivered, learning that the legal existence of the road from the farm to the highway was disputed by those whose land it went over, refused to complete the purchase unless Robinson would obtain releases from the owners of the land.' Robinson obtained a release of the right of way for which he gave his note: Held, there being a question about the legal existence of the road, in the absence of fraud or mistake, the release was a sufficient consideration for the note.</p>

<p>1. Arbitration — Misconduct of arbitrator. — That it was misconduct on the part of an arbitrator to listen after he was chosen to any statement by anybody except in the way of testimony regularly delivered in relation to any matter to be submitted.</p> <p>2. Duty of arbitrator. — That it is the duty of an arbitrator as of a juror or judge, to keep himself, as far as possible, free from any influence that would tend to impair his impartiality, or expose him to suspicion or prejudice.</p> <p>3. Misconduct of arbitrator. — That the effect of misconduct of an arbitrator upon an award may not be the same as that of a juror upon a verdict, for several reasons he is voluntarily selected by the ’parties to the controversy, who are therefore estopped to complain of prejudice previously and honestly imbibed without fraud of the adverse party, and then a larger interval of time usually occurs between Ms selection and his service, subjecting him to greater exposure. He is not specially advised of Ms duty and restrained in Ms conduct by the direction and authority of a court.</p> <p>4. Whebb unanimity not beqtjibed. — That where the submission does not require unanimity in the award, misconduct of one of a kind or degree — which, if a majority participated in or were affected by it — would vitiate the award, may not so operate if the misconduct and its effect are confined to one.</p> <p>5. CONVEBSATION WITH THIED PABTY — SETTING ASIDE AWABD. — That a conversation with one arbitrator with a third party upon the matters submitted, not shown to have been produced by a party to the submission, nor to have been sought by the arbitrator, to have had the effect to prejudice him, or to have influenced the action of the other arbitrators composing a majority having power to determine the question submitted, will not be sufficient to justify the setting aside of the award.</p> <p>6. Eveby intendment in EAVOB oe aWabd. — That in the absence of affirmative proof of fraud, partiality or unfairness — which are never presumed — every intendment is in favor of the award.</p>

<p>Appeal from the Circuit Court of Logan county; the Hon. C. Bpt.br, Judge, presiding.</p>

<p>Practice — Service oe process — When appearance sufficient.— Where, the defendant in error appeared, entered a motion for a rule upon plaintiff in error, to file a sufficient bond, and for leave to attach a jurat to an affidavit then on file, and submitted to the judgment of the court upon such motion, it is such an appearance as brings the defendant in error into court and service of process is unnecessary.</p>

<p>1. Comparative negligence — Terms “gross” and “slight.”— The rule is that a plaintiff who has been guilty of negligence contributing in a slight degree to the injury, may recover of a defendant who has been grossly negligent; but in such case the negligence of the plaintiff must be but slight, and that of defendant gross in comparison; and both these terms “ gross ” and “ slight,” or their equivalent, should be used in every instruction that attempts to lay down the rule.</p> <p>2. Want op ordinary care. — The term “ want of ordinary care ” used in an instruction upon the rule as to comparative negligence, is not equivalent to the term “ gross negligence.”</p> <p>3. Liability oe employer to employe. — It seems that if the railroad company permitted the car in question to be run into the yard in a damaged and dangerous condition, for so many consecutive days that the company in the exercise of a high degree of care, might have known of its dangerous condition in time to avoid an injury therefrom, and that its duties in this respect were neglected, it would be liable to an employe for damage occasioned thereby, irrespective of the fact that the car was owned by another company whose duty it was to repair it.</p> <p>4. Hazardous employment — Care of employe. — An employe engaged in an employment known to be dangerous, is bound to exercise a corresponding degree of care in respect to his own personal safety.</p>

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

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

<p>1. Practice — Stipulation—Of no force on second trial. — A stipulation that a jury may he waived, and the ca,use tried by the court has no force after the trial in which such stipulation is made. When a cause is remanded from an appellate court for another trial, both parties are restored to their original right of trial by jury.</p> <p>2. Evidence — Custom or practice of physicians. — In the trial of a person for violation of the ordinance of a town prohibiting the sale of liquors, except upon a physician’s prescription, evidence of the custom of other physicians in giving prescriptions, aslo their form, is not admissible to prove or disprove the issue before the jury.</p> <p>3. Papers taken by the jury. — A written stipulation of facts read in evidence, and the ordinances of the town also read in evidence, are proper papers to he taken by the jury to their rooms, on retiring to consider their verdict.</p> <p>4. Agreed statement of facts — Admissions.—Admissions, including those made by attorneys of record, bind the parties in all matters relating to the progress of the cause; hut they must he distinct and formal, and made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial. In such cases they are generally conclusive, and may be given in evidence, even upon a new trial.</p>

<p>1. Service by publication' — Sufficiency of affidavit. — To give the court jurisdiction in chancery proceedings so that a personal decree may be rendered against an absent defendant, there should he a compliance with the statute in respect to the affidavit required. The affidavit should aver in the language of the statute that upon diligent inquiry the place of residence of the defendant could not be ascertained, or it should give such facts as will show that diligent inquiry had been made, and that upon such inquiry the defendant could not be found.</p> <p>2. Affidavits jurisdictional. — Where an affidavit of the non -residence of a defendant fails to comply with the statute, the court acquires no jurisdiction over the person of the defendant, and a decree rendered against him is void.</p>

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

<p>Road and bridge tax under act op 1879 — To whom paid. — Under the act of 1879, relating to taxation for road and bridge purposes in counties under township organization, where there is an incorporated city or village within a township, the whole tax should he paid to the treasurer of the commissioners of highways. Such city or village is not, a.s formerly, entitled to have that portion, of the tax collected within its corporate limits, paid to the treasurer of such city or village. 1</p>

<p>1. Statement. — Appellant had obtained judgments by confession against appellee, and upon sale of appellee’s property under such judgments, appellant purchased some mules and a quantity of com. Afterwards appellee sued appellant to recover the value of this property, which had been 'sold by appellant, under a pretended promise by appellant to pay to appellee the proceeds of the sale of such property.</p> <p>"J 2. Considebation. — The compromise of a doubtful right is a sufficient consideration to support a promise, but such claim of right must have some color — must be made in good faith, and not for the mere purpose of extorting money; and the promise must be made as a compromise of the conflicting rights of the parties. In this case all these elements are wanting, and there was no sufficient consideration.</p> <p>3. Instructions. — Instructions should be based upon evidence in the case.</p> <p>4. Evidence. — A witness was permitted to testify to statements made to him by appellant, that the judgments confessed were without consideration, and made to cover up appellee’s property. This evidence was not relevant to the issue, and ought not to have been admitted. It was equally improper, whether it was intended to impeach the judgments because there was nothing' due, or to show that they were fraudulent as against creditors.</p>

<p>1. Jurors — Challenge for cause — Bias against liquor seller. —Where a juror, upon his voir dire, stated that in case the evidence was equally balanced he would find against the defendant, he is not a competent juror, and it is error to refuse a challenge for cause. So, also, when the juror stated that he would not give the same weight to the testimony of one engaged in the liquor traffic, that he would to those engaged in other business.</p> <p>2. Error IN REFUSING TO SET ASIDE JUROR FOR CAUSE NOT CURED, BECAUSE life WAS AFTERWARDS CHALLENGED PEREMPTORILY. — The eiTOl" in refusing to sustain the challenge to the three jurors for cause is not affected by the fact that the defendant afterwards challenged them peremptorily. These three peremptory challenges were all he was entitled to, and in consequence he was compelled to take other jurors, who were hardly less objectionable.</p>

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

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

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

<p>Appeal from the County Court of Greene county; the Hon. L. E. Worcester, Judge, presiding.</p>

<p>1. Statement. — Appellee, as special commissioner, held notes belonging to Mrs. A. Upon the representation of her husband that he was acting as her agent, appellee delivered the notes, properly indorsed, to appellant, in part payment of land purchased of him by Mr. A. Afterwards Mr. A. repudiated the contract, and refused to accept a deed of the land, whereupon appellee demanded a return of the notes, and failing, brought trover for their conversion, against appellant.</p> <p>2. Agency. — An instruction that if Mrs. A., through her agent, ordered appellee to turn over these notes in part payment of land sold to her husband, then such order and acceptance and delivery amounted to a receiving of the notes by Mrs. A., and appellee cannot maintain this action was proper, correctly states the law, and should have been given.</p> <p>3. Statute ov Frauds. — An objection that the contract for side of the lands not being in writing was void under the statute of frauds, cannot be raised by appellant, because he was not a party to the contract. He held the notes merely as the trustee of Mrs. A.</p> <p>4. Conditional Delivery. — The promise by appellant to procure a receipt from Mrs. A. for the notes, and deliver the same to appellee, did not render the delivery conditional, so that a failure would authorize appellee to avoid the contract.</p>

<p>1. Allegations and proof must correspond. — The court finds that the contract as set out in the declaration, materially varies from that established by the evidence, and the plaintiff is not entitled to recover.</p> <p>2. Contract — Failure to perform. — Appellee contracted with appellant to serve as teacher for a year at a stipulated salary, appellant to provide her with a room. In respect to the room, appellee expressed a wish for one upon the second floor, hut appellant being unable to give her such a room, provided one upon the third floor, whereupon appellee declined to enter upon her duties as teacher. Held, that a failing to provide a room as requested by appellee, did not justify her in refusing to act as teacher, and she was not entitled to recover.</p>

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

<p>Error to the Circuit Court of Jaclcson county; the Hon-O. A. Harker, Judge, presiding.</p>

<p>1. Highways — Resekvation in deed — Amounts to dedication.— Where a grantor conveyed certain tracts of land, the deed containing a condition that the grantee should permit certain public roads then running across said lands, to remain open to the public use, such condition in the deed amounted to a dedication by the grantor of the land occupied by the roads, to the public, and thereafter he had no more interest in the same than any other person, and without alleging a special injury to himself, he could not maintain an action against the grantee for closing such roads.</p> <p>2. Obstbucting highways — Remedy.—When a public highway is obstructed in such a manner as to interfere with the public use only, and producing no special damage to any individual, the remedy is by indictment or by information in the name of The People.</p> <p>3. Pbivate eemedy. — When an individual is directly and injuriously affected he may have his remedy, and a court of equity will interfere by injunction, if necessary; but the complainant should show by his bill that he has suffered or will suffer substantial injury for which he would he entitled to recover at law.</p> <p>4. Peeliminaby injunction, when gbanted. — When the injury complained of is undeniably a nuisance, and irreparable mischief will ensue, a court of equity will not await the result of a trial at law, but will interfere at once; but it will not do so until the issue has been tried at law, where the thing sought is not unavoidably a nuisance, but only something which may perhaps prove to be so upon trial.</p> <p>5. Practice in chancery — Sworn answer as evidence. — In this case an answer under oath was required, and so far as it was responsive to the allegations in the bill, and was not disproved by the testimony of two witnesses it must prevail. The allegations in the bill not being supported by evidence sufficient to overcome the sworn answer, the decree should have been for defendant.</p>

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

<p>Landlord — Liable for injury resulting from defective premises. — When a landlord rents premises in a ruinous and dangerous condition, and an injury result therefrom to a third person, the landlord is liable. Suffering premises to be constructed or to become in a dangerous and unsafe condition, is a nuisance, and if the landlord demise the premises in that condition, he is liable for injuries resulting therefrom to third persons.</p>

<p>Error to the Circuit Court of Madison county ; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Partnership — Assignment for benefit of creditors — Relative rights of partner and creditors.' — Upon an assignment of a partnership for the benefit of creditors, an individual partner cannot prove a claim against the joint estate in competition with the creditors of the firm, and thereby take part of the fund to the prejudice of those who are not only creditors of the firm, but of himself.</p> <p>2. Claim of partner for services. — Independent of a special agreement therefor, one partner cannot recover from the partnership estate compensation for services rendered by him in the partnership business; and if such an agreement is made and no price fixed, he can recover only so much as his services are reasonably worth.</p> <p>3. Contribution to capital stock cannot be withdrawn by one partner. — The interest of each partner in the partnership property is his share of the surplus after the partnership debts are settled, and when a firm becomes insolvent the joint creditors have a primary claim. So one partner cannot be allowed to take from the firm property goods to a large amount for his own use, and as against the general creditors of the firm, set off Ms contribution to the capital stock against a claim for the value of goods so taken.</p> <p>4. Accounts between partners — Jurisdiction of county COURT UNDER THE LAW RELATING TO ASSIGNMENTS. — A claim by One partner for compensation for services is properly presented in an action of account between the partners; but it would seem that when the county court has acquired jurisdiction of a partnership estate under the law relating to assignments for the benefit of creditors, it has power to hear and adjust such a claim according to equitable principles.</p>

<p>Chancery — Service op process. — The statutory requirements for service of process must he strictly complied with,, and the return of the officer should show it, or the court will not obtain jurisdiction of the person. So, where service was made by leaving a copy with a member of the family of the defendant, and the return failed to show that it was at the usual place of abode of the defendant, or that the officer explained to such person the contents of the writ, the service was fatally defective, and the court had no jurisdiction of the person of the defendant.</p>

<p>1. Assault with deadly weapon — Justification.—A person has a right to use such force as may be necessary to prevent a trespass or destruction, of his property. If he uses more force than necessary for that purpose he will be liable to prose culón.</p> <p>2. Instruction — Assuming fact. — An instruction in a prosecution for an assault with deadly weapon, which assumes that the defendant used a deadly weapon, is erroneous.</p> <p>3. Good faith of defendant. — So, also, an instruction which makes the guilt or innocence of the defendant depend upon his good faith in attempting to prevent a trespass, and ignores the charge as to the commission of the assault, is erroneous</p>

<p>Error to the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding. .</p>

<p>Trespass — Damages.—In an action against a railroad company for injuries, it is error to instruct the jury, that the plaintiff may recover punitive damages, if the acts of the defendant were wanton or willful, without also including in such instruction the principle of contributory negligence on the part of the plaintiff.</p>

<p>Appeal from the Circuit Court of Union county; the Hon. O. A. Harker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Hamilton county; the Hon. ¥m. C. Jones, Judge, presiding.</p>

<p>Appeal from the Circuit Court of White county ; the Hon. Wm. C. Jones, Judge, presiding.</p>

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

<p>Appeal from the City Court of East St. Louis; the Hon. Chas. P. Ware, Judge, presiding.</p>

<p>1. Trespass — Damages—Smart money. — To warrant exemplary damages or smart money, there must be gross fraud, malice, wanton or oppressive conduct, or a willful injury. In the absence of these elements, the damages should be restricted to'compensation for the injury sustained. .</p> <p>2. Instruction as to damages. — In an action of trespass for breaking in and carrying away goods, an instruction that if the jury find the property belonged to the plaintiff, they were bound to give her such amount as would compensate her for the damage sustained, places the right of recovery solely upon the right of property, wholly ignores the issue on the plea of not guilty, and is therefore erroneous.</p> <p>3. Plea in abatement. — A plea in abatement must be interposed at the earliest opportunity; it comes too late after pleading to the declaration.</p>

<p>Appeal from the Circuit Court of Jackson county; the Hon. O. A. Harker, Judge, presiding.</p>

<p>1. Sheriff’s deed as evidence. — A sheriff’s deed is prima facie evidence that the provisions of the statute have been complied with, but it is not conclusive. A valid judgment, execution and sheriff’s deed prima facie show a divestiture of title, but this may be rebutted by proper testimony.</p> <p>2. Recitals in deed. — The certificate of purchase required by law to be given by the sheriff to the purchaser, is the best evidence of what lands were actually sold by him under the execution. And a successor to such sheriff cannot by recitals in a deed made to complete such purchase, estop a party from showing that certain lands mentioned in such deed were not in fact sold.</p> <p>3. Practice — Objection to testimony. — An objection to the introduction of certain testimony cannot be made for the first time in this court.</p> <p>4. Failure of title — Rights of purchaser. — Where a purchaser of land has received a deed therefor, he may not defeat a suit upon a note given for the purchase money, on the ground of a failure of title, and at the same time retain the land and enjoy its profits.</p>

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

<p>1. Promissory note — Fraud.—Where there is no fraud on the part of the payee of a note, his rights cannot be affected by any fraud practiced between the makers of the note. The note is void only when the payee commits or participates in or has knowledge of a fraud before he receives the instrument.</p> <p>2. Signer must use due caution. — Where a person signs an instrument without reading it or asking to have it read, and without any inquiry or information as to its contents, he must suffer the consequences of his own folly and negligence.</p> <p>3. Practice. — Entering final judgment upon default against one defendant while pleas of a co-defendant are undisposed of, is erroneous.</p>

<p>Counties — Interest on orders. — A county board has power to enter into a building agreement for the payment of interest when it is making an executory contract in regard to a subject-matter with reference to which a duty is imposed upon the county authorities.</p>

<p>Error to the Circuit Court of Calhoun county; the Hon. Jesse J. Phillips, Judge, presiding.</p>

<p>Error to the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Jurisdiction on appeal. — The case involving the question of the validity of a statute, this court can take no jurisdiction of the appeal.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Bakeb, Judge, presiding.</p>

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

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

<p>Appeal from the County Court of Effingham county; tne Hon. William C. Jones, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jackson county; the lion. O. A. Barker, Judge, presiding.</p>

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

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

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

M. F. Tuley, Judge, presiding. On the 11th day of June, 1872, Eben F. Runyan, being the owner in fee of certain lands in Cook county, executed a deed of trust thereon to one John R. Bullock,.as trustee, purporting to secure a promissory note bearing even date therewith, payable to the order of John M. Bullock, five years after date, with interest at the rate of ten per cent, per annum, paj-able semi-annually.

M. F. Tuley, Judge, presiding. On the 22d day of January, 1878, appellee Worthington filed a creditor’s bill, making as parties defendant thereto Anna Grassing, George Grassing, and appellant, William S. Johnston.

John A. Jameson, Judge, presiding. On the first day of Hay, 1872, Oliver A. Crary being the owner of certain premises on the northwest corner of West Harrison and Desplaines streets, Chicago, leased the same to Frank Latcham & Co. for the term of five years from that date, at a rent of $1,800 per annum, payable monthly in advance, in payments of $150 each.

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

Joseph E. Gaby, Judge, presiding. This case was as follows: on the 10th day of October, 1876, “The St. Francis Xavier Female Academy, of Chicago, Illinois, ” an educational institution incorporated under a special act of the General Assembly, borrowed of the German National bank of Chicago the sum of $31,000, and for the sum of 10,000 of said‘loan, executed its promissory note, payable to its own order three years after date, with interest at the rate of nine per cent, per…

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

<p>Appeal from the Probate Court of Cook county; the Hon. J. C. Knickbbbockeb, Judge, presiding.</p> <p>Mr. Robert Hervey, for appellant; cited Rev. Stat. 1880, title “ Courts,” §§ 226, 11.</p>

<p>Pkaotice. — The rule is settled in this State that a court is not justified in instructing the jury that any alleged fact has not been proved, when there is any evidence, however slight, tending to establish it. In this case the court is of opinion there was some evidence tending to establish the point made by defendants, and it was error to refuse to allow it to be submitted to the jury.</p>

This was an action of assumpsit, brought by the defendant in error against the plaintiff in error, an incorporated com. pany, upon an alleged agreement of leasing, by the former to the latter, of the premises known as Nos. 10 and 11 West Randolph street, in the city of Chicago.

<p>1. Chancery — Power of court to change decree at subsequent term.' — A court of chancery has no power to revise its original decree, at a subsequent term, by changing one of its directions in respect to possession of the mortgaged premises. Such an alteration is not an error in fact, that may be cured by motion in the court below.</p> <p>2. Error in fact — Meaning.—“ Error in fact ” is a phrase of rather definite legal meaning. It is error in the process such as non-age of the parties, and at common law, coverture of the plaintiff'.</p> <p>3. Possession of mortgaged premises. — A defendant is entitled to possession of the mortgaged premises until the time for redemption expires, and the master’s deed is executed, and it was error to enter a decree for possession upon the giving of the master’s certificate of purchase.</p>

John Gr. Bogebs, Judge, presiding. This was an action of forcible detainer, brought by appellee before a justice of the peace against appellant Lehman and Ernst Eagle, to recover the possession of certain premises of which Lehman was in possession by Eagle as his tenant. The case was taken by appeal to the circuit court, where a trial was had, resulting in a judgment for the plaintiff. Lehman brings the case to this court for review.

Masor B. Loomis, Judge, presiding. This was a proceeding by Mendel, the appellant, upon a distress warrant issued Feb. 3, 1879, for $335, as rent due from appellee Fink upon a demise by the former to the latter of stores No. 199, 131, 133, Van Buren street, and Ho. 96 Pacific Avenue; also rooms on 2nd floor of 127 Van Buren street, in the city of Chicago ; which warrant was executed and returned to the clerk of the county court, and to which Fink, under the statute, filed…

<p>1. Dissolution of injunction — Damages.—A failure to assess damages upon the dissolution of' an injunction, is no bar to an action upon the injunction bond for the recovery of damages.</p> <p>2. New trial — Sickness of counsel. — Although parties may retain competent counsel to conduct the defense of their suits, they are not thereby relieved from all personal responsibility or care in relation thereto. An affidavit in support of a motion for new trial on the ground of sickness of counsel, should also show something to excuse the absence of the parties themselves.</p> <p>3. Affidavit should show meritorious defense. — Affidavits in support of a motion for new trial should show a meritorious defense.</p>

JVf. F. Tuley, Judge, presiding. This was a hill in equity, brought by appellee to foreclose a mortgage executed by James Ellis, John Heiland and appellant, Jacob Schoenewald, to secure their four joint and several promissory notes, dated June 22, 1874, three for the sum of three thousand dollars each, and one for thirty-one hundred dollars, payable respectively, in one, two, three and four years after date, all payable to appellee.

T. A. Moran, Judge, presiding. Harvey B. Hurd, the relator,'filed his petition for a mandamus against the county treasurer of Cook county, to compel the payment of the following order: “Ho. 19,938. §250.00. “ State of Illinois, ) “ Cook County, j Cook County Order. “Chicago, June 1, 1877. “The treasurer of Cook county will pay John Comisky or order, two hundred and fifty dollars for clerk of board, out of monejs in the treasury not otherwise appropriated. “ Countersigned and…

Mason B. Loomis, Judge, presiding. This suit was commenced hy attachment. The amount of the indebtedness was $427.42. The causes set forth in the affidavit for the writ was (1), that Lamphere the debtor had within two years last past fraudulently conveyed or assigned his effects or apart thereof, so as to hinder and delay his creditors. (2), that he had within that time fraudulently coiicealed or disposed of his property so as to hinder and delay his creditors.

<p>Corporations — Stockholders not liable for torts of. — The mere fact that a person is a stockholder or director in a corporation, does not render him liable for the torts of the corporation or its agents. Some knowledge of, and participation in, the act claimed to be tortious must be brought home to him.</p>

Sidney Smith, Judge, presiding. This was assumpsit, originally brought by appellees against Tappan, McKillop & Co., of Chicago, alleged to be a corporation, to recover the amount of a claim left with them to be sent to Ottumwa, Iowa, for collection, and which it is alleged by appellees, was collected by an attorney acting for appellant at Ottumwa, to whom it was sent for that purpose.

E. S. Williams, Judge, presiding. This was a bill in chancery, brought by the board of directors of the Chicago Theological Seminary, to foreclose a certain deed of trust, executed by Joshua S. Seaverance to Thomas D. Snyder, as trustee, to secure the promissory note of the grant- or for $15,000, payable to the complainants.

Sidney Smith, Judge, presiding. Tins was an action by appellees, the Bogans and plaintiffs below, against the appellants, Groodkind and Oberndorf, the defendants below, to recover damages for breach of an alleged warranty, claimed by the plaintiffs to have been made by the defendants, upon the sale by the latter to the former May 8, 1880, at Chicago, of a quantity of grease, comprised in a lot of 80 tierces, said to contain 28,247 pounds, which plaintiffs bought and paid for…

John A. Jameson, Judge, presiding. The defendant in error filed her bill against plaintiff in error, praying for a decree of divorce, on the ground of cruelty. Personal service of summons was had on the defendant below, a default was taken against him December 10, 1880, and a decree of divorce was rendered December 18th. On December 23d plaintiff in error entered his motion to set aside the decree and default, which was continued to the January term, 1881.

Joseph.E. Gaby, Judge, presiding. This was an action of assumpsit, brought by the appellees against the appellants, to recover damages for the non-performance of the following contract: “ Chicago, Dec. 27, 1879. “ Bought of B. Felsenthal & Bros, the following stock, which is to be delivered between the first of January and the first of March, 1880, subject to sight-drafts, viz: from three to five car-loads of stove plates, at twenty dollars per 2,000 pounds, and from three…

John Gr. Rogers, Judge, presiding. This was an action of assumpsit brought by appellees against appellant, to recover damages for the breach of an alleged contract. The declaration contains two special counts and the common counts. A demurrer was sustained to the second special count which is not now called in question.

Sidney Smith, Judge, presiding. This action was assumpsit by appellants, Strong and Tonng, against appellee, Linington.

<p>1. Insurance contbact by pabol. — There is no statute in this State affecting the validity of a verbal contract for insurance, and the rules of the common law present no impediment to the making of such contracts, but it is indispensable that all the essential requisites of such contracts should be complied with.</p> <p>2. Essentials of an insurance contract. — There must he a meeting of minds of the respective parties at some instant of time upon the subject-matter of the insurance, the parties thereto, the amount of insurance, the limit of the risk, including its duration in point of time, and extent in point of hazards assumed, the rate of premium, and generally upon all the circumstances which are peculiar to the contract and distinguish it from every other, so that nothing remains to be done but to fill up and deliver the policy on the one hand, and pay the premium on the other.</p> <p>3. Statement — Contract in question. — Where the insured merely called at the office of appellant’s agency and left his insurance book, with a memorandum requesting it to be delivered to one of the firm of appellant’s agents, who was at the same time the agent of tfre insured in placing insurance upon his goods, and afterwards spoke to such agent upon the street about the insurance, but did not give any specific directions in regard to the same, there was no such meeting of minds as would constitute a valid contract.</p> <p>4. Agent of both parties. — The policy of the law is against a person acting as agent for both the insurer and insured. If he so act, the contract may be avoided by either party.</p>

<p>Second appeal — Res adjudtcata. — Upon a second appeal this court will not consider any questions which have been passed upon and determined by it on a former appeal. All such questions are to be regarded as res adjudicata.</p>

Sidney Smith, Judge, presiding. In January, 1877, DeWolf, then a justice of the peace, issued a summons in a suit wherein appellee, Colson, was plaintiff, and appellants, Leitch and Bernard Helly, were defendants. The summons was returned by the constable served on both defendants, and on the return-day, the defendants not appearing, judgment was entered in favor of the plaintiffs against both defendants for $132.90.

Mason B. Loomis, Judge, presiding. This was replevin, brought in justice’s court by Wheeler & Wilson Manufacturing Company against Kate long, to recover a sewing machine. On appeal to the county court the case was tried by jury. The plaintiff proved the execution by defendant, and then gave in evidence the following contract: “Wheeler & Wilson Manufacturing Co., “155 State St., Chicago, Illinois. “ $60.

M. F. Tuley, Judge, presiding. The complainants, Peter H. Beveridge and Eugene G. Mc-Curdy, filed their bill in equity against Alfred B. Hewitt, Aaron Bliss and Frank T. Bliss, co-partners, under the name and style of Hewitt, Bliss & Co., and John Hoffman, sheriff of Cook county, praying that the collection of a certain judgment at law recovered by said Hewitt, Bliss & Co. against the complainants, be enjoined; that said judgment be set aside, and a new trial at law awarded…

<p>1. Suit on constable’s bond — Evidence—Rbs inter altos acta.— In an action upon a constable’s bond for a failure to take a sufficient replevin bond, evidence of what the sureties upon such replevin bond told the deputy-coroner as to their responsibility, while the replevin writ was in the hands of the coroner to serve,' and before it came to-the constable, is not admissible, the statements being made in the absence of the constable. On the same grounds, a memorandum touching the sureties’ responsibility, made at that time by the deputy coroner, is not admissible.</p> <p>2. Damages — Evidence of. — Testimony of a party that he had the goods which were replevied appraised at a certain sum, is not evidence that the goods were of that value. Such evidence was also inadmissible under the rule above stated.</p>

<p>1. Insurance — Death from overdose of laudanum. — In construing the clause in an insurance policy exempting the company from liability in case of the “ Self- destruction of the person, whether voluntary or involuntary, and whether he he sane or insane at the time,” in the case of one who died from the effects of an overdose of laudanum taken to relieve pain, the ordinary rules as to degrees of negligence do not apply. The true inquiry is, whether the death of the insured was the proximate result of his own negligent act, and whether such act was under all the circumstances, a culpable act.</p> <p>2. Verdict of coroner's jury as evidence. — One of the requirements of the contract of insurance being that in case of an inquest the company should he furnished with a copy of the verdict and the evidence taken upon the inquest, as a part of the proofs of loss, there was no error in admitting the same in evidence.</p>

Mason B. Loomis, Judge, presiding. This action was special assumpsit by appellee, Spaids, against appellant, the Commercial Hational Bank of Chicago, to recover the sum payable in and by a bill of exchange drawn on appellant March 10, 1880, by Wells, Fargo & Co., in the State of California, whereby the latter requested appellant to pay at sight to appellee or his order the sum of $350, and delivered the same to appellee.

<p>1. Bill of lading — Not conclusive in its recitals. — A bill of lading is as between the original parties thereto, open to explanation, and either party may show that the actual amount or quantity shipped is different from the amount specified in the bill.</p> <p>2. Consignor entitled to excess ip ant over amount shown in the bill. — A bill of lading contained this condition: “All the deficiency in cargo to be paid for by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the earner by the consignee.” Held, that a proper construction of this clause would not authorize the carrier, in case of an excess in a cargo, to collect pay for the same from the consignee, and hold the proceeds as his own.</p>

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

<p>1. Dismissal of appeal — Jubisdiction.—On an appeal from, a justice of the peace, an appellee has no right to have the appeal dismissed, for want of prosecution until the cause is in such a situation as entitles him to demand a trial. The court must have jurisdiction of the parties, and the subject-matter.</p> <p>2. Bringing in co-defendants — Filins tbanscbipt. — Where one of several defendants appeals, the other defendants must be brought in by service, as provided by statute, or by voluntary appearance, before the court can have jurisdiction of the parties, and a transcript of the proceedings before the justice must have been filed ten days before the commencement of the term at which the appeal is dismissed, or the court will have no jurisdiction <3f the subject-matter.</p>

Elliott Anthony, Judge, presiding. This suit was brought by the Chicago West Division Railway Company against William P. Rend and Edwin Walker, to recover damages caused by a collision between a loaded wagon belonging to the defendants and one of the horse cars of the plaintiff.

Elliott Anthony, Judge, presiding. This was an action of assumpsit brought- by the defendant in error against the plaintiffs in error upon four promissory notes, made by the plaintiffs in error, payable to the order of the defendant i-n error.

<p>Sale — Warranty—Rescission of contract. — Where a sale of goods is made with an agreement that the vendee may return the goods if not as represented, an offer to return the same made within a reasonable time, on breach of the warranty, is sufficient to relieve the vendee from liability for the price, though the actual return may be delayed for some days, such offer to return being met by the vendor with a refusal to receive the goods.</p>

Elliott Anthony, Judge, presiding. This was an action of vndebitatus assumpsit, brought by Leon Cherest against Emma ¡Ritchie for work, labor, etc. The case was as follows: The defendant, desiring to have her'.honse painted, calcimined and decorated, requested the plaintiff, a house and fresco painter, to give her an estimate or statement of the price at which he would do said work, and in compliance with said request, the plaintiff prepared and submitted to her an estimate…

<p>1. Contracts for sale of land — Must be in writing. — By the Statute of Frauds, contracts for the sale of lands or any interest in them, except an interest not to extend beyond the period of one year, are required to be in writing.</p> <p>2. Evidence of such contracts — Not by parol — Cross-examination. — A witness upon cross-examination cannot, when it appears that the contract of sale was in writing, be required to state the contents of such contract, no notice having been given to produce the writing.</p> <p>S. Incompetent evidence. — The only evidence in this case upon which to base the decree, was that drawn from complainant upon cross-examination to the effect that he had entered into a written contract for the sale of the lands in question, and giving the contents of such contract, and this being incompetent under the rule above stated, there is nothing on which to sustain the decree.</p>

Thomas A. Moran, Judge, presiding. This was an action of debt, brought by Henry H. Shufeldt et al., creditors of the Great Western Insurance Company, against Benjamin Carver, a stockholder in said company, to recover for him an' amount equal to the amount of his stock in the company, upon an alleged individual liability as a stockholder. During the pendency of the suit, the original defendant died, and the action was thereupon revised against Watts S. Carver, his executor.

<p>Gaming contract — Recovery op consideration paid. — Where a person deposited with another a watch and chain as margins on a deal in grain, there being no intention on the part of either party that any grain was to he delivered or received, it is a gambling contract, and the articles so deposited may be recovered by the owner in an action of trover.</p>

Joseph E. Gary, Judge, presiding. This was an action of debt, brought by James P. Fogg et al., creditors of the Commercial Insurance Company of Chicago, against George H. Sidwell, a stockholder in said company, to enforce his personal liability to the creditors of the company.

W. H. Barnum, Judge, presiding. These were bills in chancery, brought in the Circuit Court of Cook county, by appellees against appellant, resulting in decrees for the complainants. By agreement of the respective parties, the two cases were heard and considered together.

<p>Banks — Right to apply deposit in payment op debt op depositor. — Where a depositor in a bank is indebted to the bank by bill, note or other independent indebtedness, the bank has the right to apply so much of the funds of the depositor to the payment of his matured indebtedness as may be necessary to satisfy the same.. So, where a bank held the note of a depositor for a certain sum, the bank could on the morning of the last day of grace upon such note, apply to its payment any money of the depositor then remaining on deposit in such bank.</p>

Joseph E. Gaby, Judge, presiding. This was an action on the ease, brought by Juliette E. Garland against the Chicago and- Northwestern Railway Company, to recover damages for a personal injury to the plaintiff, caused as it is claimed, by the negligence of the defendant. On the trial in the court below, the jury found the defendant not guilty, and the defendant had judgment for costs.

Appead from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding. This was an action on the case brought by Mary White against John Kranz, to recover damages fora personal injury received by the plaintiff while in the employ of the defendant.

B. S. Williamson, Judge, presiding. The plaintiff, James H. Fairchild, brought suit against the Michigan Central Bailroad Company, before a justice of the peace of Cook county, and recovered judgment for $50 and costs. On appeal to the Superior Court, a trial was had before the court and a jury, resulting in a verdict in favor of the plaintiff for $25, and a judgment for that sum and costs.' From this judgment the plaintiff has appealed to this court.

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

John Gr. Bogers, Judge, presiding. March 17, 1873, an ordinance was passed by the city of Chicago for the opening and extension of Dearborn street south of Jackson to Fourteenth street ard for the condemnation of the land requisite for that purpose:; and also that the expense and cost of the improvement he paid by special assessment of property thereby benefited.

John Gr. Rogers, Judge, presiding. This was an action on the case brought by appellee against the Chicago and Northwestern Railway Company, to recover damages for the death of August Schumilowsky, aged one year and ten months, who was killed by being run over by the company’s cars. The accident occurred near George and May streets, in the city of Chicago, on the 21st day of June 1879.

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

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

Elliott Anthony, Judge, presiding. This was an action on the case by Loeb the appellee, against The Chicago and Eastern Ilinois R. R. Co., the appellant.

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

Ekbok to the Circuit Court of Cook county ; the Hon. E. S. Williams, Judge, presiding. The original bill in this case was filed by Augustus Bauer for the foreclosure of certain deed's of trust, and the distribution of the proceeds of the sale of the premises thereby conveyed among the various parties entitled thereto, according ' to their respective interests.

Thomas A. Moran, Judge, presiding. This was an action for money had and received, brought April 30, 1872, in the Cook Circuit Court, by Der Germania Turn Verein, against appellant, Eames and Matthew Tallin, to recover back the purchase-money paid l>3r plaintiff to defendants, under a contract for the sale and conveyance, by the latter to the former, of certain real estate.