Volume 80 — Illinois Reports

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

<p>1. Road and bridge law—construction of sections 69 to 77 inclusive. A fair interpretation of sections 69 to 77 inclusive, of chapter 121 of Revised Statutes of 1874, warrants including a prayer for a new road and for vacating an old road in the same petition.</p> <p>2. The commissioners of highways met on the day named in the notice, and went upon and viewed the line of a proposed road, and afterwards, and on the same day, announced publicly that they would not order the road to be established, which decision was not committed to wilting until two days afterwards, when it was filed in the office of the town clerk: Held, that this was a substantial compliance with section 73 of tire Boad and Bridge Law of 1874.</p> <p>3. Same—appeal from decision of highway commissioners in refusing to lay out a road. Where an appeal is taken from the decision of commissioners of highways refusing to establish a road, to three supervisors, if the commissioners of highways and two of the petitioners appear before the supervisors on the day fixed by them, any informality there may be in the notice is waived, and if a postponement of the action of the supervisors is then and there had to a future day by common consent, it is regular.</p> <p>4. Appeal to supervisors—appearance of parties at an adjourned meeting cures irregularity in the adjournment. Where the supervisors, to w'hom an appeal has been taken from the decision of the commissioners of highways, meet with the commissioners and two of the petitioners at a time and place fixed by the supervisors, and, by common consent, their action is postponed to another time, when they meet again, and the supervisors render their decision, the last meeting cures any irregularity there may have been in the adjournment of the first.</p>

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

<p>Former adjudication—conclusive of rights of •parties as to matters involved therein. On the hearing of a bill filed by a creditor against the wife of his debtor, to set aside a deed from the husband, and wife to a third parly, and a deed from such third parly to the wife, it appeared that the complainant in such suit had, after the execution of the deeds so sought to be set aside, purchased the property in said deeds described, from the husband, and taken a deed from him to one who held it in trust for complainant; that the wife refused to join in such deed, and afterwards filed a hill to set the same aside as a cloud upon her title, derived through the deed from the grantor of her husband and herself; that on the hearing of said bill, the trustee of complainant defended as his trustee. The complainant was himself present, both in person and by attorney, and the court rendered a decree in accordance with the prayer of her bill: Held, that this adjudication was conclusive, as between the complainant and defendant, as to the validity of the title of defendant, and that the question could not be again litigated by complainant on a bill to set aside the deed to defendant.</p>

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

<p>Writ of Error to the Circuit Court of Iroquois county; the Hon. iST. J. Pillsbury, Judge, presiding.</p>

Writ op Error to the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding. On December 31, 1868, the plaintiff in error, a corporation in Hew York, granted to John Hogan, of Rockford, Illinois, a policy of insurance, Ho. 16,870. on his life, for $10,000. to be paid to his son, Patrick Hogan, who resided some 17 miles from Rockford, in Ogle county, on the death of the father, subject to the conditions of the policy.

<p>1. Statute oe limitations — subsequent admission — new promise. Where the Statute of Limitations has run aud become a bar to an action for the recovery of a debt, a subsequent admission by the defendant that the account was correct, or that be had received the goods or money, or had executed the note sued on, is not sufficient to obviate the bar.</p> <p>3. nothing short of an express promise to pay the money, or an unqualified admission that the debt is due and unpaid, nothing being said or done at. the time rebutting the presumption of a promise to pay, will obviate the bar of the Statute of Limitations.</p> <p>3. A promise made to a stranger will not take a case out of the operation of the Statute of Limitations. In order to give it legal force and effect, it must be made to the party to be benefited, or to some one authorized to act in his behalf.</p> <p>4. Where a party has permitted a debt to run, without any effort to collect it, until the Statute of Limitations can be pleaded in bar of the action, a court will not aid him on slight proof; on the contrary, the evidence should be clear and satisfactory to overcome the bar of the statute.</p>

<p>1. Cbedibility of "witnesses—Juries can not arbitrarily disbelieve the testimony of witnesses. The proposition that the jury have the right to disbelieve such witnesses as, in their judgment, under all the circumstances of the case, are unworthy of belief, is not the law'. The jmy, although they are the judges of the credibility of witnesses, have no right to arbitrarily dishellve the testimony, unless where the witness has wilfully and knowingly sworn falsely to material facts in the case.</p> <p>2. Instbuction — based upon irrelevant testimony. Where irrelevant testimon}' has been introduced, on the trial of a case, it is error for the court to - give instructions based upon hypothetical cases supposed to have been made by such evidence.</p> <p>3. Same—based upon a partial view of the facts. An instruction which undertakes t.o give a summary of the principal facts, but directs the attention of the jury only to those favorable to one of the parties, leaving out of view all that tend to illustrate the theory of the other party, is objectionable.</p> <p>3. Evidence. A party, as agent, sold a tract of land subject to the ratification of his principal, with the agreement that if not ratified lie would refund to the purchaser the money paid by him. The principal refused to ratify. In a suit brought by the purchaser for the money so paid by him, it was held,, that evidence of subsequent contracts between the parties was irrelevant, unless it was proposed to show that in making such subsequent contracts, the matter of the money to be refunded under the first, contract was, in some way, adjusted.</p>

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

<p>1. Common carrier — to whom, goods should he delivered. A common carrier may usually deliver goods to the consignee on the terms specified, or if refused by the consignee, he may return them to the consignor, or if the title has changed after receiving them, or if neither the consignor nor the consignee had title to the property when he received it, he may absolve himself from the duties of a common carrier by delivering it to the true owner.</p> <p>2. When a common carrier delivers goods to one other than the consignee or consignor, he does so at his peril, and it devolves upon him to prove that he has delivered them to the real owner.</p> <p>0. Goods were delivered to an express company, marked “C. O. D.,’ to be carried to the consignee. The consignee paid the express charges but refused to receive the goods, and directed the company to return them to the consignor. The consignor brought suit against the consignee, and recovered a judgment for the value of the goods, but in the meantime, after a verdict was rendered in favor of the consignor, and before judgment was rendered thereon, the express company, by direction of the consignor’s attorney, returned the goods to the consignor. The consignee never countermanded his directions to the company to re-ship to the consignor. When final judgment was rendered, the consignee brought an action of trover against the company to recover the value of the goods, without offering to pay the $250: Reid, that the consignee had no right of action against the company.</p> <p>4. In such case, if the consignee had notified the company that he had been sued for the value of the goods, and required it to hold them, and not deliver to the consignor until the litigation ended, it seems that a different question would be presented; but it was not the duty of the company to seek the owner, nor was it its duty, unasked and unwarned, to seek to protect the contingent future interests of the consignee.</p>

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

<p>1. Residence—whether lost by leming the State. A party who leaves this State, without auy settled intention of acquiring a residence elsewhere, but only with a conditional intention of so doing, does not lose his residence here so long as that intention remains conditional.</p> <p>2. A resident of this Stale left it with a view' to seeking a better climate, and if he found one that suited him, and. everything else was agreeable, of making it his home, but- with no particular place in view. He visited Iowa, Nebraska and Kansas, and in the latter State he took a contract to do some hauling for a railroad bridge being built. There he was taken sick, and returned to his former home in this State, never having acquired a residence or determined to make his residence at any .other place than in Illinois, and having been absent, in all, about seven months: Held, that he did not lose his residence in Illinois.</p> <p>3. Evidence—as to intent of one to change Ms residence. On the trial of a contested election case, where the ground of contest was, that the party-elected had lost his residence by leaving the State, the contestant called the claimant as a witness, and, whilst he was on the witness stand, one of the jurors asked him what was his intention when he went away—was it to make a visit, or for some other purpose ? The contestant, objected to the question, and the court sustained the objection: Held, that the testimony called for by the question was proper, and it was error to exclude it-.</p>

Arthur A. Smith, Judge, presiding. This was a bill in equity, by Timothy Moshier, administrator of the estate of Daniel Meek, deceased, against William H. Meek, Eveline M.' Meek, Jesse Weathers, and Zelotus Cooley, to enforce a vendor’s lien. The opinion of the court states all the necessary facts of the case.

<p>Bill of exceptions—when necessary. If a case is called and tried out of its regular order, in the inferior court, and a party desires to save the question, he must have the fact incorporated in a bill of exceptions, as the presumption will be, in the absence of proof, that the cause was called and tried in its regular order on the docket.</p>

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

<p>1. Chancery — can not restore a member unlawfully expelled from an association. If a member of a board of trade is improperly expelled by proceedings contrary to the constitution and by-laws, or rules of the board, a court of chancery can not restore him.</p> <p>3. Injunction—a preventive remedy only. An injunction is a preventive remedy merely, and can not be so framed as to command a party to undo what he has done.</p>

<p>1. Negligence—duty of person approaching railroad crossing. It is the duty of a person coming on to a railroad crossing of a highway, to use care and caution to avoid a collision with any passing train, and to use precaution before going thereon, to ascertain whether there is a train approaching; and the failure of those having the train in charge to ring the bell or sound the whistle, does not exempt travelers on the highway from this duty.</p> <p>2. It is error to give an instruction which authorizes a recovery against a railroad upon the ground of negligence in omitting to sound the whistle or ring the bell, without containing a requirement of any care or caution on the part of the person injured.</p> <p>3. Same — slacking speed at highway crossings. There is no law requiring railroad companies, when running at a high rate of speed, to slacken the speed of their trains when teams are approaching a railway crossing in the country.</p> <p>4. Instructions—when erroneous not cured by others. Where one instruction is given authorizing a recovery against a railroad for injuries caused bj" negligence of its servants, which contains no requirement of care or caution on the part of the injured party, the error will not be cured by other instructions which do contain such requirement.</p> <p>5. Measure of damages—in suit to recover for death of party. The act giving the right of action against a railway company for causing the death of a person, limits the damages to the pecuniary injury sustained, and the jury should, in such case, disregard all grief, sorrow and mental affliction of the widow and children of the deceased, and consider only the pecuniary injury, and the court, when asked, should so instruct them.</p>

<p>1. Assault and battery—party using more force than is reasonably necessary. Although a person has the right to eject another from his premises who forcibly enters the same, or who, being there, uses inde'cent or abusive language, or commits an assault upon him, yet, in so doing, he must use no more force than is reasonably necessary for that purpose, and if he use more force than is reasonably necessary under the circumstances of the case, he will be liable, in an action of trespass, for whatever damage is thereby done.</p> <p>2. In such case, an instruction that the defendant would be justified in using all the force necessary in expelling the plaintiff, is erroneous in omitting the indispensable element of the reasonableness of the force allowed.</p>

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

Joseph E. Gaby, Judge, presiding. This was an action of assumpsit, brought by the appellees, against the appellant. The declaration contained only the common counts for goods, wares and merchandise sold and delivered, for money paid out and expended, and for work, labor and material.

Arthur A. Smith, Judge, presiding. This was a suit originally brought by the appellee against the appellant, to recover the proceeds of the sale of a bull. The facts were, that the appellant, who was the owner of the bull, delivered it to one John Shelton, at Cameron, Illinois, on the 8th of January, 1872, to be shipped to Chicago and sold, the proceeds to be returned to her.

<p>1. Change op venue—court has no discretion in regard to, in civil cases. If a part)-, seeking a change of venue, complies with the requirements of the statute in relation thereto, the court has no discretion in the matter, but must award the change.</p> <p>3. And the fact that the party seeking the change may have no merits, does not change the rule. The right to a change, upon complying with the statute, is secured to him by an express provision of the statute, and the courts have no power to repeal, modify or mitigate any requirement of the statute.</p> <p>3. Pleading—declaration on policy of fire insurance. A declaration which does not aver the value of property destroyed, but which avers that the plaintiff was interested in the property to the value of $5000, although it might be bad on special demurrer, is good on general demurrer, or in arrest of judgment.</p> <p>4. Same—when condition or exception in a contract must be negatived in the decimation. Where a right is conferred by a clause absolute and unconditional in its terms, but the right is limited in a subsequent clause by a condition or exception, the pleader is not required to negative the condition or exception, hut it is for the defense to plead it.</p> <p>5. But when the condition or exception is contained in or referred to by the clause giving the right, then the plaintiff must set out and negative the condition or exception.</p>

<p>1. Fraudulent conveyances — a conveyance of property to place it beyond the reach of creditors is fraudulent in law. A debtor in failing circumstances is only allowed to place his property beyond the reach of his creditors by making a general assignment of it, when he does so for the benefit of the creditors, by devoting it unreservedly to the payment of his debts, and not with a view to his advantage, in delaying until a favorable time the appropriation of the property for such purpose.</p> <p>2. A conveyance by a debtor in failing circumstances of all his property, for the purpose of placing it out of the reach of creditors, not for the purpose of depriving them of all benefit of the property, but to prevent its sacrifice for the payment of their claims by enforcement of legal remedies, and to await favoiable opportunities for disposing of the property and applying it to the satisfaction of the claims, is fraudulent in law, although there may be no fraud in fact intended by such debtor.</p> <p>8. Same—when only constructively fraudulent may be upheld as to one guilty of no actual fraud. "Where a security oy conveyance is set aside as constructively fraudulent, it may be upheld in favor of one not guilty of an)1- actual fraud to the extent of the actual consideration, and be vacated as to the excess.</p> <p>4. Same—conveyance by grantee in a fraudulent conveyance to secure a bona fide debt of the debtor grantor. A debtor in failing circumstances conveyed to his brother all his property, and the brother took up notes which the owner of the property owed to another brother, and gave his own notes for the amount thereof, with the understanding that he was to pay them out of the proceeds of the sale of the property conveyed to him, or he was to have the privilege of paying in property, at cash value. Afterwards he conveyed to the brother holding his notes a portion of the property, with a verbal agreement that, upon payment of the notes, the property so conveyed should be reconveyed to him: Reid, that although the conveyance by the failing debtor to his brother was fraudulent as against creditors, yet the conveyance by that brother to the other, being for the purpose of securing a bona, fide indebtedness, was not void, but should be treated as a mortgage; and that upon a creditor’s bill to set aside such conveyances, the decree should be that such second conveyance be treated as a mortgage, and that the debt intended to be secured thereby have precedence over the other debts of the debtor, and be first paid.</p> <p>5. Creditor’s bill—personal decree against defendants not debtors. It is error,on a creditor’s bill to set aside conveyances as fraudulent, to render a personal decree for the amount of the debts due to complainants as against one guilty of no fraud and not a debtor.</p> <p>6. Same—effect of discharge of debtor in bankruptcy. Where a debtor, after a creditor’s bill is filed against him, is declared a bankrupt, and as such discharged, and sets up his discharge in that suif, the effect is to preclude the court from rendering a personal decree against him, but it can not preclude the court from dealing with the property alleged to have been fraudulently conveyed, in the creditor’s bill.</p>

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

<p>1... Sureties—property pledged by the principal debtor. It is a well settled principle in equity, that a creditor who has the personal contract of his debtor, with a suret}', and takes property from the principal as a pledge or security for his debt, should hold the property for the benefit of the surety as well as himself, and if he parts with it without the knowledge or against the will of the surety, he shall lose his claim against the surety to the amount of the property so surrendered. Property so taken by the creditor is taken and held in trust, not only for the creditor’s security, but for the surety’s indemnity. And these rules of equity are recognized and enforced in courts of law.</p> <p>2. A party signed a note, as surety, with the principal, and delivered it to the principal, with authority to insert the name of a payee in a blank left in the note for that purpose. The principal borrowed of the plaintiff the amount of money the note called for, and inserted his name therein as payee, and delivered the note to him, and at the same time, as additional security for the money, delivered, in pledge, a coll worth $100. The colt was afterwards delivered up by the payee of the note to the principal: Held, in a suit brought on the note, against the surety, that the plaintiff could only recover the balance due on the note after deducting the valúe of the colt.</p> <p>3. Evidence—proof of promises or declaration of a principal in suit against surety. When a joint suit is brought against the principal and surety in a promissory note, but the surety alone is in court, and the principal testifies, as a witness, that the note has been paid, evidence as to any promise or declarations made by the principal after the time he testified the note was paid, is not competent against the surety, the principal, in such case, not being a party to the action.</p> <p>4. Where one of the makers of a promissory note, who was not a party to an action brought on it, testified on behalf of another maker, who was a party,that the note had been paid, and no inquiry was made of him in relation to any promises or declarations made by him subsequent to the time of the alleged payment, so as to make evidence of such promises or declarations admissible for the purpose of impeaching his testimony, evidence in regard to such promises or declarations was properly excluded.</p>

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

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

<p>1. Mandamus—not awm-ded to control the action of rolunta/ry associations for religious or moral purposes only. Courts never interfere to control the enforcement of the by-laws of merely voluntary associations, created for the advancement of religious, moial or social principles, or merely for amusement. Such organizations must be left to enforce their rules and regulations by such means as they may adopt for their government.</p> <p>2. The board of trade of Chicago, though incorporated under an act of the General Assembly, is merely a voluntary organization, which is fully empowered by its charter to govern in such mode as it may deem most advisable and proper, and when it has adopted by-laws and a forum for their enforcement, the courts will not interfere to control their action.</p> <p>3. So, where a member of the board of trade was, under and in pursuance of the by-laws thereof, expelled, the court properly refused to award a writ of mandamus to compel the board to admit him to membership in the organization.</p>

S. M. Moore, Judge, presiding. This was a bill in equity, to enforce a conveyance of a certain eighty acres of land, lying just south of the city of Chicago, founded upon an agreement in writing, of which the following is a copy: “Articles of agreement made and entered into this fifth day of June, A. D. 1855, by and between David Hess, of ¡Naperville, in the county of DuPage, and State of Illinois, of the first part, and John Bostwick, of the city of Alton, in the State…

<p>1. County courts—not courts of inferior or special jurisdiction. County courts, although of limited, are not, strictly speaking, of inferior, and certainly are not courts of special jurisdiction, and when adjudicating upon the class of questions over which they have general jurisdiction, as liberal intendments will be granted in their favor as would be extended to the proceedings of the circuit courts.</p> <p>2. Same—presumption in favor of their finding, on petition by administrator to sell real estate. Where a petition is filed in the county court by one claiming to be an administrator, for leave to sell real estate to pay debts of the deceased, one of the questions presented for the adjudication of the court is, whether the petitioner is administrator, and if the court decrees in accordance with the prayer of the petition, the presumption is that the proof was sufficient.</p> <p>3. Same—when and how jurisdiction of sale of land of deceased parties to pay debts acquired. County courts acquire jurisdiction in a proceeding by an administrator to sell lands to pay debts, from the death of the party seized of the real estate, the grant of letters of administration, and his indebtedness, and filing a petition showing these facts; and the recitals of the record can not, in a collateral proceeding, be contradicted by parol or other evidence outside of the record.</p> <p>4. County courts having jurisdiction over estates in general, the question as to whether a particular county court has jurisdiction of a particular estate is a question of fact to be determined by that court, and when once determined, the judgment is conclusive, and can not be questioned in a collateral proceeding.</p> <p>5. Administrator’s sale of real estate—prerequisites to filing petition to sell land. Where an order for the sale of real estate by an administrator recites that he has applied the proceeds of all the personal property which came into his possession to the payment of debts of the deceased, and that there is a large amount of such debts still unsatisfied, for the payment of which there are no assets in his hands, and also recites that the administrator filed an inventory and appraisement of the estate, which were canceled, so far as they related to goods and chattels, for the reason that such goods and chattels never came into the possession of such administrator, for which, reason no sale bill could be rendered, etc., it was held, that such recital obviated the objection that there was no inventory, appraisement bill and sale bill filed before filing the petition for sale of real estate.</p> <p>6. Decree of foreclosure—when binding, on failure to redeem. A decree of foreclosure of a mortgage, if it is of such force as to be taken advantage of by the defendants as an estoppel against the complainants denying their title, in case they chose to redeem from sale under it, is binding on them in case they fail to redeem.</p>

Joseph E. Gaby, Judge, presiding. On the 23d day of May, 1856, Winchester Hall, one of complainants, purchased of Ayers and Hamilton a block of ground, which included within its limits the lands involved in this controversy. A portion of the purchase money was paid down, and the remainder, represented by six promissory notes, was secured by mortgage upon the premises, containing a power of sale.

<p>Appeal from the Circuit Court of Boone county; the Hon. Theodore D. Murphy, Judge, presiding.</p>

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

<p>1. Negligence—employer not liable for negligence of contractor in performance of work under contract. While a master is responsible for injuries arising from the negligence of his servant, a party who has contracted for the doing of certain work for his use and benefit is not liable for injuries arising during the performance of such work.</p> <p>2. Master and servant—when the relation does not exist between employer and employed. One who contracts to do a specific piece of work, furnishing his own assistants and executing the work either entirely in accord with his own ideas, or in accordance with a plan previously given to him' by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor, and not a servant, and a person injured by his negligence in the performance of the work would have no right of action against the party for whose benefit the work is being done.</p>

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

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

<p>Canal—company not required t'o draw off.water periodically for inspection of led. A canal company is not required to have the water drawn off periodically, in order that the hed of the canal may be inspected; and if, after the bed of the canal is cleaned out, a rock is deposited there, by reason of a “ slide ” from some point near the slope of the land, the company will not he liable for damage done to boats thereby.</p>

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

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

<p>1. Description oe land—of what courts will take notice without proof. Courts will take notice of the meaning of initials used in the description of land in this State, in conveyances, levies of executions, judicial sales, surveys, assessments for taxes, etc., without further proof.</p> <p>3. Where, in the description of land, the number of a township is used without indicating whether north or south, and there is no township of that number south in the county where the land is described as being, the court will take notice of the fact, and that the township referred to is north.</p> <p>3. The court will also take notice that the south line of section 36, and the south line of the township, are one and the same line.</p> <p>4. Variance—in description of some points or lines not material, if all taken together locate the same road. Where the court can, from the petition for the establishment of a road, the order establishing it, and the plat thereof, locate the road, without any difficulty, as the same road described in the complaint for obstructing a road, there is no substantial variance, although some of the points on the line of the road may be described in different language in different parts of the proceedings.</p> <p>5. Estoppel—owner of land receiving damages awarded. Where a road is ordered to be opened, and the owner of land over which it passes receives the money awarded to him as damages by the commissioners of highways, he is estopped from alleging that the proceedings wore void.</p>

<p>1. Bank check—payee or assignee may recoven' the amount from, drawee. Where a depositor draws his check on his banker, who has funds to an equal or greater sum than his check, it operates to transfer the sum named to the payee, who may sue for and recover the amount from the bank, and a transfer of the check carries with it the title to the amount named in the check to each successive holder.</p> <p>2. Same—ck-cmer can not countermand so as to affect it in hands of bona fide holder. After a check has passed into the hands of a bona fide holder, it is not in the power of the drawer to countermand the order of payment.</p>

<p>Evidence—as to preponderance. In an action upon bills of exchange drawn on and accepted by defendants, the defense was, that the bills were drawn and accepted in payment for oil sold by plaintiffs, in Pennsylvania, to be shipped to defendants, in New York, and to be of a good and merchantable quality, and that the oil, when shipped, was not of such quality, but was worthless. The only evidence in support of the defense was the testimony of one of the defendants, weakly sustained by another. It appeared that, when the oil was shipped, it was inspected by the agent of defendants, and passed such inspection as good and merchant, able oil, and it was held, that the preponderance of the evidence was in favor of plaintiffs, and that they should recover.</p>

<p>Settlement—whether established by proof in particular case. In a suit on a note, the defense set up was that it was paid in a settlement previously made between plaintiff and defendant. It appeared that in August the parties made an agreement by which the defendant agreed to sell to the plaintiff four interests or shares in a tract of land which he claimed to own, one by inheritance and three by purchase from other heirs of a deceased brother, for $1,800, and all suits, including one pending on the note in controversy, were to be settled. In September following the parties met, and, the defendant being able to convey only three shares of said land instead of four, the contract was changed, and the plaintiff took a conveyance of the three shares and gave her two notes to defendant, one for $950, one for $300, and $200 in cash, with the understanding, as she testified, that she should surrender the note in controversy and receive a credit for the amount of it on the $950 note, but defendant testified that he was to receive the note in controversy in addition to the three notes, making the amount about equal to wh at he was to receive for the four shares; he claimed that in addition to the three shares in the land, he had sold the same number of shares in the personal estate of his deceased brother. It also appeared that his brother had left a widow who was entitled to the whole of his personal estate: Held, that the jury were warranted in finding that the note in controversy was not to be given up except when the amount thereof was credited on the $950 note, and that having been assigned and the plaintiff having paid it to the assignee, she was entitled to recover on the note in controversy.</p>

Appeax from the Superior Court of Cook county; the Hon. ' S. M. Moore, Judge, presiding. This was a bill in chancery, filed by Thomas Bracken, February 8, 1873, and cross-bill by John H. Bracken, October 16, 1873, against Charles Cooper, for partition of the west half of the south-east quarter of section 33, township 40, range 13, in Cook county, the Brackens each claiming an undivided one-third interest. Cooper claimed the whole.

<p>1. Official bond—liability of sureties on, continues during term of office. When the term of office of an officer is fixed by law at two years and the record shows that the office was filled by appointment, at the time when, by law, the term would expire, it is conclusive that the appointment was for two years from that date, and the sureties on the bond of the officer so appointed will be liable for his acts during the full term of two years from the date of his appointment.</p> <p>2. Same—misrepresentation of principal to surety at time of executing, no defense to suit. Where parties become sureties on the bond of a township treasurer appointed at the time when that office becomes vacant by limitation, they will be liable l'or the full term for which he is appointed, and null not be permitted to defend against such bond on account of any representations the principal may have made to them in regard to the object or purpose of it at the time it was executed.</p> <p>3. School law of 1872—construction of as to election of township treasurer. The treasurer to be appointed under the Consolidated Act in relation to schools, in force July 1, 1872, was to be appointed at the expiration of the term of the treasurer in office when the act took effect.</p>

<p>Continuance—when affidavit is sufficient it is error to refuse continuance in criminal case. An affidavit for a continuance in a criminal case, where the defendant was arrested on the 9th of the month and kept in jail until the 14th of the same month, and then brought out for trial on an indictment found in the interim between the 9th and 14th, -which states facts from which the court can see that a witness, whose name and residence is given, is absent without the consent or procurement of the accused, that he has used every possible means within his power to prepare for trial, and that he expects to be able to procure the attendance of the witness at the next term of court, and that the facts which are stated as expected to be proved by such witness are material to the defense, is .sufficient, and it is error to refuse a continuance upon such an affidavit.</p>

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

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

<p>1. Guarantor—liable without regard to solvency or insolvency of maker. The liability of the guarantor of a promissory note, whose guaranty is absolute and unconditional, does not depend upon the solvency or insolvency of the maker or indorser, and the holder is not required to institute any proceedings against the maker.</p> <p>2. Same—not released by payee taking collateral security. Taking a note as collateral security to another note, upon which there is an absolute guaranty, and transferring the collateral note, the original all the time remaining in the hands of the payee, does not release the guarantor.</p>

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

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

Joseph E. Gaby, Judge, presiding. This was assumpsit, by appellee against appellant, for certain building materials used in the construction of a building belonging to appellant, in the city of Chicago. Appellee had constructed, at the same time, a building adjoining to that of appellant, between which there was a single wall, used in common for both buildings.

Silvanus Wilcox, Judge, presiding. This was a bill in equity, by Henry 0. Paddock, Thomas B. Coulter and Lucy Coulter, executors of the last will and testament of John E. Coulter, deceased, against the Aurora Agricultural and Horticultural Society of Aurora, Illinois, and various others, to foreclose a mortgage given by the society to John E. Coulter, in his lifetime.

Martin B. M. Wallace, Judge, presiding. This was an application, by Henry B. Miller, collector of Cook county, for judgment against certain real estate, for delinquent assessments thereon. The real estate of the appellant was described as follows: “S. \ ex.

Samuel M. Moore, Judge, presiding. This was a bill in chancery, filed by John W. Eldridge against Samuel G. Walker, Martin O. Walker, Thomas Dyer and Curran Walker, to set aside a conveyance of certain lots on the grounds stated in the bill. This bill was filed June 23, 1848. Answers and replications were filed, and the cause stood on the docket until February 10, 1866, when the cause was heard on the merits, and the bill dismissed.

Henry Booth, Judge, presiding. This was, originally, a hill for divorce, filed on January 28, 1870, by Elizabeth Dinet against Joseph Dinet, and a cross-bill by Joseph Dinet against Elizabeth Dinet, for a divorce. The jury found the defendant in the original bill guilty, and the defendant in the cross-bill not guilty.

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

Samuel M. Moobe, Judge, presiding. This bill is filed for the purpose of obtaining a construction of the articles of co-partnership between the parties, and for an account. Business was commenced and prosecuted until the 1st day of January, 1869, under the following: “ Articles of agreement made this 30th day of Hovember., in the year of our Lord 1867, between Fred. Schwamb, of the city of Chicago, county of Cook, State of Illinois, of the one part, and J. W. Taft and L>.

<p>1. Bankruptcy—debt contracted through fraud not discharged. If goods are sold for cash on delivery, and the purchaser obtains their possession without payment, and immediately ships them beyond the reach of the seller and then refuses to pay, his conduct may be regarded as fraud in the creation of the debt, as contemplated by the 23d section of the Bankrupt Act, and his discharge will not release him.</p> <p>2. Same—new promise to pay. If a debtor, after his discharge in bankruptcy, makes a new promise to pay the debt, then his discharge will not preclude a recovery.</p>

Samuel M. Moore, Judge, presiding. The opinion of the court gives a condensed statement of the essential facts involved in the case. The complainant appealed from the decree below. The defendants below were the parties claiming title under the executor’s sale.

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

<p>1. Carries—liability for delay in delivering to succeeding line. If fruit trees and shrubbery are destroyed by the cold, in the hands of an intermediate carrier, by reason of negligence or unreasonable delay, or if, by such delay in transportation or in delivering to the next carrier in the line, the latter can not, by reasonable efforts, transport and deliver before they are destroyed by cold weather, the former carrier will be liable for the loss.</p> <p>2. Although a carrier may be guilty of unreasonable delay in transportation, he will not be liable for a loss caused by cold weather, if he delivers the freight to the next company in the line in sufficient time for it, by reasonable diligence, to transport and deliver to the consignee before injury by the cold.</p> <p>3. • Same—excuse for delay in delivery to next carrier. Where fruit and ornamental trees shipped were destroyed by frost before reaching their destination, and this was caused by delay of transportation to Chicago, where they were to pass into the hands of another line, the fact that the company’s buildings in Chicago were destroyed by fire, will not furnish a sufficient excuse for the delay, where it appears that other shipments, made afterwards, went through in time, and were delivered to the other line.</p> <p>4. Same—delivery to succeeding line. Where it is the custom of a railway company, to whom freight is delivered in the car of another line for transportation, not to receive and forward the same until expense bills are delivered by the preceding line, with directions, the first company, being conversant with the rule, can not be regarded as having delivered a car of freight before complying with such custom, and thus exonerate itself from loss occasioned by the delay.</p>

<p>1. Landlobd and tenant—liability of latter for rent. Where a party in possession of a room pays rent to the plaintiff at the end of a quarter, this will afford evidence of the relation of landlord and tenant, and warrant a finding of his liability to pay rent to the plaintiff" as long as he occupies the premises.</p> <p>2. Same—liability under lease for rent. A party in possession of a room' under a lease purporting to be made by a third person to the plaintiff’s ancestor, with an assignment by such third person to him, can not be held liable for rent under the lease.</p>

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

Writ of Eebob to the Circuit Court of Eock Island county; the Hon. G-eobge W. Pleasants, J udge, presiding. This was an action on the case, by the plaintiff in error, as the administrator of the estate of Grilbert H. Dimick, deceased, against defendant in error, to recover damages for the death of the deceased, through negligence. The material facts appear in the opinion.

William W. Heaton, Judge, presiding. This was a petition filed by the appellant against the appellee, to obtain the custody of appellant’s infant daughter, Sarah A., then about seven years of age. It appears that in January, 1871, the mother of the child obtained a decree of divorce against the appellant for cruel treatment, which gave her the custody of the daughter.

<p>1. Constitutional law—power of the legislature to amend charter of corporation. Where a special charter of an insurance company contains a provision that it may be altered, amended or repealed at any time, there can be no doubt of the power of the legislature to so amend such charter in such manner as it may see proper, in reference to the rights, duties and liabilities of the company and its stockholders.</p> <p>2. Insurance companies—liability of stockholders. The stockholders in all insurance companies subject to the General Insurance Law of 1869, are liable for the debts of their company to the full amount of their respective shares of stock, where the full amount subscribed has not been paid in.</p> <p>3. A stockholder is not relieved from this liability by payment of the sum subscribed by him. Until the full capital stock is paid in, and a certificate of the fact made and recorded, he is liable to be sued for the debts of the company to'the amount of his stock.</p> <p>4. Same—effect of law of 1869 on special charters. The 19th section of the General Insurance Law of 1869 is broad and comprehensive, and brings all insurance companies organized before and doing business in this State at the time of its passage, under all its provisions as fully as if it had enumerated them by name, and its effect is to amend such charters so as to make them conform to its provisions.</p> <p>5. Practice in Supreme Court—cause for opening judgment. The fact that there are a large number of other cases pending in the court below involving the same questions decided by this court in a particular case, is no ground for opening the judgment therein. Such decision is no impediment to the trial of the other cases. When they are tried they may be brought to this court, and then the propriety of the former decision may be examined.</p>

<p>1. Jurisdiction—may be shown from recitals in decree. The recitals in a decree or order are proper evidence to show jurisdiction, in a collateral proceeding.</p> <p>3. Same—sufficiency of recital to show. WJtere an order for the sale of land by an administrator recited, “ and now, on this day, came the petitioners, by Cheney, their attorney, and made proof of the service of notice according to the provisions of the statute in such case made and provided: ”</p> <p>Held, that this was sufficient to show service of notice of the application, together with a copy of the account and petition as authorized by the Revised Statutes of 1845, and gave the court jurisdiction of the parties.</p> <p>3. Administrator’s sale—jurisdiction depending on petition when the files are lost. Where the entitling of an order of sale by an administrator shows there was a petition, this will be sufficient to give the court jurisdiction of the subject matter to order the sale, when the sale is attacked in a collateral proceeding.</p> <p>4. In a proceeding, under the Revised Statutes of 1845, by an administrator, for the sale of land to pay debts, it is not essential to the jurisdiction of the court that the petition should show the lands of which the intestate died seized, if that fact otherwise appears upon the face of the record, as by recital in the order of sale.</p> <p>5. Same—order construed as to time of sale. An order “that said petitioners bo authorized and empowered to make sale of said land,” etc., “and that they be required to make report to this court, at the next term thereof, of their doings in the premises: ” Held, that, as the grant of power to sell was general, without restriction as to time, the clause requiring a report at the next term did not limit the exercise of the power within that time, but that the sale might be made after the next term.</p> <p>6. So, where, at a succeeding term, an order was entered extending the time for making sale to the next term, it was urged that was a construction of the limited character of the original order, and limited the administrator to selling by the next term after the last order, but it was held, that such order was only formal, and in no way changed the original order of sale.</p> <p>7. Same—purchaser not affected beca/use there were no debts at time of sale. Although there may be no debts remaining unpaid at the time of the sale of land by an administrator, that will not render the sale void. A bona fide purchaser at such sale, without notice that there wore no debts to be paid, will bo protected in his purchase, if the court had jurisdiction of the subject matter and of the parties interested.</p> <p>8. Purchaser—notice of irregularity. Where an administrator’s sale of land ordered in 1848 was not made until 1852, and the record showed a continuance giving further time to sell, and various subsequent orders of continuance, it was held, that the lapse of time before selling, and such orders, were not sufficient to put the purchaser upon inquiry as to whether the debts had been paid from other means, before the sale to him.</p>

Writ of Error to the Circuit Court of Kane county; the Hon. Siltamus Wilcox, Judge, presiding.

<p>1. Contract—party not responsible for delay caused, by other party. If a party contracting to furnish and deliver cut stone for a building is ready and willing to deliver as required, but the other party is not then ready to receive the same, and after the delivery is commenced he is delayed in consequence of mistakes in the drawings and specifications furnished, by which he has to do a portion of the work a second time, he can not be held liable in damages for delay in completing the building, without his fault.</p> <p>2. Same—damages for delay. If a party agreeing to furnish the cut stone for a building is guilty of a delay in supplying the same within the time required, whereby the builder claims that he was deprived of rents in the spring, the usual time for leasing rooms, he must show that the building would have been completed by the time for renting had it not been for the delay in delivering the stone, if he wishes to recoup damages in a suit for the price of the stone.</p> <p>3. Same—when personally binding onpandy making. If a person makes a contract, describing himself as guardian or trustee for another, and so signs the same, he will be personally liable, in the absence of an express provision showing clearly that both parties agreed to act upon the responsibility of the funds in his hands alone, or upon some other responsibility, or there appears some other circumstance clearly indicating another party who is bound by the contract, and upon whose credit alone it is made.</p> <p>4. The use of the name trustee, or other name of office or employment, by a promisor or contracting party, will not discharge him. Some one must be bound by the contract, and if he does not bind some other he binds himself, and the official name is then only regarded as describing and designating him.</p> <p>5. Guardian—when personally liable on contract. A guardian can not, by his own contract, bind the person or estate of his ward; but if he promises, on a sufficient consideration, to pay the debt of his ward, he is personally bound by it, although he expressly promises as guardian. And a guardian who thus discharges the debt of his ward, may lawfully indemnify himself out of the ward’s estate, or; if he be discharged from his guardianship, he may have an action against the ward for money paid for his use.</p> <p>6. Where a guardian contracted, as such, for stone for a building for his ward, and signed the same as guardian, and the contract did not assume to bind-the ward, and did not limit the guardian’s liability by a provision that the price should be paid from the assets belonging to the ward in the guardian’s hands: Held, that the guardian was personally liable on the contract.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Silvanos Wilcox, Judge, presiding.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. Joslah MoRoberts, Judge, presiding.</p>

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

<p>1. Insurance—policy construed as to notice to be given. Where a clause in a policy of insurance requires the assured, in case oí loss, to “ give immediate notice thereof in writing,” and “ render to the company a particular account of said loss, in writing,” and the policy further provides that payment shall be made in sixty days after due notice and proofs of the loss, a liberal construction should be given to the words used, and it will be held to require notice and proofs to be given within a reasonable time after the loss.</p> <p>2. Same—what is reasonable time to give notice. Where a loss occurred on the 8th or 9th of October, and notice and proof of loss were given on Nov. 13th following, it appearing that the office of the insurance company was also destroyed, so that the assured did not know where to find its officers, and the conflagration was so general as to suspend all business transactions, and the assured held many other policies under which he sustained losses, it was held, that the court could not say the delay, under the circumstances, was unreasonable.</p> <p>3. Pleading—defects, how reached. If a declaration is considered defective, the proper practice is to demur to the same, instead of moving to exclude the evidence in the case.</p> <p>4. Insurance—evidence of value of property destroyed. The proofs of loss furnished an insurance company are admissible in evidence, in an action upon a policy of insurance, to show that such proofs were made and delivered as required by the terms of the policy, but not for the purpose of proving the extent of the loss to the jury—that must be shown by other evidence.</p> <p>5. Same—diligence in giving notice a question of fact. Where there is no dispute as to the facts of the case, it is a question of law whether due diligence has been used in giving notice of a loss; but where the facts in regard to diligence are disputed, it is a question of fact for the jury, and it is proper to submit to the jury whether, under all the circumstances, immediate notice was given.</p> <p>6. Same—waiver of due notice. Where a defective notice and proof of loss is given to an insurance company, and no defects are pointed out, so as to afford an opportunity to correct the same, objection to the same will be considered as waived, but not so where the notice is not given in time. The retaining of the notice, and making no objection, is not a waiver of the failure to give the. same in time.</p> <p>7. Interest—on loss under insurance policy. A policy of insurance being a contract to pay money at a certain time after a loss, it is proper to allow interest on the same from the time it becomes payable.</p> <p>8. New trial—newly discov&red evidence. A new trial will not be granted on the ground of newly discovered evidence, where such evidence is impeaching or merely cumulative in its nature.</p> <p>9. Parol evidence. It is competent, in an action on an insurance policy, to prove by parol evidence that the assured had obtained insurance in other companies on the same property.</p>

<p>Writ of Error to the Circuit Court of Iroquois county; the Hon. Nathaniel J. Pillsbury, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Bock Island county; the Hon. George W. Pleasants, Judge, presiding.</p>

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

WHIT OF Enuon to the Circuit Court of Cook county; the }[on. ~JOHN 0-. ROGERS, Judge, presiding. This was an action of forcible detainer, bronght by Greenbaum, against Reynolds, for the recovery of demised premises, on the ground that the term was forfeited by the non-payment of rent. The plaintiff recovered in the court below.

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

<p>1. Municipal corporations—liability for illegal acts of its officers and servants. Where the act done is within the corporate power, and might have been lawfully accomplished, had the municipal authorities proceeded according to law, the corporation will be liable for the acts of its officers and servants, proceeding contrary to law, or in an irregular manner.</p> <p>2. But where the act complained of lies wholly outside of the general or special powers of the corporation, it can, in no event, be liable, whether it directly commanded the performance of the act, or whether it be done by its officers without its express command.-</p> <p>3. Where a declaration shows an injury resulting from the acts of city officers in attempting to enforce an ordinance which was ultra vires and void, it will fail to show any right of action against the city.</p>

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

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

Joseph Sibley, Judge, presiding. This was an action by Francilia M. Hotchkiss against Alvin S. Wadhams. The opinion of the court gives a sufficient statement of the case for an understanding of the points discussed and decided.

<p>Appeal from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.</p> <p>This was a bill in chancery by James Pratt and Emily J. Pratt, his wife, against Horatio 0. Stone, William Golding, Fanny Reynolds, Charles Hobbs, George Brandt, Charles G. Smith, Berthold Lowenthal, Patrick Coney, Asahel 0. Bassett, Julian G. Iverson, Martin 0. Head, John N. Ridgely, Leo Silverman, William Kleuger, Henry C. Murly, Hugh H. Edwards, Edward P. Town, Michael McGovern and A. M. Pence. The nature and object of the bill is fully stated in the opinion.</p>

Writ of Error to the Superior Court of Cook county; the Hon. T. D. Murphy, Judge, presiding. The bill of complaint, in this case, was exhibited on the 31st of July, 1873, by the complainants, as stockholders in the Lamar Insurance Company, of Chicago, on behalf of themselves and all others similarly situated, against the company, William H. W. Cushman, Isaac H. Hardin, and others.

Writ of Error to the Superior Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding. This was a bill in chancery, filed by Alexander Cunningham, for himself and in behalf of all other creditors of the Bank of Chicago, against Isaac P. Coates, the Bank of Chicago, the president of the bank, and others. The object of the hill is stated in the opinion.

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

Joseph E. Gary, Judge, presiding. This was an action on the case, by the appellee against the appellant, to recover the value of lost goods which came into . the possession of the defendant as a carrier. The' facts of the case appear in the opinion.

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

<p>1. Condemnation of property—effect of judgment. No order or judgment can be entered of binding force on an application to condemn property for right of way, so as to confer a present right to take or damage real estate, before payment of the compensation found; all that can he done, under the constitution, is to enter a judgment or order vesting the right to take or damage the property as desired, upon the performance of the condition precedent of making the compensation fixed by the jury.</p> <p>2. The judgment of the court on condemnation of property for public use is conditional, depending on the payment of the damages found, and the party seeking condemnation acquires no vested right until such payment is made or the sum deposited, and the rights of the parties are reciprocal, so that the property owner has no vested right in the damages found by the jury until the same is paid or deposited. If the property, however, is taken or damaged by the owner’s consent before compensation is made, the owner will then have a vested right in the compensation when ascertained.</p> <p>3. Same—abandonment of proceeding. Where land is condemned for public use, and the condition of the order is not complied with in a reasonable time by the payment of the damages and taking possession of the property, the proceedings will be regarded as abandoned, and a court of equity would enjoin any attempt to proceed under them.</p> <p>4. Same —judgment—interest and execution. Where the property condemned has not been taken or damaged, the order or judgment on the assessment of the jury will not hear interest, and no execution can he awarded for the collection of the sum so assessed.</p> <p>5. Same—city may abandon after damages are assessed. A proceeding to condemn real estate for public use may he abandoned at any time after (lie damages are assessed, and before payment thereof or its deposit for the owner, when the property has remained unmolested, and the court will not in such case compel the payment of the compensation found, by mandamus.</p>

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

<p>1. Contract—when a party may abandon, and sue for what has been done under it. Where one party fails to perform his part of a special contract, which prevents the other from performing his part, the latter may abandon the contract and bring assumpsit for what he has done under it, if that action would lie but for the special agreement.</p> <p>■ 3. And if one party has performed the contract substantially, or has performed part, and the balance is waived, or prevented by the other party, and the part performed has been accepted and appropriated, the party so performing may sue upon the contract and recover for what he has done, according to the contract price; but where the suit is not brought on the contract for work done in conformity with its terms and accepted, the recovery can only be for the value of the services rendered, without reference to the contract.</p> <p>3. Evidence—experts not required, to prove custom or usage. Where the plaintiff, to show he was employed by the defendant to superintend the construction of a building, proved by witnesses a custom that the employment of an architect to make plans and designs for a building, carried with it an employment to superintend its construction, it was held, error to refuse to allow the defendant to show there was no such custom, except by architects. Such custom must be as well known to builders and contractors as to architects, and does not require special skill or science to know of its existence.</p> <p>4. Custom—requisites, to affect contract. A custom or usage, to affect a contract, must not be in opposition to any principle of general policy, nor inconsistent with the terms of the agreement between the parties, or against the established principles of the law. Besides this, it must be generally known and established, and so well settled and so uniformly acted upon as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to it and in conformity with it.</p> <p>5. Same—must be ancient and notorious. An instruction informing the jury that if there was a custom among architects in a city at that time (the time of making a contract), that it entered into the contract, etc., is erroneous in ignoring the indispensable element of notoriety and ancientness, and authorizing the jury to act upon it, however recent its origin or however unknown to the public it may have been.</p> <p>6. Instruction—assuming fads. An instruction which assumes that there was some general custom or usage, instead of leaving that fact to be found by the jury, is erroneous.</p>

Henry Booth, Judge, presiding. On the 10th of April, 1872, the General Assembly of this State passed an act, entitled “ An act to provide for the incorporation of cities and villages.” (Rev. Stat.… Held: and contained nothing in regard to the question of minority representation. On the 16th of April», 1875, the common council passed another resolution, fixing other places for holding said election than those specified in the resolution of the 4th of January, above named.

<p>1. Record—what is pa/rt of. The papers of a cause, when filed, under our statute, become a part of the record, and transcripts are made by copying files and the orders of court as entered of record by the clerk.</p> <p>2. Records—proof of, in different courts. While it is improper in the clerk of a coral to allow the records or files in a cause to be taken from his custody to be used in the courts of a different county, yet if they are produced in another court and identified, they are admissible in evidence.</p> <p>3. Pleading and evidence—variance. Where a declaration upon a replevin bond alleged that, the replevin suit coming on for trial, it was considered and adjudged that the plaintiff take nothing by his suit, and that the court awarded a return of the goods, etc., and gave judgment for the defendant thereon against the plaintiff for one cent damages and costs of suit, and the record produced showed simply a dismissal of the suit for failure to give security for costs and judgment for costs and return of the property: Held, that the variance was not material.</p> <p>4. Where an instrument in writing or a record is not the foundation of the action, a variance is not material, unless the discrepancy is so great as to amount to a strong probability that it can not be the instrument or record declared on.</p> <p>5. Replevin bond—of the declaration. The material facts to be alleged in a declaration on a replevin bond are, the termination of the replevin suit, and judgment for costs in the defendant’s favor, and the order for the writ retorno hábendo. It is wholly unimportant what led to that result, or in What phraseology it was declared.</p> <p>6. Same—right to question judgment in suit on bond,. A plaintiff in replevin, by suffering his suit to be dismissed, loses all right to contest the claim of the defendant in replevin to the property except that given him by the statute, which is to plead and prove his title to the property in mitigation of damages. He can not contest the validity of the judgment or execution under which the property was taken.</p> <p>7. Same—proof when defendant pleads title, etc. WThere a party’s goods have been seized under execution against another, and he replevies the same, and his suit is dismissed with retorno, and suit is brought upon his bond, and he pleads that the merits of the action were not tried, and sets up his title to the property, the burden of proof is on him to prove his title; and if he shows a prima facie case, the other party may disprove it by showing that his title was acquired to hinder, delay or defraud the creditors of the defendant in the execution, and this whether the execution was issued on a valid or invalid judgment.</p> <p>8. Evidence—-files of replevin suit in suit on bond. In a suit upon a replevin bond, the affidavit, declaration, writ and indorsements thereon, and other papers and files in the replevin suit, when identified, and the judgment, are admissible in evidence on behalf of the plaintiff.</p> <p>9. Practice in Supreme Court—emery error will not reverse. Trifling errors in the admission of immaterial evidence and in the giving of instructions which did not interfere with the substantial justice of the case, where justice is done by the verdict, will not be grounds of reversal</p>

<p>1. Mabbied women—right to contract. A married woman has the legal right to bind herself for labor and materials furnished in the erection of buildings upon her separate property. On a contract for the erection of buildings upon her property with her knowledge, consent and approval, she and her property will be liable for the debt so incurred.</p> <p>3. Mechanic’s lien—'parties defendant. Where a petition to enforce a mechanic’s lien for labor and materials in the erection of a building upon real estate of a married woman, alleges that her husband has some interest in the premises, which is admitted by demurrer, he will be a necessary party for the purpose of cutting off his interest by the decree.</p> <p>8. Same—decree against husband, for wife's debt. Wliere labor is performed and materials furnished for a married woman in erecting a building upon her real estate, it is erroneous to render a personal decree against her husband for the payment of the debt, although it may appear he has some interest in the premises.</p>

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

Hiram H. Cody, Judge, presiding. This was a bill in chancery, by Samuel McCarty against Gideon Marlette, Sarah M. Marlette, James West, and Jennie Marlette, to set aside the sale and conveyance by complainant to Gideon Marlette of certain real estate in the city of Aurora, in this State, on the ground of fraud. The court below dismissed the bill.

<p>Negligence—no recovery for death where deceased was guilty of gross negligence. Where a person was killed by a train at a railway crossing which was difficult to cross, and dangerous, was perfectly familiar with this fact, yet attempted to cross the same with a team about the time a regular train was due, without looking to see if the train was in sight, it being in the daytime1 and the whistle was sounded ninety rods distant from the crossing, and the bell rung continuously, and an alarm sounded some twenty-five rods before reaching the crossing, when the deceased was upon the track, and he then discovered the train for the first time, and before he could get off was killed, the company using every exertion to prevent the accident, it was held, that the negligence of the deceased was so great as to preclude a recovery, even though the company was derelict in not making the crossing safe and easy to get over.</p>

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

E. S. Williams, Judge, presiding. This was a bill in chancery, by the International Bank of Chicago, against James H. Bowen, Ira Holmes and others, to foreclose a deed of trust. The material facts of the case are stated in the opinion of the court.

<p>1. Agency—acts of agent, Iww far binding. The acts of a general agent, or one whom a man puts in his place to transact all his business of a particular kind, will bind the principal so long as the agent keeps within the scope of his authority, though he may act contrary to his private instructions.</p> <p>3. Contract—affected by general custom. Where a general custom exists, the presumption is, that the parties to a contract are acquainted with it, and contract in reference to it.</p> <p>3. Same—custom as affecting agent's authority. Where a party contracts with a general agent of an insurance company, with knowledge of a custom prohibiting the agent from making such a contract, he can not hold the company bound under the contract.'</p> <p>4 Agency—defined and limited by custom and usage. Where an agency is exercised in respect to matters governed by known usage, it wall be presumed, in the abseiace of proof to the contrary, that the agency is to be con-' ducted in the manner and according to the practice which are allowed and justified by such usage.</p>

Joseph E. Gary, Judge, presiding. This proceeding was instituted by appellant against appellee, as sheriff of Cook county, for the purpose of having him attached, and punished for contempt, in not selling certain goods and chattels, in his hands, levied upon by an attachment and special execution.

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

<p>Appeal from the Superior Court of Cook county; the If on. W. W. Farwell, Judge, presiding.</p>

This was a bill in chancery, by Abraham B. Wing and J. Whitney Farlin, against Catharine L. Dodge, personally and as guardian of John C. Dodge, Andrew J. Brown, Albert J. Averill, John J. McKinnon, John W. Marsh and John C. Dodge, to enjoin the collection of notes given for the purchase money of lands sold under a decree of court, and to set aside the sale.

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

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

<p>1. Puocess—how far a justification to an officer serving the same. An officer armed with a writ of restitution issued by a justice of the peace in a forcible detainer suit, where the justice lias jurisdiction, may enter tlie premises forcibly in order to execute the writ, and, having so entered, it is his duty to remove whatever chattels or property may he in the house, doing as little damage as possible to effect the purpose, and which will he the natural consequence of liis duty to remove the same, and he will not be liable, unless he shall wantonly injure the chattel property.</p> <p>2. Writ of restitution—when a protection as against one not a party to the suit. Where judgment is rendered in favor of a landlord against his tenant for the possession of demised premises, in an action of forcible detainer, for holding over after the expiration of the term, and such tenant, by collusion, sublets the premises to another person, lie remaining in the same as before, and the subletting is secret and unknown to the landlord at the time of the suit, and such sub-tenant is dispossessed, the latter will not be entitled to maintain an action against the landlord and officer in trespass for executing the writ of possession; and the same rule applies if the subletting- is a more pretense to hold the possession through another.</p> <p>3. Evidence—marriage may be shown by reputation. Proof of actual marriage is required iu two cases only: in a prosecution for bigamy, and in an action for criminal conversation. In other cases the presumption of marriage may be indulged in from cohabitation, name, reputation, and other circumstances.</p> <p>4. In trespass by a woman for breaking and entering her house, removing her goods and chattels, and dispossessing her under a writ of restitution, issued upon a judgment in a forcible detainer case against the lessee after the expiration of the term, the plaintiff claimed to he a sub-lessee, although the original tenant still continued in occupancy as before and furnished the supplies; on the trial the defendants offered to prove, by general reputation in the neighborhood, that the original tenant and the plaintiff', if not., in fact, married, were cohabiting on the premises as man and wife, which the court refused to admit: Held, that the court erred in rejecting the evidence.</p> <p>5. Forcible detainer—when sub-lessee bound, by judgment to which he is no party. Where a tenant of a demised building secretly sublets the same to another person living with him, without the knowledge of the landlord, and both occupy the premises as before, and such sub-lessee, when examined as a witness on the trial of an action of forcible detainer against the original lessee, makes no claim to the property, the sub-tenant, after judgment for possession, will not bo allowed to interfere and set up her rights there for the first time, but will he bound by the judgment.</p> <p>0. Measure of damages—dispossessing sub-tenant under writ against tenant. A sub-lessee of a hoarding house, having no right to the occupation of the premises after the expiration of the original lease, if expelled on process to which he is no party, is not entitled to damages arising from being deprived of liis business of keeping hoarders in the premises. He can, at most, recover only for the actual injury done to his property in removing the same from the premises.</p> <p>7. Trespass—expulsion under writ against another. If one not a party to an action of forcible detainer against a tenant is expelled under a writ of restitution, and such-parly is not, in fact, a sub-tenant, but was occupying the promises with the tenant, or for him, or under his lease, then such party can not recover in trespass for being dispossessed, when the court issuing the writ had jurisdiction.</p>

<p>1. Corporations—power to levy taxes, etc., strictly construed. With quasi corporations, such as commissioners of highways, the rule obtains that their power to impose taxes or incur indebtedness will be strictly construed. Municipal corporations have no inherent power to levy taxes, and the grant of power must be plain and unmistakable.</p> <p>2. Commissioners of highways—power to levy tax. The commissioners of highways, in discharging their duties, are required carefully to estimate the sum necessary to be expended in their township for roads and bridges for the ensuing year, and to levy the same, if it does not exceed forty cents on the §100 worth of taxable property, and return the same to the county clerk on or before the Tuesday next preceding the annual meeting of the board of supervisors, in September. They are limited to what will be required in defraying the cost of keeping in repair the roads and bridges for the ensuing year.</p> <p>3. If the levy of forty cents on the §100 worth of taxable property is not sufficient, they must call upon the people to vote an additional amount, which is limited to sixty cents on the §100, or for power to borrow money.</p> <p>4. Same—power to contract debts. The commissioners of highways being- powerless to borrow money, are equally so to contract indebtedness, except that they may have such work done and repairs made, and give orders on their treasurer, to the extent and not beyond the amount of tax already actually levied by them. After this levy is made they may incur indebtedness in the discharge of their duties, before its collection.</p> <p>5. Same—when estimate to be made. The fiscal year commences with the Tuesday preceding the annual September meeting of the county board, and it is at that time the commissioners are required to make their estimates, and levy of the tax, to meet the expenses until the corresponding period of the next year.</p> <p>6. Tiie commissioners of highways have no legal power to incur indebtedness for road and bridge purposes, in any fiscal year, beyond the amount of the taxes already levied for that year. In other words, they can in no one year expend lawfully more than the tax levied for that year.</p> <p>7. Road tax—application on prior indebtedness. The road and bridge tax levied for any given year is legally applicable in payment for labor performed and expenditures made on the roads and bridges during that fiscal year, and can not rightfully be applied to any other purpose, even to the payment of prior indebtedness.</p> <p>8. Where the commissioners of highways, in 1874, levied a tax of forty cents on the §100 worth of taxable property, which amounted to §1782.39, there being a prior indebtedness of §1000 unpaid, and during the year and before the tax was collected, contracted for the erection of piers for a bridge, it was held that they had the legal authority to make such contract and pay the contractor out of the tax levied, when collected, without reference to the prior indebtedness.</p>

<p>1. Limitation—new promise, to avoid ba/r. The burden of proving a promise to pay a debt barred by the statute, within five years, is upon the creditor seeking to enforce his claim. Proof of a promise to pay in 1865 or 1866, the witness thinking it was probably the latter year, when if it was before August, 1866, it was not within the five years, is not sufficient proof to take the case out of the statute.</p> <p>2. Same—promise to unauthorised person not sufficient. A promise to pay a debt, made to a person not legally or equitably interested in the same, and who does not pretend to have had any authority from the creditor to call upon the debtor in relation to the debt, will not avoid the bar of the statute.</p> <p>3. Where A was indebted to B, and B to C, and the latter being anxious to collect his debt, but, without the authority of B to negotiate or act for him, called upon A, and inquired as to his indebtedness to B, with a view thereby of getting money to enable B to pay him, and A promised C to pay the debt he owed B, it was held, that C was not legally or equitably interested in the debt thus promised to be paid, and, not being authorized by B to act for him, the promise made by A to C could not take the debt out of the bar of the statute.</p>

<p>Practice—affidavit of claim—authority of officer taking must appear. It must appear that the officer administering the oath to an affidavit of claim filed with a declaration was authorized to do so, or the affidavit will he a nullity; and no affidavit of merits will he required with the plea.</p>

<p>Appeal from the County Court of Cook county; the Hon. Mártir E. M. Wallace, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Lion. Josiah MoEoberts, Judge, presiding.</p>

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

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