Volume 9 — Illinois Appellate Court Reports

<p>1. Mechanic’s men. — A contract made with the husband, for the erection of buildings upon land belonging to his wife, will not subject the land of the latter to a lien unless the husband was acting as the agent of his wife, or she has done some act by which she is estopped from asserting her rights.</p> <p>2. Estoppel. — The'mere fact that such a contract was made in the presence and hearing of the wife, and tho improvements were made under her daily inspection, will not make her liable upon a contract made with another who was not her agent.</p>

<p>1. Bailment — Delivery to agent oe bailor. — Where the bailee of property delivered it to the agent of the bailor, acting under instructions from his principal, and the agent paid the bailee his charges for keeping the property, it is a good delivery, and the bailee is discharged from any further liability in respect of such property.</p> <p>2. Agency — What will create. — Appellee having left a horse in charge of appellant, asked one H. if he would take the horse from appellant and sell it for him if he (appellee) wrote him to do so, and was told by H. that he would. He afterwards wrote H. to sell the horse, which was done. Held, a complete contract of agency.</p>

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

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

<p>1. Rights oh married women. — By the statute of 1861, and amendments, the rights of the wife in respect to her separate property, were entirely changed. The disability of marriage was removed, and for all purposes of acquiring, managing and disposing of her property, contracting or being contracted with, she became a feme sole. She acquired a legal standing in courts of law that she did not before possess.</p> <p>2. Remedy at law. — The remedy for an injury to the property of a married woman by her husband, although formerly in equity, is now at law, and is not the proper subject for the interference of a court of equity, unless it is necessary to prevent irreparable injury.</p>

<p>1. Fraudulent 'conveyance — Cross-examination oe party — Inquiry as to source oe money claimed to have been paid. — In a case where the claimant of property sought to be reached by creditors is a minor son, who claims to have purchased from his father real and personal estate on Which he has paid over $6,000, it is competent to ask the claimant from whom and how he obtained the money to make such payment, and his answers to such questions should be given without equivocation or evasion.</p> <p>2. Deposition — Suppressing-.—A refusal to answer freely questions relating to the source from which the claimant obtained the money alleged to have been paid, in such cases, is sufficient ground for suppressing the deposition of the claimant.</p>

<p>1. Indictment — Trial without ple a. — Where a defendant never plea d-ed to an indictment, nor consented to a trial without a plea, a judgment of Conviction is erroneous. There was no issue for the jury to try.</p> <p>2. Indictment for riot — Conviction for assault. — Under an indictment for a riot, a defendant cannot he convicted of an assault.</p>

<p>Appeal from the County Court of Coles county; the Hon. J. E. Cunningham, Judge, presiding.</p>

<p>1. Bond fob costs — Suit in name of the people. — In an action brought in the name of the People for the use of a county, to recover a penalty for obstructing a public road, no costs can be recovered if the plaintiff be cast in the suit, and hence no bond for costs can be required of the plaintiff prior to commencement of suit.</p> <p>2. Costs against county. — In a suit in the name of the People for the use of a county, to recover a penalty, no costs can be taxed against a county in case the defendant is found not guilty.</p> <p>8. Popular action. — Such a suit is not a popular action within the meaning of the statute requiring security for costs.</p> <p>4. Practice. — A stipulation of facts which states that the weight of evidence shows the existence of certain facts, will not be recognized, as a substitute for a bill of exceptions containing all the evidence, in determining questions depending upon evidence.</p>

<p>Appeal from the County Court of McLean county; the Hon. K. M. Benjamin, Judge, presiding.</p>

<p>1. Bill 01? lading — Assignment.—While a bill of lading is not a negotiable instrument in the sense in which a bill of exchange or promissory note is negotiable, yet as the representative of a valuable commodity, it is assignable to the party entitled to control the possession of such commodity to the same extent and for the same purposes as the property itself would be; and innocent holders thereof for value, ought to receive the same protection as if they held possession of the property itself.</p> <p>2. Common carrier — Wrongful delivery of bill of lading. — In an action against a comm in carrier for goods received by it and delivery of a bill of lading to a consignor who was not the owner of the goods nor entitled to possession until the property was paid for, it does not matter that the carrier had no notice of such agreement between the owner and consignor, as it only succeeded to such rights of possession as the consignor had, a.i l being but a bailee, the carrier was in possession for whomsoever it might concern.</p> <p>3. As a general rule, bills of lading issued for property not yet on board, are void.</p>

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

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

<p>Error to the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.</p>

<p>On remanding order from Supreme Court.</p>

<p>Principal and surety — Plea of time extended. — A plea that defendant was security only for his co-defendant, and that the time of payment had been extended by the payee to the principal for a good consideration without the knowledge or consent of the surety, presents a good defense.</p>

<p>Error to the Circuit Court of Macoupin county; the Hon. J. R. Welch, Judge, presiding.</p>

<p>1. Landlord and tenant — Denial of title. — Although a teuaut caunot dispute the title of his landlord, yet in a suit for rent he may show that he has acquired the title of his lands by conveyance to him, and it makes no difference whether the conveyance is directly from the landlord, or frrm a trustee duly autl'orized to sell and convey the title by a former owner, provided the same is a lien prior to the rights of the landlord.</p> <p>2. Purchase by tenant under prior title. — A tenant, when sued for rent, may show a title acquired by purchase at a trustee’s sale under an incumbrance prior to the title of his landlord. In such case the tenant does not dispute the landlord’s title, but recognizes and holds under it, and hav-t ing acquired it, he becomes entitled to rents accruing after the execution of the deed.</p> <p>3. Accruing rent passes with the deed. — The landlord is entitled to rent accrued before the execution of the deed, but accruing rent not then matured passes with the title and vests in the purchaser.</p> <p>4. Judgment in forcible detainer no bar to claim for rent.— The judgment against appellant in the action of forcible detainer determined only the right of possession; it was not an adjudication against her right to the rent claimed as purchaser under her deed.</p>

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

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

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

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

<p>Mortgage — Foreclosure—Correcting error in record. — The bill of complaint goes upon the theory that the mortgage sought to be foreclosed correctly described the land, but was incorrectly recorded, but the evidence going to show that the mortgage was correctly recorded, but had been fraudulently altered so as to embrace a different tract of land, the decree for complainant cannot be sustained.</p>

<p>Compromise. — The compromise of a doubtful right, fairly obtained, is a good consideration on which to found a contract, and it does not matter what the ultimate result might have been. So, where appellee claimed the property in question as her own, but on the day of sale agreed that if certain articles were surrendered to her she would take them in full settlement of her claim to the property, and it was done; she is bound by such agreement, without regard to the fact whether the property surrendered belonged to her or not.</p>

<p>Amendments — Whether statin® new cause of action — Statute of limitations-. — A plaintiff may restate his cause of action by way of amendment without its being obnoxious to the objection of introducing- new causes of action. So, where plaintiff, within the time limited by the statute, declared against a railroad company for damages for causing the death of his intestate, an amendment afterwards made, setting up that the deceased left surviving him a widow and children, it is not a setting up of a new cause of action.</p>

<p>Error to the Circuit Court of Pike county; the Hon. S. P. Siiope, Judge, presiding.</p>

<p>1. Banks — Payment of ciieok in excess of deposit. — W'tnout an especial arrangement to that effect, a bank is under no obligation to pay checks of its depositors in excess of their deposits.</p> <p>2. Collection of checks by banks. — When a bank receives from a depositor a check upon another bank for collection, if the collection fails without fault of the bank receiving it for collection, the latter his the right to return the check and cancel the credit given to the depositor for the amount.</p> <p>3. Custom — Immediate examination of checks deceived on exchange. — The evidence fails to prove the existence of a general and uniform custom among the bankers where this transaction occurred, to make immediate examination of checks brought in for exchange, and the return of such as are dishonered, and the court is of opinion that reasonable diligence in examination and notice of dishonor was had in this case.</p>

<p>Contracts of insane person — Note.—In this case, insanity, both be- • fore and. after the execution of the note, is shown to have existed, so near to that event as to leave but a very few hours for a lucid interval to have intervened. The peculiar character of the mania was such as to have led the maker of the note to do the very act, in a moment of insanity, which it is insisted he did in a lucid interval. The rule of law is, that when insanity is once shown to exist, it is presumed to continue until the contrary is shown. The maker of the note was not a free or responsible agent and the note must be held void.</p>

<p>1. Penal action — Burden of proof. — This was an action to recover a penalty for a failure to take out a license as required by the city ordinance. Being in the nature of a penal action, it is incumbent upon the plaintiff to prove every step in the chain of facts upon which its right of recovery rests.</p> <p>2. License — Must be an ordinance authorizing its issue. — Although a city has the power to require a license, yet this power remains dormant until called into activity by some appropriate ordinance. Without the adoption of a general ordinance authorizing the issuing of licenses, specifying who shall issue them, the length of time they are to run, the amount to be paid, and the time and m inner of payment, the authorities are powerless to issue license to any one, and proof of such an ordinance must be made in an action to recover a penalty, as in this case.</p>

<p>1. Practice — Stipulation—Final order. — By agreement of parties the cause was submitted to the court for hearing in vacation, the judgment of the court to be rendered mine pro tunc as of the term when stipulation filed. Hearing was had in vacation, and afterwards judgment reversing the order of the county court was rendered nunc pro tunc, with an order that the parties have a right of appeal within ten days from date of the order. Held, this was a> final order,- binding upon the parties, subject only to the right of appeal.</p> <p>2. Granting new trial. — The judgment not being appealed from within the time limited in the order, it became final, and it was error to set aside such finding and order and grant a new trial upon motion made at a subsequent term of court.</p> <p>3. Appeal — What questions brought up. — An appeal from a subsequent order of the court strikiug the cause from the docket, after granting a new trial, will not bring up for consideration the merits of the case, the same as if an appeal had been taken from the original judgment of the court.</p>

<p>Bill of exceptions — Stipulation cannot be substituted fob. — The statute imperatively requires the signature and seal of the judge to the bill of exceptions, before it shall become a part of the record, and the stipulation of parties that a certain document shall stand for a bill of exceptions, cannot obviate this positive requirement.</p>

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

<p>1. Trust. — The court is of opinion that the evidence fully establishes the fact that the property in question was purchased by plaintiff in error’s husband, with her money, and a resulting trust created in her favor.</p> <p>2. Possession as evidence of title. —Where the husband of plaintiff in error purchased property with money furnished by her, but took the deed in his own name, occupied the premises for a number of years, and then mortgaged such premises to secure his individual debt, held, that the legal title and actual possession being in the husband, the mortgagee should not be held to a constructive notice of the equities of the wife.</p> <p>3. Allegations and proof. — A complainant cannot allege one case in his bill and make proof of a different case. So, where the allegation was that the mortgage had been given with notice to the mortgagee of complainant’s equities, and was a cloud upon her title, proof that the mortgage and notes were given to compound a felony was not proper. There can be no issue in a matter of fact unless it is first raised by the bill.</p>

<p>1. Bank check — Transfer of funds. — The rule in this State undoubtedly is, that when a depositor draws his check on his banker, who has funds to ati equal or greater sum than his check, it operates to transfer the sum named in the check to the payee, who may sue for and recover the amount from the hank; a transfer of the check carries with it the title to the amount named to each successive holder.</p> <p>2. Check payable in exchange — Banker not liable. — But a hanker is not hound to pay the check of a depositor drawn payable in anything hut money. Whether he will give exchange upon the request contained in the check is matter of agreement. So, where a depositor drew a check upon his banker for Chicago exchange which he was to send to his creditors at their request, the latter cannot, upon failure of the depositor to send the Chicago draft, maintain an action against the banker upon the original check drawn upon him. In such case there could be no intention that the creditors should have a sum set apart to their use or credit in the bank.</p> <p>3. Depositor not agent oe creditor in drawing check. — The depositor cannot be considered as the agent of his creditors in drawing the check in such a case; but even if he were, he must also have been their agent in receiving the exchange, and having received it, the purpose of the check was accomplished, and their remedy, if any, would he upon the draft received for the check. • '</p> <p>4. Stopping payment of draft. — Payment of the exchange draft not being provided for by the depositor, and the draft not having been received by the creditors, and no claim to recover upon it being asserted by them, they cannot complain that the hanker, after the depositor had absconded, stopped payment of the draft by the Chicago bank.</p>

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

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

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

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

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

<p>1. Partnership — Dissolution.—The rule of law is that the partnership in any business ceases when there is an end to the business itself.</p> <p>2. New contracts aeter dissolution. — After dissolution of a partnership the authority for malting new contracts is completely revoked. The giving of a promissory note, or the acceptance of a bill of exchange or draft, is the making of a new contract, although it may be for a prior debt.</p> <p>3. Authority op one partner to guaranty note. — One member of a firm, by virtue of the partnership, has no legal right to sign the firm name as surety or guarantor for a third party, and if he does so, the act, as to the members not consenting, will be a nullity.</p> <p>4. Notice to payee — Burden op proop op authority. — The fact that one member of a firm signs the firm name as guarantor to a promissory note, is notice to the payee of such note that he is signing such name outside the scope of the partnership business, and it will not bind the firm unless some authority other than the mere fact of partnership or a subsequent ratification is shown. The burden of showing such authority rests upon the payee of the note.</p> <p>5. Authority ceases on dissolution op pirh. — The evidence of authority to sign the firm name as guarantor is unsatisfactory, but even conceding that such authority once existed, it ceased at the time the firm ceased to do business, and the subsequent signing as guarantor upon a renewal of the original note, cannot bind the members of the firm not consenting. The signing being under color of the partnership, notice of its dissolution is sufficient notice that the guaranty was signed without authority.</p> <p>6. Notice to payee op dissolution. — Where a firm is dealing with a person in due course of business of the firm, and a dissolution takes place, notice to such party of the dissolution of the firm is necessary in order to release the firm from liability, where other credit is obtained in the regular course of business after dissolution, but where the transaction is not in the regular course of business, no notice is necessary.</p>

<p>Principal and agent — Payment to agent. — Where an agent is employed merely to solicit orders, the orders being sent to the office of the principal subject to the approval of the latter, this fact alone sufficiently shows that the agent had no power to make collections, and a payment to him is no defense to an action by the principal to recover the amount of the sale from the vendee.</p>

<p>1. Evidence — Statement of party in his own interest. — The controversy was as to payment of certain notes, which payment was denied by appellants. Appellee testified that he paid the notes to one C., and on receiving them went to the stove and threw them in, saying they would not bother him any more, and telling the bystanders they were the Deere and Grand Detour notes. The same remarks of appellee were testified to by the bystanders. These statements were made after O. had left: Held, the testimony as to what appellee said was inadmissible. It was but hearsay.</p> <p>2. Instructions will not always curb error. — Where the evidence is well calculated to make a. strong impression upon the jury, its improper admission is not cured by an instruction to the jury to disregard it.</p>

<p>1. Practice — New objection on re-hearing. — Upon an application for a re-hearing, new points or objection's made for the first time on the petition for re-hearing, will not be considered.</p> <p>2. ■ Delay in delivery — Recoupment oe damages. — Where there is an executory contract of purchase, the article bought to be delivered by a time . certain, and there is a failure on the part of the vendor to make delivery according to the contract, the vendee is entitled, when sued for the price of the article sold, to recoup any damages he may have sustained by reason of the failure to make del very as agreed. ■</p> <p>3. Dependent contracts. — Where the contract on the part of the seller was to deliver a specified number of staves in each month, and on the part of the buyer to pay at a specified rate per thousand, the first payment to be made within thirty days after the first load was delivered, the balance in installments of $450 each succeeding thirty days, it is not such a mutual, dependent contract, as will make a failure to pay any installment a condition precedent to the delivery of another lot of staves, and thereby give the seller a right to rescind the contract.</p> <p>4. Recoupment. — The court is of opinion that there was sufficient evidence in the record in this case upon which a finding in favor of appellant upon the question of recoupment could be based, and it should have been submitted to the jury.</p>

<p>I.. Stipul vtion — Construction.—Appellant filed a hill agninst appellees to have a certain deed declared an equitable mortgage, for leave to redeem, etc. Appellees answered, setting up full title in themselves and denying appellant’s equitable title. Pending the suit, the cause was referred to a master, by stipulation of parties, stipulating that an account should he taken •■of all matteri of d.lf crime, “ except the title to the land in question,” and that on confirmation of the report a decree be entered that complainant pay the amount found due, if any, and upon such payment, appellees convey said, land to complainant. It was further stipulated that the question whether the trasaction amounted to an equitable mortgage should not be submitted to the master or considered by the court in passing upon the master’s report. Held, that the stipulation must be construed with reference to ths case made by the bill of complaint, and that by the stipulation appellees yielded to the claim of title as made out by appellant, and they should be treated as mortgagees in possession.</p> <p>2. Mortgagee in possession — Account po a profits. — A mortgagee in possession is required to account for actual receipts, less such sums as he may have paid out for taxes and necessary repairs, unless the evidence shows that .by reasonable diligence more could have been realized.</p>

<p>1. Joint toet-feasobs — Contbibution.—In certain cases of torts and trespasses courts will not interfere to equalize burdens, but there are so many exceptions to the rule that it has ceased to be a general one. So, where the alleged fraud or wrong consisted in an attempt to deprive one of a lot of land unjustly, but which did not succeed, the rule of no contribution between wrong-doers, will not apply. It is not like a case of trespass or negligence, the result of which is an injury and the grounds of recovery.</p> <p>2. Afpoetionment of payment — Death of one defendant.— Where two are sued upon a joint account or cause of action, and pending the action one dies, devising his estate to two legatees, who are then made parties defendant, the proportion which each defendant would have to pay ig not changed. The legatees jointly coiild not be required to pay more than their ancestor would have been subjected to, had he lived.</p> <p>3. Abuse of process of the court. — Two of the defendants, before execution was issued, paid one-half the decree, which was the amount they were bound to pay, while the other defendant, having paid only a part of the amount he was bound to pay, procured the sheriff to levy upon the other defendant's property, and upon a sale, procured a party to purchase the property. Held, that such an illegal use of the process of the court ought not to be tolerated; that this defendant should be held to have paid Ids own debt, and should be required to deliver up the certificate of purchase to be canceled, as a cloud upon the title of the other defendants.</p>

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

<p>1. Statement. — Appellant, being the owner of a bull, left him in the care of D. for use during the season. D. kept the animal in a well-fenced pasture, where he remained quiet for some weeks, and until, by the agency of appellee’s sons, he broke over into appellant’s and gored appellee’s mare, which was the injury complained of. The action is brought under the statute relating to male animals running at large.</p> <p>2. Negligence — Bailee.—The bailee, and not the bailor, is liable for the trespass of his cattle while in charge of the bailee, unless the bailor has selected an irresponsible bailee, and knows, or has reason to believe, that the cattle would commit the trespass when placed in his care.</p> <p>3. Owner not liable. — Only a reasonable effort to restrain the animal is required, and if no reasonably prudent man would have foreseen this result, then the owner is not liable, even had the animal broken out without the fault of appellee or her agents.</p> <p>4. Duty oe bailee. — If the bailee knew all about the animal, it was his business to keep him secure, but he was only bound to keep him in an enclosure reasonably secure for that purpose, when not interfered with by the agents of appellee.</p>

<p>Landlord and tenant — Occupancy rent free — Verdict against evidence. — The verdict is manifestly against the evidence, and the judgment is reversed. A tenant is not bound to pay rent in the absence of an express agreement that he may occupy rent free. If by the terms of the renting and the circumstances existing at the time both parties understood that no rent was to be paid other than care of the property and repairs, that is sufficient to constitute an implied agreement that no other rent is to be paid.</p>

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

<p>1. Replevin — Filing new bond. — A replevin bond is designed for the security of the defendant, as well as indemnity to the officer, and if the defendant is not satisfied with the bond given, it is in the power of the cornt to require one with the, statutory conditions.</p> <p>2. Obligors estopped. — The new bond was filed without waiting for the court to pass upon the motion therefor. Under such circumstances the makers should not now be heard to say that there was no order of court requiring them to file the bond in suit.</p> <p>3. Non est factum — Non-delivery of bond may be shown under. —The defense that the bond in suit was never delivered can be shown under the plea of r>on est factum.</p> <p>4. Damages — Failure to return property. — If the sheriff had taken the property upon execution, and held it for the purpose of satisfying the execution debt, and the plaintiff in the replevin suit was the general owner of the property, subject to such execution lien, the measure of recovery upon the bond would be limited to the execution debt and costs, if less than the value of the property; but if the debt and costs exceeded the value of the property, he would be entitled to recover to the same extent as any plaintiff who had obtained an order for the return of the property under a plea of ownership.</p> <p>5. Showing amount of execution — Presumption.—The defendants not showing what the amount stated in the execution really was, the presumption will be indulged that it exceeded the value of the property in controversy.</p> <p>6. Damages for conversion. — The general rule of damages for the wrongful conversion of property, is the fair market value of the property at the time of the conversion, with interest from that time.</p> <p>7. Value of property in replevin. — In actions of replevin the value of the property is notin issue; the contest is over the specific article. Therefore under our practice, the value of the property is never included in the assessment of damages upon the termination of the replevin suit in favor of the defendant. The bond stands in place of the property, and in contemplation of law is sufficient to compel its return.</p> <p>8. Damages — When property not returned, and value of use is shown. — If the property is such that its use and enjoyment would be of pecuniary value to the defendant, he can have his damages assessed under the statute at the trial of the original suit, or such damages may be assessed in a suit upon the bond, but the recovery of statutory damages precludes the defendant from recovering interest upon the value of the property during the same period.</p> <p>9. Rule where use of property is of no value. — In a case where the use of the property is of no special value, interest upon its value should be allowed as a compensation for the deprivation of the investment of the property.</p> <p>10. Measure of damages for non-return. — Where the property is of greater value at the date of the order for a return than it was at the time of the replevin, the defendant should be allowed for such increased value of the property when taken, and the interest thereon.</p>

<p>1. Liability of master for torts op servant — Rule as to common carriers of passengers. — While it is a general rule that where an employe goes outside the line of his employment, and for purposes of his own inflicts an injury upon the person of one who has no claim upon the employer arising from any special relation existing between them, the employer is not liable, yet, in the case of a common carrier of passengers, the rule does not apply.</p> <p>2. Duty of common carrier to passenger. — A common carrier owes a duty to passengers, that they shall, during the transit, be protected from all dangers so far as the efforts of the carrier and its servants can be made available. As to such passenger, the servants of the carrier stand in the place of the carrier, and all their acts so far as they have a direct connection with the performance or non-performance of the earner’s contract, must be held to be the acts of the carrier itself.</p> <p>3. Assault by brakeman. — Where a passenger, lawfully upon a train of cars, is willfully assaulted by a brakeman upon such train, the railroad company is liable for the injury inflicted.</p>

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

<p>Error to the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding. Opinion upon petition for rehearing filed December 15, 1881. For original opinion, see ante, page 148.</p>

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

<p>Statute of Limitations. — Appellant was employed to collect certain outstanding subscriptions due to appellee. This employment was concluded in December, 1872, and the Statute of Limitations began to run from that time. The employment of appellant as gate-keeper for appellee for two or three days in each year subsequent to that time, does not make such a case of mutual accounts as will save the bar of the statute as to a claim for compensation for services rendered under the first employment.</p>

<p>Error to the Circuit Court of Hardin county; the Hon. John Dougherty, Judge, presiding.</p>

<p>School dibeotobs — Execution not to issue against. — It is error to award a general execution against school directors. The statute provides another method of enforcing judgments against such corporations, and this must be pursued.</p>

<p>Appeal prom a justice by one dependant — Dismissal.—Where one of two or more defendants appeals from the judgment of a justice, a summons must issue from the circuit court to the defendants not appealing, or their appearance in circuit court must be properly entered, before the court can take jurisdiction of the appeal. Where such defendant has not been brought in, it is error to dismiss the appeal on call, and render judgment for costs against all the defendants.</p>

<p>1. TsLEQ-BApmc message — Deltveby.—The law requires a telegraph company to make, to say the least, an ordinary and reasonable effort to ascertain where the persons are to whom the message is sent, and a reasonable effort to deliver the message. An instruction that the company is required to deliver such message only at the office of the person addressed, is therefore erroneous; it being in that respect a limitation upon its duty.</p> <p>2. Duty m respect of delivery. — When the company took the money of the sender and contracted to deliver the message to the persons to whom it was addressed, and the sender delivered the message to be sent, his duty in the premises ceased; it then became the duty of the company to transmit the message and deliver it. If it was unable to do either, that is matter of defense to be shown by the company, and it is error to instruct the jury that the plaintiff, before he can recover, must show that the person to whom it was addressed was at his office ready to receive it.</p> <p>3. Company must show dilisence. — It is incumbent upon the company to show, at least, that it used ordinary care and diligence in attempting to deliver the message.</p>

<p>1. Road tax — To whom paid undeb sec. 119. — The tax provided for by section 16 of the road law of 1879, and those provided for by section 119 of the same law,' are different and distinct taxes. The former, where levied upon property within a municipal corporation, is payable to the municipal authorities; while the latter are payable to^the treasurer of the commissioners of highways.</p> <p>2. Special chakteb oe town. — The charter incorporating the town of Highland, provided among other things that the tax levied for road purposes upon property within a radius of one mile outside, the limits of such town, should be paid to the municipal authorities; and also imposed upon such town the burden of keeping the roads and bridges within such radius in repair. Held, that the tax contemplated by the charter was identical with that mentioned in section 16 of the road law, and was not such a tax as is contemplated by section 119.</p>

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

<p>1. Railroads — Sounding whistle. — An instruction that if the jury find that the defendant neglected to sound the whistle or neglected to ring the bell, etc., then this is evidence of gross negligence is erroneous, as the jury may have inferred that both requirements were necessary, whereas the statute requires only one.</p> <p>2. Instructions. — An instruction which assumes to be a complete statement of the facts, must state all the facts fully, and where there is evidence tending to prove a fact having an important bearing upon the law of the case, even though strongly contradicted, it is erroneous to ignore such evidence in an instruction.</p> <p>3. Negligence a fact for the jury. — It is error to direct the jury as to what constitutes gross and slight negligence. This is a fact for the jury to find.</p> <p>4. Duty of person crossing track. — It is incumbent upon a person approaching a railway crossing, to exercise care and caution by looking and listening for approaching trains-; it is his imperative duty to do so, and a failure in that respect is regarded as unusual negligence.</p>

<p>1. Removal of cause. — Where petition for removal of a cause from a state to a Federal court is properly made at the first term at which such cause could he tried; is accompanied with the bond required by law, and no objection is made as to the form of the bond or sufficiency of the sureties, the presumption will be indulged that it was such a bond as the act of Congress requires, and it is the duty of the court to make the order for removal.</p> <p>2. After petition filed state court has no jurisdiction. — It is now well settled that after a petition for a removal has been filed, the state court can do nothing to affect the rights of the parties. Its jurisdiction ceases eo instanti.</p> <p>3. Examination of sureties. — Whether a state court may not inquire into the sufficiency of sureties on the bond, or whether the petition is a compliance with the Federal statutes, is not decided.</p> <p>4. Petitioner doing business in this state. — The fact that the petitioner for removal was a corporation doing business in this State, or that the general issue had been filed in the cause, will not affect the right of removal.</p>

<p>1. Removal oe cause. — In applications for removal of causes from a State to a Federal Court, if the case comes within the act of Congress, and the petition is in due form accompanied with the required bond, the State court must accept the petition and bond, and proceed no further in the case. Every subsequent step by the State court other than the necessary orders for removal, is coram non judice. The State court cannot inquire into the real amount claimed by the plaintiff, in order to reduce the sum demanded below five hundred dollars.</p> <p>2. Set-off — Nonsuit.—After a plea of set-off is filed, the plaintiff cannot take a non suit without the consent of the defendant.</p>

<p>Evidence — Declarations of directors when not in office. — The declarations of an agent made out of the, course of the agency, when the agent is not acting for the principal in the transaction concerning which they are piado, are not admissible against the principal. So, the declarations of school directors made after they have retired from office are not admissible against the district.</p>

<p>Appeal from 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>1. Sale — Articles to be weighed. — A sale of specific articles by weight, the price being agreed upon, may be a complete sale, although the articles have not been weighed.</p> <p>2. Sale for cash — Present payment. — A cash sale will or will not be a conditional sale, according to the circumstances of the particular transaction. When nothing is said as to when payment is to be made, the law implies it shall be made on delivery; but the vendor may waive his right to immediate payment, and the mere delivery, without demand for payment, will be some evidence of such a waiver.</p> <p>3. Payment as condition precedent — Question of fact. — Payment of the purchase money may by the contract of the parties be a condition precedent to the transfer of title, even where there is delivery of possession to the vendee. Where-the sale is accompanied by delivery, it is a question of fact for the jury, to be determined from the evidence, whether the sale was conditional or unconditional; and it is error to take this question from the jury by an instruction.</p> <p>4. Purchase with fraudulent intent. — The purchase of property with an intent not to pay for it, is fraudulent as between vendor and vendee, and no title passes; and the fraudulent intent may be found from the acts of the purchaser subsequent to the sale, but it is error to instruct the jury that they may infer such fraudulent intent from the fact that the purchaser made an assignment within twenty-four hours after the purchase. The true inquiry should be, was there a fraudulent intent at the time of buying the goods not to pay for them, and this is a question of fact for the jury.</p>

<p>1. Master and servant — Negligence.—In an action against an employer for injuries to an employe, a boy of twelve years, by reason of having an arm caught in machinery where the boy was at work, it is error to instruct the jury that the employe’s knowledge of the danger is not be taken into account, in considering his right to recover, and that he cannot be said to contribute to the injury by knowingly incurring the risk. The law imposes upon such employe that degree of caro and caution which might reasonably be expected from a person of his years and understanding, in the same position, and surrounded by like circumstances.</p> <p>2. Knowledge of danger. — Knowledge of danger not only implies a knowledge of the condition of the machinery, arising from its being open to inspection, but an understanding of the danger, resulting from that condition, and the question of the employe’s knowledge of the danger should not have been excluded from the jury.</p> <p>3. Care — When a question for the court. — It is for the court to declare what degree of care is required of the plaintiff, and what degree of negligence will render the defendant liable; but whether that degree of care has been exercised, or that degree of negligence been proven, are questions for the jury.</p> <p>4. Comparative negligence. — If negligence he imputed to both, then the plaintiff cannot recover, unless, on comparing the negligence of the plaintiff with that of the defendant, the former is found to have been slight and the latter gross, when regarded in the light of such comparison.</p>

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

<p>1. Ordinances — Proof.—Where ordinances are published in pamphlet, form, and state that they are so published by authority of the board of trustees, they are admissible in evidence, without further proof.</p> <p>2. Objections to testimony. — In the introduction of testimony all formal objections that can be cured should be pointed out; it is too late to raise them in an appellate court.</p>

<p>1. Verdict against evidence. — The court is of opinion the verdict is manifestly against the evidence, and the judgment is reversed.</p> <p>2. Instructions. — In an action for injuries caused by being run over by cars, an instruction is erroneous which tells the jury to find for the plaintiff if they believe that without fault on her part, the injury was caused through the fault or negligence of the defendant. This is too general. Attention should have been directed to the specific charges of negligence alleged in the declaration.</p>

<p>1. Indictment — Statement oe oeeense. — Where an information not only charges the offense, but sets out the particular way in which it was committed, the latter part cannot be rejected as surplusage.</p> <p>2. Pateonizins house oe ill-fame — Enmates.—1The patrons of a house of ill-fame, within the meaning of the statute, making it a misdemeanor, are those who go there in the character of purchasers, to be entertained in the way of a bawdy house, and not women who are inmates of such house.</p>

<p>Appeal from the County Court of Randolph county; the Hon. Wm. P. Murphy, Judge, presiding.</p>

<p>Indictment for adultery. — This was an indictment for living together in a s ate of adultery. The cour: is of opinion that the evidence fails to sustain the charge, as defined by the Supreme Court.</p>

<p>1. Railroads — Crossing street. — It is the duty of a railroad company in constructing its track across a street to restore the street to its former state, or to such a state as not unnecessarily to impair its usefulness, and to keep such crossing in repair. •</p> <p>2. Obstructing' streets — Ten-minute limit. — Appellee sued appellant for injuries occasioned by appellant’s cars obstructing the street crossing. The cars in question had been placed or left there by some boys, and without the knowledge of appellant's servants. Held, that the ten-minute rule as found in section 52, chapter 114, revised statutes, has no application in such a case, and it was error to include that element in an instruction to the jury. It is the affirmative act of obstructing the highway that is prohibited by the ab.ove statute, and appellant could not be held liable for an act done by others, unless it had notice of such obstruction and neglected to remove it.</p>

<p>Negligence.— Ippellee was injured while engaged in clearing the ash pan underneath his engine. It was not necessary that it should have been done at that particular time, and the place where the engine was stopped was one of especial hazard. The court is of opinion, from all the circumstances of the case, that the injury was caused by appellee's own negligence, and hence he is not entitled to recover.</p>

<p>Certiobabt — Costs.—This was a proceeding by certiorari to quash the order of appellant attaching certain territory to district No. 5. Upon hearing, the order was quashed, and judgment for costs against appellant. Held, that the judgment for costs was erroneous.</p>

<p>1. Insurance contract — Cancellation. — An insurance company, after the payment- of several premiums, assumed to cancel the policy on the ground that the assured had engaged in a hazardous employment forbidden by the contract. Upon such attempted cancellation of the contract, the assured may elect to consider the contract in full force, and by proceeding in chancery compel its performance, or he may consider it at an. end and sue the company for the breach.</p> <p>2. Measure of damages in the latter case. — In case the assured elects to consider the contract at an end, the measure of damages would be the value of the policy at the time of the forfeiture, which would be the difference between the amount paid and the cost of carrying the risk during the time the contract was in force.</p> <p>3. Beneficiary may sue. — Where an insurance company seeks to cancel its contract of insurance, the beneficiary has a right of action for violation of the contract during the life of the assured.</p>

<p>Appeal from the County Court of Randolph county; the Hon. Sample C. Parks, Judge, presiding.</p>

<p>1. Recoupment. — Mutual demands arising out of the same subject-matter and capable of being balanced against each other, may he adjusted in one action by recoupment. It is not necessary the opposing claims should bo of the same character; a claim originating in contract may be set up againsu ■ one founded in tort, if they arise out of the same subject-matter, and are susceptible of adjustment in one action. So, in an action upon a note given to aid the construction of a railway, the defendant may prove by way of recoupment, damages arising from the constract-ion of the railway across his own lands, in violation of an agreement not to do so, made at the time of giving the note.</p> <p>2. Contradicting writing by parol. — The rule excluding parol evidence in cases of written instruments does not apply in cases where the original contract was verbal and entire, and a part only was reduced to writing; nor where a failm-e or want of consideration is set up as a defense.</p>

<p>1. Banks — Liability of stockholdee at law. — By the charter of the People’s Bank of Belleville, the stockholders were made individually liable to depositors for default of the corporation in making payment of any debt. This was a purely legal liability and the remedy against a stockholder is at law and not in equity.</p> <p>2. Individual liability. — The word “individually" as used in the charter, means separately, and an action can be maintained against a single stockholder.</p> <p>3. Relation of stockholders to each other — Suit by one against-another. — In respect of claims against the bank, the stockholders stand in-the relation of co-partners, and one cannot sue the other at law. If one has: been sued and paid the recovery, he may have contribution from the other stockholders by proceeding in equity, but stockholders cannot by confessing judgments in favor of each other and paying such judgments, evade the liability imposed upon them by law. The provision was made for the protecttion of the creditors of the bank, and not for the stockholders.</p>

<p>Error to the Circuit Court of Jasper county; the Hon. John H. Halley, Judge, presiding.</p>

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

<p>1. Judgment upon scire facias. — A judgment rendered upon a scire facias that the defendant “ be made party to the judgment rendered at the April term, A. D. 1879, and that an execution issue thereon,” while not strictly formal, is not a nullity. Whatever may be the value of such a judgment, the proper method of attacking it .is by direct proceedings to reverse it, and not by bill in equity.</p> <p>2. Jurisdiction in equity. — Whatever will discharge a surety in equity is also recognized at law; so, where a surety, made a party to a judgment against the principal by scire facias, suffered a default, he could not after-wards, by proceeding in equity, seek to enjoin such judgment on the ground that there had been an agreement between the judgment creditor and his principal to stay execution upon the original judgment. The surety had his day in court, and should have presented his defense in the proceedings upon the scire facias.</p> <p>3. Dissolution of injunction. — The record in this case failing to show that any injunction was ever granted, so much of the decree as awards damages upon dissolution of an injunction, is reversed.</p>

<p>1. Railroads — Injury by being upon cars — Averments in declaration. — In an action for injuries occasioned to one upon the cars of defendant, by reason of the negligence of defendant’s servants, an averment that he was upon the car with the knowledge of the servants of the company, and with the permission of the company, is sufficient.</p> <p>2. Defendant estopped to say permission was not lawful. — If the party was upon the cars with the knowledge and permission of the company, and by reason of the latter’s negligence an injury was occasioned, it would be estopped from saying that the permission was not granted inpursuance-of the lawful rules and regulations of the company.</p> <p>3. Breach of statute — Comparative negligence. — A breach of duty to the state on the part of the plaintiff will not absolve the defendant from the consequence of its act, unless that breach of duty necessarily contributed to the result, in which case the doctrine of comparative negligence will apply.</p> <p>4. Statute prohibiting minors getting on cars — Deaf and dumb person. — The second and third counts in the declaration alleged that the plaintiff was a child under ten years, and deaf and dumb. Under the averments in these two counts the case is to be construed without reference to the statute prohibiting minors from getting on cars, for the reason that it is not applicable to one situated as was the plaintiff, without proof of his capacity to commit an offense.</p> <p>5. Company liable. — If a child of the age and condition of the plaintiff, ignorant as to the danger and legal nature of the act, is led to frequent the cars of the company by the well-meant though injudicious kindness of the employe, and is hurt through their negligence, while performing services within the scope of their employment, the company cannot escape liability on the mere ground that he was there without having lawful permission of the company.</p>

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

<p>Error to the Circuit Court of Eichland county; the Hon. ¥m. C. Jones, Judge, presiding.</p>

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

<p>Evidence — Admissions.—The court is of opinion the evidence offered was competent.</p>

<p>Judgment affirmed. — The court is of opinion that no injustice has been done, and as no objection is taken to other instructions, they -will not be noticed.</p>

<p>1. Special" charter — Organization under general law. — In the change from a special charter to the general law, all laws and parts of laws not inconsistent with the general law, are, by the provisions of Section 6, preserved.</p> <p>2. Construction oe saving clause. — The thing saved must be a law or part of a law. If a part, it must be such a substantive member, having such individual features that it can be treated as a distinct entity, and which might be imported into the new law without marring its harmony or uniformity.</p> <p>3. Power to license or tax. — By the special charter power was given to license, tax and regulate certain trades. The general law provides a list of trades which may be licensed, embracing some of those found in the special charter, but not all, and including others not contained in the charter. To import one subject of taxation from the special charter and add it to the subjects embraced in the general law, would be the taking of a mere fragment of the old law, and would be inconsistent with the harmony of the new law.</p>

<p>" Freehold. — The case involving the question of freehold this court has no jurisdiction, and the writ of error is dismissed, with leave to withdraw the record.</p>

<p>Ordinance. — Where the charter of a city provides that an office shall he ■an annual one, so much of an ordinance as provides that the term of such office shall be one year or during the pleasure of the council, must be disregarded, because the ordinance cannot override the charter.</p>

<p>Nuncupative will. — The court is of opinion the evidence contains all that is necessary to a valid nuncupative will, and therefore reverse the case.</p>

<p>Appeal from 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.</p>

<p>Insurance — Individual liability on stockholder. — The questions in these cases are the same that were decided in Shufeldt v. Carver et al. 8 Bradwell, 545.</p>

<p>1. Contract — Statement of date under a vtdelicit. — A videUcit is used to particularize that which is general before, and to explain that which is indifferent, doubtful or obscure; but it must be neither contrary to the premises, nor increase nor diminish the precedent matter. A statement of a date under a videUcit which is inconsistent with a preceding averment, must be rejected.</p> <p>2. Policy of insurance — Averment that it is in force. — The date of the loss as stated positively and without a videUcit being after the policy described in the declaration had expired, the declaration is not strengthened, upon demurrer, by an averment that at the time the loss occurred the policy was in full force.</p>

<p>Decree and supplemental decree. — By the original decree, plaintiff in error, Walker, was required within ten days to pay for certain shares of stock held by him, and in default of such payment, such stock was to be . surrendered up for cancellation. This was not an unconditional decree for the payment of money, neither could such payment be enforced by the company, and a supplemental decree afterwards entered awarding an execution against plaintiff in error for the amount, was unauthorized and improper, it not being in execution of the provisions of the original decree.</p>

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

<p>1. Piuc~rc~-Cat oF DOcnEr.-A call of the calender out of the usual course, in the absence of a rule of record authorizing it, is calculated to work serious prejudice to suitors. There is no rule of law making it incumbent upon parties or their attorneys to be continually in court to watch against some irregular call of the docket.</p> <p>2. PRELThI{NARY cALL-MUsT BE AuTnonIzEn BY RULE ENTERED OF BEOOBD.rThe practice of the court as to the call of its trial calendar, has long been established, and so far as the record shows, such practice has not been changed so as to embrace a preliminary call. In order to authorize such a call there should be a rule of court entered of record.</p>

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

<p>1. Judgment in debt on bond. — In an action of debt upon a replevin bond, a judgment that the plaintiffs recover “the amount of their debt, the sum of §1,800,” and “ the amount of their damages, the sum of §868.22, together with the costs,” and that they have execution therefor, is erroneous. It amounts to a judgment for §2,668.22. The judgment should have been that the debt should be discharged upon payment of damages.</p> <p>2. Jurisdiction oe county court. — This judgment having been rendered before the act enlarging tl e jurisdiction of the county court, the judgment as rendered exceeded the jurisdiction of the court, and for this reason is erroneous.</p>

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

<p>1. Statement. — Drexel entered into a contract with the Vails to sell them certain lands in Chicago, at a certain price. By the terms of the agreement, the Vails were to subdivide the land and sell upon certain terms, Drexel to give to the purchasers contracts for a deed. The Vails were to retain ten per cent, of the cash received, to be used in advertising, etc., and the contract was to be performed within a certain period, time being expressly made of the essence of the contract. The contract was extended and modified from time to time. The Vails failing to perform, Drexel brought his bill, praying that the contract b^ decreed null and removed as a cloud upon his title; that the defendants be enjoined from receiving further payments upon outstanding contracts, or making new sales, and that they be required to pay the balance due complainant by a certain day, or he foreclosed, etc. A receiver was appointed; reference to a master to take an accounting, and a decree confirming the master’s report, and ordering defendants to pay the balance due within sixty days, etc.</p> <p>2. Forfeiture in equity. — The original bill was in substance a bill to decree a forfeiteure of defendant’s rights under the contract. No offer was made to convey the land upon payment of the balance found to be due, nor for an assignment of the outstanding contracts. Compensation and not forfeiture is the doctrine of equity, and it is a rule of universal application that courts of equity will never enforce either a penalty or a forfeiture. A party who relies upon a forfeiture must seek his remedy in a court of law.</p> <p>3. Contract for sale of land — Lien of vendor. — Under an agreement for the sale of land, the vendor has an equitable hen on the land for the unpaid purchase-money. In equity the vendee is considered the owner, and his estate is attended by nearly all the incidents of actual ownership. In respect to this lien the purchaser under an executory agreement stands in no other or different footing from that of a grantee under a conveyance of the legal title. The lien is in rem, and the vendor may come into a court of equity the first instance to enforce it, without first resorting to a suit at law to recover the amount due.</p> <p>4. Rights of vendor under the contract in this case. — In this case, if the vendor chose to come into a court of equity rather than assert his rights at law, he was entitled to an accounting in respect to the payments and the balance due, and a decree for the sale of the lands, or, upon a proper showing, to a decree of strict foreclosure, though the ordinary mode of enforcing the lien should be by a sale of the property.</p> <p>5. Decree for payment — Limiting time of payment. — The decree in this case was in the nature of a strict foreclosure, and the time in which the defendants were required to make payment — sixty days — or be foreclosed, was too short.</p> <p>6. Decree should have required conveyance of land upon payment. — The payment of the balance of the purchase money by the vendees, and the'conveyance of the land by the vendor, were concurrent acts, and the decree should have required such conveyance upon payment being made.</p> <p>7. Administrator of vendee not a necessary party. — The statute providing for the sale by the administrator of a deceased, vendee, of lands held by him under an executory contract of sale, has no application here. The vendor had a specific lien upon the land, and if he was satisfied to rely upon that for payment of the money due him, he had the right to waive any claim upon the general assets of the estate of the vendee.</p>

<p>, I. Writ or error — When an action. — Where a plaintiff, by Ms writ of error, shall recover, or be restored to any personal thing, as debt, damage, or the like, then the proceeding is to be regarded as in the nature of a suit or action, and. in such cases a plea of release of all actions, real and personal, is good.</p> <p>2. When not an action. — But where by a writ of error the plaintiff shall not be restored to any personal or real thing, a release of all actions real or personal is no bar.</p> <p>.3. Effect of writ of error. — The effect of a writ of error is simply to bring the record into court and submit the judgment of the inferior tribunal to examination. It does not in any manner act upon the parties; it acts only upon the record.</p> <p>4. Bankrupt law — Bight of assignee to sue — Limitation.—The section of the bankrupt law providing that suits may be brought by an assignee, and limiting the time within which he may sue, does not embrace every species of suit or action. It embraces only such suits as must be between an assignee and some person who claims an adverse interest in the property or subject-matter, and they must involve or concern some property or right of property which is either transferable to or has become vested in such assignee. They must he based upon a cause of action. Held, the writ of error in this case was not within the statute, because it was only defensive, and this court could render no judgment upon the merits of the controversy thereunder.</p> <p>5. Writ of error not barred by limitation. — Where there was a proceeding in the trial court for the foreclosure of a mortgage, to which the defendant had answered and filed a cross-bill setting up usury, and praying for redemption from the mortgage, and there was final judgment denying the equities of the defendant, an assignee in bankruptcy of such defendant may have a writ of error to bring up the judgment of the lower court for examination, notwithstanding two years have elapsed since the entry of such decree, before suing out such writ.</p>

<p>ERRo~ to the Oircriit Oourt of Oook county; the lion. M. F. TULEY, Judge, presiding.</p>

<p>1. Debt created by fraud of bankrupt. — Where the debt was created by the fraud of the bankrupt — as by making false statements whereby to obtain credit, the fact that the creditor has accepted part payment of the debt, and continued to deal with the debtor, will not affect his right to recover under the provisions of the bankrupt law excepting a fraudulent debt from the operation of a discharge in bankruptcy.</p> <p>2. Debt partly fraudulent and in part bona fide. — It is not the theory of the law that fraud in the creation of the debt avoids the discharge, but merely that as to such indebtedness the discharge has no application; so, where the debt is made up of items, some fraudulent and others bona fide, the discharge would be inoperative as to the former, and valid as to the latter. An instruction that it must be shown that the debt as a whole was created by fraud, is therefore erroneous.</p> <p>3. Separation of fraudulent items from those bona fide. — An instruction that unless the jury are able to distinguish how much of the debt was fraudulent, and how much bona fide, they must find for the defendant, is erroneous. If the evidence showed that any part or item was created by fraud, then as to that, the plaintiff’s were entitled to recover, although as to other items there may have been doubt.</p> <p>4. Fraud as an inducement to the debt. — It is not necessary to show that the plaintiffs parted with their property entirely upon the strength of the false representation made. The fraud that will support an action or become ground for relief, should be material in its nature, and a determining ground of the transaction, but it is nowhere held that it must be the sole and exclusive motive by which the party defrauded is induced to act.</p> <p>5. Fraudulent representation acts upon future sales.— The-question of fraud does not depend upon whether the defendants, at the time of malting the different purchases, made them in good faith, without any false representations as to their financial ability; but upon whether, in the writing set out, they knowingly made material misrepresentations, and the plaintiffs, replying upon then- truth, were thereby induced to sell the goods to defendants on credit.</p> <p>6. Rescission of sale. — Where a party claims the right of rescission he ■ must act promptly, and exercise that right upon discovery of the fraud; and if after discovery of the fraud he elects to affirm the contract, the-right of rescission is gone.</p>

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

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

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

<p>1. Practice — Plea confessed. — Defendants in a replevin suit pleaded, among other pleas, justification under a writ of attachment; to which plea no replication was filed. The writ of attachment was not offered in evidence upon trial. Held, that there being no replication, the plea stood confessed, and defendants were at liberty to attack the sale to plaintiff as fraudulent.</p> <p>2. Evidence — Production of books, papers, etc. — Courts have power upon notice being given, to compel parties to produce books or writings in their possession, or power, which contain evidence pertinent to the issue, for use as evidence in the cause. #</p> <p>3. Notice to produce. — The object of requiring notice to be given is that the party may have an opportunity to produce the papers called for, and not be taken by surprise. Where the writings required were actually in court in the hands of the attorney of the party, at the time of the trial, there was no necessity for previous notice.</p>

<p>1. Plea to the jurisdiction — Need not be verified. — A plea to the jurisdiction of the court is expressly excepted by statute from the provision requiring pleas in abatement to be verified, and it is therefore unimportant whether the affidavit to the plea in question was sufficient or not.</p> <p>2. Construction of a statute — -Jurisdiction.—Where the question involves the validity of a statute or the construction of the constitution, this court has no power to decide the case. The appeal should be taken direct to the Supreme Court.</p> <p>3. Jurisdiction of circuit courts in claims against estates. — The question here raised- — -whether circuit courts have jurisdiction of claims against estates of deceased persons — involves the consideration of statutes which are in apparent conflict with the constitution, and cannot be considered by this court.</p>

<p>Upon motion to strike out remanding order.</p>

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

<p>Ebrob to the Circuit Court of Cook county; the Hon. Elliott Anthony, of the Superior Court, sitting as Circuit Judge, presiding.</p>

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

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

<p>Error to the Superior Court of Cook county.</p>

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

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

<p>Appeal from the Superior Court of Cook county, the Hon. Gteobg-e Gr arbiter, Judge, presiding.</p>

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

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

<p>Appeal Abm the Circuit Court of Cook county, the Hon. Thos, A. Mob an, Judge, presiding.</p>

<p>1. Improvement of streets — Special benefits. — Special benefits, as a term employed in cases of assessments for improvements, mean benefits which are over and above the general benefit to the public at large.</p> <p>2. Instruction as to special benefits. — An instruction as to such benefits, which states that the question to be determined is, whether the property has been benefited by an improvement, is whether its market value after the improvement is made is greater than it was before, is erroneous, because it does not refer the cause of the increase in value to the making of the improvement.</p> <p>3. Conduct of judge at the trial.' — Remarks made by a judge during the progress of a trial, indicating his opinion, or which are calculated to prejudice a party to the suit-, are grounds for reversal of the judgment, but in this case the court cannot, from the record, see that any such cause exists.</p>

<p>1. Practice — Affidavits to disprove record. — Facts properly appearing of record are conclusive, and cannot be impeached by affidavits; but where the record is faulty in not making a proper statement, affidavits may be resorted to for the purpose of ascertaining what was meant.</p> <p>2. Call of cases — Calendar—Preliminary call. — Where the record states that an appeal was dismissed upon the call of the “calendar,” and does not show that such appeal was dismissed when reached for trial upon the regular call of the docket, it is irregular, and the order of dismissal will be set aside.</p> <p>3. Appeal from justice court — Trial de novo. — Upon an appeal from a judgment of a judgment of a justice, the cause stands for trial de novo in the appellate court, and the parties have the same standing in the latter court as if the suit had been originally brought in that court.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Elliott Anthony, of the Superior Court, sitting as Circuit J udge, presiding.</p>

<p>. Appeal from the Superior Court of Cook county: the Hon. Geo. Gardner, Judge, presiding.</p>

<p>Sale bt broker — Commission.—The evidence fails to establish the claim of appellees, that they introduced appellant to the property and were instrumental in making the sale ; hut on the contrary the testimony goes to show that appellant by his own efforts procured a purchaser, and is entitled to the commissions on the sale.</p>

<p>1. Partnership — Firm note given to partner. — There is no legal impediment to one of several partners becoming the creditor of the firm, and taking a promissory note in the name of the firm as evidence of his debt. In such case the payee cannot sue at law upon the note, but he has a complete remedy in equity.</p> <p>2. Bona fide indorsee of such note. — Such a note in the hands of a bona fide indorsee, for value, before maturity, is within the rule of protection accorded to commercial paper, and constitutes a valid obligation.</p> <p>3. Indorsement of note as collateral security — Eights of holder. — The rule of full protection to the bona fide holder of commercial paper, is modified in its application to paper transferred as collateral security. In such cases, if, as between the original parties, there is a defense on the merits, the transferee is protected only to the extent of the amount of the debt secured.</p> <p>4. Defenses as between original parties may be shown. — The holder of a note indorsed as collateral security not being protected except as to the. amount of the debt secured, it follows that in a suit upon the note, evidence tending to show that the maker is not liable to the payee upon the note, is admissible.</p> <p>5. ,Burden of proof as to amount of debt secured. — In an action upon a note by a party who has received the same as collateral security for a debt, the current of authorities is in favor of the rule requiring the maker, when sued, to show the amount of the debt secured.</p> <p>6. Party not required to do a useless act. — Where the maker of a note, when sued upon it by one who holds it as security for money advanced, offers proof tending to show a defense as between himself and the payee, which evidence the court refuses to admit, he need not then make an offer to prove that the note was transferred as collateral security, or the amount of money advanced. Such evidence, if admitted, would not avail him in the absence of the refused testimony, and he is not required to do a useless act.</p> <p>7. Practice — Objections to testimony. — When in the trial of a cause evidence is offered which is competent for any purpose, and it is only objected to generally, it is error to exclude it. ■</p>

<p>1. Pleading — Demurrer to whole declaration. — Where a general demurrer is filed to the whole declaration, if any one count of the declaration he found to state a good cause of action, the demurrer should be overruled.</p> <p>2. Vexatious suits. — A party has a cause of action against another who maliciously and without probable cause institutes a succession of suits against him before a justice of the peace, holding his office at a distance from the place of residence of the defendant, and upon his appearance- to defend, allowing such suits to be dismissed, and immediately eommeneing another for the same cause, thereby subjecting him to great trouble and expense in defending the same.</p>

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

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

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

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

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

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

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

<p>1. Estoppel. — It is essential to an estoppel that it he mutual, so that the same parties or privies may he bound by and take advantage of it.</p> <p>2. Estoppel in pais. — Where one party was not induced by the acts of th - other party to alter his situation in any respect, the doctrine of estoppel in pais does not apply.</p> <p>3. Application or doctrine to case at bar. — Appellant was the ovmei of the gr amd on which the buildings in question, an erection by a former tenant, stood, and on August 4,1880, caused a distress warrant against one Schmidt, to be levied upon the building and property therein. August 6, 1880, Grlanz, who ola med the property under a chattel mortgage from Schmidt, sold the property under the mortgage and it was purchased by appellant. Held, that appellant, by the levy of his distress against Sch nidc, was not estopped to show that the property was not in fact Schmidt’s at the time he gaye the mortgage. ’</p>