Volume 90 — Illinois Reports

John G. Rogebs, Judge, presiding. This case originated in the county court, where appellant presented, for allowance, a claim against the estate of George H. Hutchins, deceased. The county court refused to allow the claim, and the circuit court, on appeal, rendered a like decision, to reverse which Lazarus Silverman, the claimant, brings the record here by appeal.

<p>1. Damages—as io matters nolle prossed. In a suit by a property owner to recover damages against three railroad companies for the laying of their track near bis dwelling, in the street, whereby smoke, dust and cinders were thrown upon his house and lot, and otherwise creating a nuisance, depreciating the value of his property, where the plaintiff, on the trial, entered a nolle prosequi as to all damages arising from the construction and operation of certain tracks shown to belong to one of the companies exclusively, a finding of damages for the depreciation caused by all the roads, as well as general depreciation of real estate after the construction of the several roads, can not be sustained, and a remittitur of $800 out of $2000 found by the jury will not cure the error, as it can not be known how much the jury allowed for damages occasioned by the tracks to which the nolle applied.</p> <p>2. Instruction—assuming what is proved, is erroneous. A clause in an instruction, which assumes to determine what the evidence proves, or the weight of the evidence as to any given fact, is contrary to one of the plainest rules of practice, and can not be sanctioned.</p> <p>3. Measure of damages—nuisance io property by railroad tracks, etc. In an action to recover damages caused to a house and lot by the construction and operation of railroad tracks in a street in close proximity to the plaintiff’s property, the true measure of damages is, the loss sustained by thé nuisance, the injury from jarring the building and the throwing of cinders and smoke upon the plaintiff’s premises, and the depreciation of the value of the property by these causes may be considered, but not general depreciation in value from other causes, such as mere inconvenience in approaching or leaving the property, or the noise and confusion, in-the vicinity. The injury must be physical. f</p> <p>4. Damage to property not taken for public use, to he recoverable, must be physical and real, and not speculative, and it must depreciate' the value of the property or its use. The depreciation is to be determined by comparing its value before and after the structure which produces the injury, and any benefits thus conferred should he considered, as well as injury inflicted by the structure, in estimating the damages.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Hiram H. Cody, Judge, presiding.</p>

<p>1. Special assessments—may be confined to lots on line of the proposed improiement. Where the widening of a street is sought to be made by sections instead of its entire length, the commissioners appointed to assess the benefits of a particular section may properly confine their assessment of benefits to lots situated upon that part of the street embraced in such particular section of the proposed improvement, and their action in this respect is conclusive as to the limits of the property to be specially benefited.</p> <p>2. On application to confirm a special assessment of benefits of lots, derived by the widening of the street upon which they are situated, evidence that other lots on the same street, beyond either extremity of the proposed improvement, will be benefited thereby, is irrelevant, and properly excluded. They may be assessed when the street is widened in front of them, and should not bear an unequal burden.</p> <p>3. Same—evidence as to over assessment. The proper inquiry, on objection to the confirmation of special assessments for widening a section of a street, is whether the assessment of a particular lot is justly made in proportion to the assessment of benefits on the other lots in the general assessment of all the other lots, thus limiting it to the property included in the assessment roll. The assessment is not to be considered in relation to other property not in the roll, or relatively to any lot included therein, but as to the proportion it bears to the entire assessment.</p>

Joseph E. Gaby, Judge, presiding. On the 7th of September, 1876, George Kappes and Francis Eggerman sued out of the Superior Court of Cook county a writ of attachment against The First National Bank of Centreville, Iowa, and caused to be inserted in the writ the name of The Union National Bank of Chicago, to be summoned as a garnishee in the cause.

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Joseph M. Bailey,'Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Hiram H. Cody, Judge, presiding.</p>

<p>1. Mechanic’s hen-—strict compliance with statute necessary. The statute which gives a mechanic a lien is in derogation of t.he common law, and must be strictly construed, and no person can have a lien under it without showing a clear compliance with its provisions.</p> <p>2. Same—time of performance and payment. A petition for a mechanic’s lien which does not show that the labor, whether the contract be written or verbal, if an express contract, was to be performed within three years from its date, or that payment was to be made within one year from the time of the completion of the contract, is substantially bad, and shows no right to the lien sought</p> <p>3. Allegations and proof—party confined to his own theory of his case. Where a petition for the enforcement of a mechanic’s lien sets up and relies upon an express contract, the petitioner can not afterwards rely upon a state of facts not set up and relied upon in the petition, as, that the contract was partly express and partly implied.</p>

<p>1. Malicious prosecution—advice as to probable cause. Where a party, before commencing a criminal prosecution for larceny, consults and takes tile advice of highly reputable and able lawyers, upon a fair and truthful statement of the facts to them, and acts on their advice, he will not be liable in a suit for malicious prosecution.</p> <p>2. Damages—when excessive. Where a party bids oif the personal property of his debtor at a sale on execution, and takes actual possession thereof, and puts it into the hands of an agent to be sold, under an arrangement with the debtor, that after the debt and costs are realized from the proceeds of the sale, the debtor shall have the balance, and the debtor, before the debt is so paid, breaks into the place where the goods are kept, and removes and disposes of them, and is thereupon arrested for larceny, on the complaint of the creditor, who acts upon the advice of counsel, and the debtor is confined only a few hours, until he gives bail, $10,000 damages in a verdict in a suit by the debtor for malicious prosecution is so grossly excessive, as to evince prejudice, passion or misconception on the part of the jury, and a remittitur of $4000 will not cure the error, the remainder being also grossly excessive.</p> <p>3. New trial—excessive damages. Where the damages found by a jury are so grossly excessive as to be accounted for only on the ground of prejudice, passion or misconception, a remittitur of four-tenths of the amount will not obviate the error, as the prejudice or misconception of the jury probably influenced the finding on the issues of fact.</p>

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

Joseph E. Gary, Judge, presiding. This was an action of debt, brought upon an appeal bond, by Benjamin Shoneman and Samuel Shoneman, against Samuel Meyers and Peter J. Clausen. The following ie a copy of the plaintiff’s fee bill, referred to in the opinion : “ 1871. Mch.

<p>Bankruptcy—new promise to remove discharge. The promise by which a discharged debt of a bankrupt is revived, must be clear, distinct and unequivocal. It may be an absolute or a conditional promise, but in either case it must be unequivocal, and the occurrence of the condition must be averred if the ' promise be conditional.</p>

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

<p>Appeal 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. Joseph E. Gary, Judge, presiding.</p>

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

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

J. W. Cochean, Judge, presiding. The bill in chancery in this case, filed on the 7th day of April, 1877, by citizens and tax-payers of the city of Peoria, sets forth that at a meeting of the city council of the city of Peoria, on March 30, 1877, the annual appropriation bill or ordinance was passed, in which was incorporated an item providing for the appropriation of the sum of $11,000 for a certain water works pump, known as a “New Dean Pump;” that on the 4th day of April,…

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

W. K. McAllister, Judge, presiding. This was an action on the case by Sarah Waldron against Henry S. Deitrich, for fraud and deceit, practiced by the defendant on the plaintiff in the sale of certain real estate, consisting, as was alleged, in certain false and fraudulent representations respecting the property, the title, and its location and surroundings, as giving it value. A trial was had resulting in a verdict and judgment in favor of the plaintiff for $641.84.

Writ op Error to the Criminal Court of Cook county; the Hon. John A. Jameson, Judge, presiding. At the March term, 1878, of the Criminal Court of Cook county, plaintiffs in error, George White and Emma White, were tried before a jury upon an indictment for larceny. The trial resulted in a verdict of guilty against them both, and they were sentenced to imprisonment in the penitentiary, the former for a term of four years, and the latter for a term of two years.

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

<p>1. Assault and battery—ejecting passenger from cars. Where a passenger lawfully on a railway train conducts himself in an orderly and decent manner, and pays or offers to pay the fare fixed by the company, his expulsion from the cars by the conductor in a forcible manner is unjustifiable, and being so, the company will be held liable for an assault and battery in a civil action.</p> <p>2. Master and servant—liability of master for trespass of servant. A railway company is liable for the acts of its conductor performed within the scope of his authority. ^If he wrongfully and forcibly ejects a passenger from a passenger coach while in the employment of the company, the latter will be liable in trespass to the passenger.</p> <p>3. Railroad—right to eject passenger from, cars. Where a passenger tenders a railway conductor a certain amount of fare to be carried to a certain station, which is less than the rate fixed by the company, saying he will pay no more, and the conductor retains a sum sufficient to take the passenger to an intermediate station and returns the balance, the passenger will have the right, on reaching such intermediate station, to pay the fare demanded from that point to the place of his destination, and upon his offering to pay the same he can not rightfully be put off the train.</p> <p>4. Same—rules and regulations. A railway company has no power to adopt rules and regulations prohibiting decently behaved persons from traveling on its road, who will pay their fare and conform to all reasonable requirements for the safety and comfort of passengers.</p> <p>5. Damages—whsn exemplary may be given. If a railway conductor, without demanding fare, or after the fare is offered to be paid, takes a passenger who is properly behaving himself by the collar, and leads him to the door of the car and puts him off, tearing his coat in the act of expulsion, and such act is unprovoked, willful and malicious, and performed in a rude and aggravating manner, with the intention to wound the feelings of the passenger and to bring him into contempt and disgrace, in trespass against the company the jury may give punitive or exemplary damages.</p> <p>6. Instruction—without evidence and assuming facts, misleading. In trespass against a railway company for the wrongful and forcible expulsion of a passenger from its train of cars, it is error to instruct the jury that in estimating damages they may take into consideration the position, character, standing, influence, power, wealth, ability to inflict injury and to practice tyranny, oppression and injustice, where there is no evidence touching such matters; and the court has no right to intimate that the company has evinced a disposition to practice tyranny, oppression and injustice. Such an instruction, too, is highly calculated to influence the passions of the jury, and prejudice them.</p> <p>7. Practice—when defendant may open and close. In an action of trespass to the person, where no general issue or traverse of the declaration is filed, but only pleas of confession and avoidance, the defendant has the right to open and close the case, both in the trial and in the argument to the jury, and it is error to refuse it.</p> <p>8. Burden of proof—practice—where defendant assumes the burden but offers no proof. In trespass, where pleas of confession and avoidance alone are filed, the plaintiff is required to introduce no evidence until the defendant, prima facie, sustains his defense. In such case, if the defendant introduces no evidence, the plaintiff may then give evidence of the nature and extent of the injury, precisely as in the case of a default.</p>

<p>1. Will—evidence proper on question of undue influence. On the contest of a will and codicil when offered for probate, on the ground of want of mental capacity and of undue influence by a second wife, it is error to exclude evidence of matters occurring in the testator’s family within a year preceding the making of the will, which affords an insight into the private history of the family, and furnishes an understanding of the relations of the testator with his wife, t.o whom the principal part of the estate was devised, and which also tends to show the means employed by the wife to alienate the affections of the testator from his children by a former wife, and to obtain the control of his property.</p> <p>2. Same—declarations of testator. While the declarations of a testator are not admissible to show an express revocation of Ms will, or the fact it was executed under duress, or to prove undue influence, they may, nevertheless, be proved and used to show his mental condition at the time of the execution of the will, or so near the time that the same state of affairs must have still existed.</p> <p>3. Where the probate of a will is resisted, on the ground of a want of mental capacity in, the testator and undue influence exercised by his wife, to whom the bulk of his property is given, any evidence is proper which tends to show the testator’s mental condition, the annoyances he was subjected to by the continued importunities of his wife, his susceptibility to the influences of those in whose care he was, and his helplessness in their hands, from want of mental vigor induced by long sickness, to resist any influences that might be brought to bear on him.</p> <p>4. Evidence—how construed on question of admissibility. On the question of the admissibility of evidence, it must be regarded as true and proving all that it tends to prove.</p>

<p>1. Mandamus—when refused. The court will refuse to grant a mandamus when it is manifest it will be barren and fruitless, or useless, or can not have a beneficial effect.</p> <p>2. Where school directors refused to permit certain children to attend the public school unless they would bring a written excuse for their previous absence, and it did not appear that the refusal was permanent, or applied beyond the term, and the petition for a mandamus to compel the directors to admit the children without an excuse, was filed one day before the close of the term, so that it was not possible to have a hearing before the close of the term, it was held, that the application for the writ was properly denied.</p> <p>3. Same—amendment of answer. It is within the discretion of the court to allow an amendment to an answer to a petition for a mandamus, which takes the place of a return to the writ, and the relator can not be heard to object to its allowance when he shows no right to the writ.</p>

<p>1. Usury—discounting paper. It is not usury to buy a note, in the usual course of business, at a discount greater than the rate of interest allowed by law.</p> <p>2. Where a debtor agrees with his creditor to give him a commission of $1500 if he will find a party who will advance the money then due and about to become due on his notes, secured by deed of trust, and thereby procure him a year’s extension of time in the payment, and the legal holder of the notes transfers them by delivery to another party, who agrees with the holder to take them and give the desired extension for $1500, and money enough to make the interest on the notes equal to ten per cent, and the holder pays such sums and procures the taking and discounting of the notes, the purchaser haying no knowledge of the terms upon which the extension had been granted by the legal holder of the notes, the party so taking and discounting the notes will not be chargeable with usury.</p> <p>3. Assignment—defense against assignee, in equity. In equity, on bill to foreclose a mortgage by the assignee of a note, secured by trust deed, the mortgagor may interpose any equitable defense he has against the original payee or mortgagee arising out of the original transaction; but this rule does not extend to a set-off of a debt due from the assignor to the mortgagor, arising out of a collateral or subsequent matter.</p> <p>4. Parties—to bill to foreclose. On bill to foreclose a deed of trust upon land selected subsequent to the making of the deed of trust, and taken possession of by the South Park commissioners, and condemned by legal proceedings, but not paid for, such commissioners are necessary parties.</p> <p>5. Foreclosure—of land taken for public use. Where mortgaged property is condemned and appropriated to public use, and the compensation awarded to the owner or mortgagor exceeds the sum due on the mortgage, and is not paid, it is not proper on bill to foreclose to order a sale of the premises. The sum found due should be ordered paid out of the condemnation money.</p>

<p>1. Practice—waiver of objection. If a defendant, after the court decides his affidavit setting up his defense under the five-day rule to be insufficient, takes no exception, but asks and obtains leave to file a new affidavit, he can not assign the ruling upon the first for error.</p> <p>2. Same—party must except, if he designs to urge ruling as error. Unless a defendant takes an exception to the ruling of the court in allowing a motion for a speedy trial, and trying the case out of its order on the docket, and before it has been reached on the regular call, the propriety of the action of the court can not be reviewed in this court.</p> <p>3. Instruction—to find for the plaintiff. An instruction to a jury to whom an issue of fact is submitted, that the plaintiff is entitled to recover, is subject to criticism, and in most cases will work a reversal.</p> <p>4. Error—when will not reverse. This court will not reverse a judgment for an erroneous instruction to find for the plaintiff, when, under the evidence, the verdict could not have been different from what it was.</p>

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

John G. Rogers, Judge, presiding.. This was an information, in the nature of a quo warranto, in the name of the people on the relation of the Auditor of the State, against a corporation, organized under the laws of the State, known as The Commercial League Association of America, in which it is alleged that said company, a corporation incorporated under and by virtue of the laws of the State of Illinois, and having its principal office in Chicago, for the space of two months…

<p>Writ of Error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.</p>

William Brown, Judge, presiding. This was an action of covenant upon a written contract for the sale of certain lands by Michael Murphy and Elizabeth Murphy, his wife, to the defendant, Oliver T. Ashbaugh, which contract the defendant had destroyed. The defendant covenanted to pay $1680 for the land, and paid $55 on the same. The plaintiff recovered judgment for $250 damages.

Hon. W. W. Heaton, Judge, presiding. This was a bill in chancery, by George Baugh, against Edmund Curtis, to recover damages claimed by the complainant from the cutting down and removal of trees and timber from certain lands upon which the complainant held a deed of trust to secure the payment of money, whereby his security was lessened and the premises rendered inadequate security.

<p>Writ of Error to the Criminal Court of Cook county; the Hon. W. K. McAllister, Judge, presiding.</p>

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

Joseph E. Gary, Judge, presiding. This was an action of debt, brought by Julia A. Burtis, against Joshua R. Hull and William H. Lidell, as stockholders in the Bank of Chicago, to recover for an indebtedness claimed to be due from the bank to the plaintiff. The action was based upon an act of the legislature, entitled “An act to incorporate the National Loan and Trust Company of Chicago,” approved March 9, 1867.

<p>1. Criminal law—sale of beer to be drank in street or alley. If the owner of a brewery not having a license to keep a dram-shop, sells beer to various persons, on various occasions, by the gallon, knowing or having good reason to believe such persons to whom sold are going to drink the same in a public street or alley adjoining his brewery where the sale is made, and the same is so drank in the street or alley, he may be convicted under counts of an indictment charging a sale of liquor to be drank on premises adjacent to the premises where the sale is made or place of public r.esort.</p> <p>2. Same—street may be a place of public resort. A public street or alley adjoining a place where beer is sold by the gallon, may be so used by the public as to make them places of “public resort” within the intent and meaning of the statute relating to dram-shops, as, where persons daily assemble there for amusement, drinking and conversation, and contribute money with which to buy beer by the gallon.</p> <p>3. Same—a street as “premises adjacent" to place of sale. A public street or alley fronting a place where beer is sold to be drank in the street, is embraced within the statute prohibiting sales of liquor to be drank upon premises adjacent to the place of sale.</p> <p>4. Instruction—abstract law. The giving of an instruction announcing a correct rule of law as provided by the statute, in a certain case, which has no bearing on the case being tried, but not calculated to mislead the jury, is no ground for reversing a judgment justified by the evidence.</p>

Writ of Error to the Circuit Court of Lake county ; the Hon. H. H. Cody, Judge, presiding. This was an indictment against Peter Davison for the murder of John Robertson, on Sept. 8, 1877.

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

H. J. Pillsbury, Judge, presiding. This was an action, originally brought before a justice of the peace, by John W. Reynolds, against Jacob Shear, who was sheriff of the county, to recover double the value of a certain horse, and taken by appeal to the circuit court, where a trial was had, resulting in a verdict and judgment of $160 in favor of the plaintiff. The facts appear in the opinion of the court.

<p>1. Execution—mortgagor’s equity of redemption. A mortgagor’s equity of redemption in real estate may be levied on and sold under execution against him, and he can not convey his equity of redemption to a prior mortgagee and thereby cut off the lien of a judgment attaching while he held such interest, but it will still be liable to levy and sale.</p> <p>2. Pleading and evidence—questions to be considered must be within the scope of the pleadings. Upon bill filed by one claiming title to land under a mortgagee to whom the mortgagor had released his equity of redemption, to enjoin a sale of the supposed interest of the mortgagor under an execution issued upon a judgment rendered against him prior to his release to' the mortgagee, the only scope of the bill being for an injunction and to prevent a cloud upon the title of the complainant, the question whether the mortgagee, by taking a deed from the mortgagor in payment of the mortgage debt and releasing the mortgage upon the record, has lost his security, will not be considered, that subject not being within the proper scope of the bill.</p>

<p>Appeal from the Circuit Court of Du Page county; the Hon. H. H. Cody, Judge, presiding.</p>

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

<p>1. Pleading and evidence —proof of execution of a bond by a corporation. Where an appeal bond of a railway company is sued on, and there is no plea under oath denying it is the bond of the company, and it purports on its face to be the bond of the company, and is signed by its president and secretary, with the corporate seal attached, no other proof of its being the bond of the company is necessary.</p> <p>2. Evidence—in suit on appeal bond. In a suit upon an appeal bond given on an appeal to this court, the judgment of affirmance by this court is conclusive as to the validity of the judgment appealed from, and no inquiry can be had as to the merits of the original controversy, nor as to the validity of the judgment.</p>

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

E. S. Williams, Judge, presiding. This was a bill brought by appellees to compel appellants to construct and maintain a certain swing draw-bridge in conformity with an agreement in that regard.

Samuel M. Moore, Judge, presiding. On the 5th of November, 1870, Bichard Downing, the appellant, being the owner of certain lands mentioned in the bill, contracted to sell the same to Ernest Plate, for the sum of $6280, to be paid in installments from time to time, the last of which was to be paid at the end of six years from that date.

Writ of Error to the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding. This was an indictment against Jay Slocum and Rose Slocum for the abduction of Alcinda Templeton, containing two counts. The first charges the defendants with having enticed Alcinda Templeton, an unmarried female of chaste life and conversation, from her parents’ house, for the purpose of prostitution.

<p>1. Usury—by agent loaning without authority to take usury. Where a principal does not authorize his financial agent, in placing a loan, to charge a greater rate of interest than the law allows, and has no knowledge that a larger rate is charged by the agent, and does not receive the excess of interest, the defense of usury can not be sustained against him. In such case no unlawful and corrupt intent can be imputed to the principal, and he is not bound by the agent’s act beyond the scope of his authority.</p> <p>2. Same—burden of proof. On a plea of usury the burden of proof is on the defendant, and he must make out the defense by a preponderance of evidence.</p> <p>3. Same—when principal debtor pays surety, who assumes debt. Where the principal debtor settles with his surety, and pays him the sum due either in money or in property, and the surety agrees to assume and pay the debt, and, in pursuance of the agreement, takes up the old note, giving his own in the place thereof, the question of usury in the original transaction becomes immaterial, and the maker of the new note can not interpose it as a defense in a suit on his note.</p> <p>4. Error—will not always reverse. Where a principal in a note has paid his surety the amount necessary to discharge the debt, which the surety retains, and assumes the payment of the debt, and gives his own note in lieu of the old note, and this fact is presented by the pleadings, an error by the court in an instruction in respect to usury in the original transaction will be no ground for reversing the judgment against the defendant, as the judgment was proper irrespective of the question of usury.</p> <p>5. Instruction—repeating. The court is not required to give two or more instructions which are substantially alike, but it may give one and refuse others embodying the same principle.</p> <p>6. Evidence—weight and preponderance. It does not follow, necessarily, that when a fact is sworn to by one witness, and denied by another of equal credibility, there is no preponderance. That does not always depend upon the number of witnesses. The interest, motive, prejudice, manner of testifying, and other kindred things, are to be considered in determining which of two witnesses testifying in conflict with each other is entitled to the greater credit.</p> <p>7. Variance—pleading and proof. Where the pleading shows that $550 was paid by a principal debtor to Ms sureties, under an agreement they were to assume his debt, it is immaterial whether the payment was in money or property, if accepted under the agreement to assume.</p>

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

<p>1. Chattel mortgage—right of mortgagor to sell and me proceeds renders the transaction fraudulent. Where a chattel mortgage is given on personal property, and the mortgagee, by a written agreement, gives the mortgagor the right to manufacture the materials and sell property, with the approval of the mortgagee, and to receive the price and retain a certain sum therefrom for each month to enable the mortgagor to run the business, pay hands and support his family, the mortgage will be fraudulent and void as against other creditors of the mortgagor.</p> <p>2. To render such a security valid, as against third persons, the debtor must part with all right to appropriate the property to his own use during the existence of the lien, or the power to sell -it and appropriate the proceeds of the sale to his own use.</p>

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

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

<p>1. Referee—statute must be pursued. The proceedings before a referee being statutory, must, in all substantial respects, pursue the statute, or they can not be sustained.</p> <p>2. Same—report must contain the evidence. The statute authorizes no report by a referee, except one containing the evidence heard, and giving the referee’s conclusions thereon, to which the parties are entitled to be heard on exceptions. If the report fails to give the evidence, no judgment can be entered on it.</p> <p>3. Same—appointment must be by the court. A referee under the statute must be appointed by an order of the court in the cause. No judgment can be rendered on the report of one appointed by the written stipulation of the parties only, though an action at law may lie on such report as a good award at common law. The referee is an officer of the court and can only be appointed under its order.</p> <p>4. Where the parties to a suit make an agreement out of court to submit the cause to a third person, and that the court shall enter judgment on the finding of such third person, though not in compliance with the statute in reference to arbitrations, or that concerning the appointment of a referee, the court may, by mutual consent, enter judgment upon the finding, but if it is objected to, the trial must proceed as at common law.</p>

<p>Negligence—injury from sewer. Where a party’s sewer and catch-basin have been properly constructed, so as to carry off the water, and have been kept in repair, he can not be held liable for the damages an adjacent owner of premises may sustain by water overflowing the basement of his building, and a judgment holding such party liable will be reversed.</p>

<p>1. Landlord and tenant—party buying out tenant A party purchasing and taking possession of property from one who is a tenant, takes but his interest, and subject to Ms obligation to pay rent to his landlord.</p> <p>2. Same—notice to terminate tenancy for non-payment of rent A notice to terminate a tenancy for non-payment of rent is not defective because it fails to mention any time for the payment of the rent due, and it will be good even if it misdescribes the number of the lot, when it is apparent that it is not misleading as to the rent and lease intended, and proof is made, without objection, that the lot leased and the one named in the notice are the same.</p> <p>3. Same—service of notice to terminate for non-payment of rent. Where a tenant sold out his.interest in the demised premises, and the landlord, to terminate the tenancy for the non-payment of rent, delivered a written notice to the father of the party in possession, addressed to the original tenant, which the parly in possession afterwards received and read, the service of the notice was held sufficient.</p>

<p>1. Eight of way—right to damages to land, not taken. On the condemnation of land for a right of way for a railroad, the evidence will be confined to the particular lands described in the petition, unless the defendant files a cross-petition setting up that he is the owner of other ground not described in the original petition, which will be damaged, and makes claim to have the damages thereto likewise assessed.</p> <p>2. Same—what is a cross-petition for damages to other lands. Where the defendant files a pleading, in which he says “he is the owne'r of the lands mentioned in the petition, and other lands contiguous thereto, making a farm of 730 acres in a compact body; that the railroad company takes about 12 acres out of his farm, dividing wood, water and timber from the balance of the farm; that the land thus taken is of the value of $150 per acre, and the damage by reason of cutting the farm is $10,000, and he respectfully asks that his compensation may be awarded to him as shall be just and proper,” this will be sufficient to answer the purpose of a cross-petition for damages to contiguous lands, and will give the court jurisdiction as to the claim of such damages.</p> <p>3. Same—damages. Where the owner, over whose land a right of way is sought, by cross-petition, claims damages to other parts of the same tract, an instruction confining the assessment of the jury to the strip of land actually taken, and excluding any consideration of damages to the remainder of the farm, is properly refused.</p> <p>4. Same—right to damages by purchaser after occupation of right of way. Where a railroad is located and operated over land belonging to an estate, without condemnation, or otherwise acquiring the right of way, the taking and retaining the land used is a continuing trespass, and on judicial sale the whole land, including the so-called right of way, passes to the purchaser, and he will be entitled to compensation for the land taken and damages for any injury to the part not so taken, on a proceeding to condemn.</p> <p>5. Same—condemnation not complete until payment. A condemnation of land for right of way, upon due proceedings, will not deprive the owner of his title, or right of possession, or of alienation, without payment of the compensation and damages awarded.</p> <p>6. Same—value of land taken—at what time to he fixed. Where land has been taken and occupied for railroad purposes prior to instituting proceedings to condemn, the value of the land taken at the time of the condemnation is the value to be ascertained, the owner being entitled to any advance between that time and the actual taking of the land; and when the land is sold after its occupation for a right of way, and before proceedings to condemn, the purchaser will he entitled to the advance in value.</p> <p>7. Same—when purchaser may maintain ejectment. The purchaser of land over which a railroad is constructed and operated without having acquired the right of way, may, upon receiving a conveyance of the legal title, maintain ejectment against the company for the land so tortiously taken and occupied.</p> <p>8. Same—proceeding to condemn admits defendant’s title and right to compensation. A proceeding to condemn land as the property of the defendant, and asking to have the defendant’s compensation assessed, is an admission of his title and right to compensation for the land sought to be appropriated for right of way.</p> <p>9. Same—elements of damage. As elements of damage, the fact that the railroad separates the wood, -water and timber from the balance of the farm, the inconvenience to the owner from the perpetual use of the track for moving trains over it, danger to stock kept on the farm, and many other things, may be considered, as well as the actual increase or decrease in the market value of the farm occasioned by the road.</p> <p>10. New trial—assessment of'damages for right of way. Where the jury, in " a proceeding to condemn land for a right of way by a railroad company, go upon the land in person and examine the same, such examination is in the nature of evidence, and in such case, even though the preponderance of the evidence presented in the record is clearly against so large an assessment as found by the jury, a new trial will not be granted, as the facts ascertained by the personal investigation may have fully justified the verdict. '</p>

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

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

<p>Partnership—when firth liable for debt of one partner. Where two persons, as partner^ in the erection of buildings, have dealt largely with a person in the roofing business, and one of the partners employs such person in and about a building of his own, and the person doing such work has no notice of the fact the work is for the individual partner, but does the work on the credit of the firm as in prior dealings, a recovery by him for his services, against the firm, will not be disturbed.</p>

<p>1. Negligence — as between master and servant—contributory negligence. In an action by a servant, against his employer, to recover damages for a personal injury caused by the use of defective machinery or materials employed in the business, the observance of due care and caution on the part of the servant is indispensable to his right to recover.</p> <p>2. While there is an implied contract between employer and employee, that the former shall procure and keep suitable tools, implements, means, etc., with which' to perform the labor required of the latter, and also that the latter shall be advised by the former of all the dangers incident to the service of which the latter is not cognizant, yet the failure of the employer in this regard furnishes no excuse for the conduct of the employee who voluntarily incurs a known danger. He must himself use due care and caution to avoid injury, and if he enters a service with full knowledge of its perils, without requiring that it first be made safe, he assumes the risk and must bear the consequences.</p> <p>3. Where a servant, employed in removing freight from one car into another, used a common car door made of pine boards, which was laid from one car door to another, and while taking down a bale of wool he and his fellow servant let the same fall upon a truck on the door, which caused the door to break, giving him a fall and inflicting a severe personal injury, when the proof showed that such servant had been engaged nearly two years in the business and had frequently before used such a door for a platform, and knew the danger in its use, and its defects, and the employer gave no direction to use such a platform, there being others in the yards of better construction and stronger materials which might have been used, and the employer not knowing that such a one was used at the time of the accident, and the servant never objected to the use of such platforms or suggested they be changed and others substituted, the negligence of the servant in continuing to use such a platform, knowing the same to be unsafe, is of such a character as to defeat a recovery by him against the employer.</p> <p>4. Practice in Supreme Court—as to time of considering objection to bill of exceptions. Where the appellee makes an objection to a bill of exceptions, and the objection is decided upon his motion to strike the bill of exceptions from the record, it is not properly a subject of consideration upon the final hearing of the cause.</p>

Frank M. Annis, Judge, presiding. This was an action against the Chicago and Northwestern Bailway Company to -recover damages for causing and permitting water to flow and escape from a water tank of the defendant, upon premises of the plaintiff. The plaintiff recovered a verdict and judgment for $325 damages, and the defendant appealed. The general facts of the case are as follows : .

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

<p>1. Ground or recovery—presumption. Although a declaration to recover damages to goods may not be broad enough to admit a recovery of damages for an injury to the building containing them, the judgment will not be reversed on account of the admission of evidence as to the damages to the latter, where the recovery is not so large as the evidence shows the damages to have been to the goods. In such case it will be presumed the jury allowed no damages except as to the goods.</p> <p>2. Municipal corporation—liability for damages resulting from manner of changing grade of street, etc. While a city may change the grade of a street at will or pleasure, yet, where it is changed and sewers or drains are constructed for the purpose of carying off surface water, and they are constructed in such an imperfect manner that the water is turned into the basement of a building of a lot owner on the street, the city will be liable for such damages as may arise from the defective improvement.</p> <p>3. Practice—time to taTce advantage of variance. In an action to recover damages caused to a building, the defendant can not take advantage of a variance between the averment and proof as to the location of the building, in this court, for the first time. If he fails to make the objection in the court below so as to give an opportunity to obviate it by amendment of the pleadings, he will be held to have waived it.</p>

<p>1. Amendments—changing parties to suits. Where a suit was brought before a justice of the peace in the name of one for the use of another, on an appeal to the circuit court an amendment may be allowed, under section 24 of the Practice act (Rev. Stat. 1874), by striking out the name of the nominal plaintiff and permitting the suit to proceed in the name of the beneficial plaintiff.</p> <p>2. This section allows any and all amendments, in form or substance, in any process, pleading or proceeding, which may enable the plaintiff to sustain his action on the claim on which it was intended to be brought, or the defendant to make a legal defense. If the opposite party is taken by surprise, and is unprepared to meet the case as made by the amendment, he should show that fact and ask for a continuance.</p> <p>3. Costs—on changing parties to suit. Where an amendment is allowed changing the parties to a suit by striking out the name of a nominal plaintiff and permitting the cause to proceed in the name of the beneficial plaintiff, costs will not be allowed against the plaintiff whose name is thus stricken out.</p>

<p>Appeal—dismissal for maní of prosecution. The fact that a defendant who has appealed from the judgment of a justice of the peace is not ready for trial when the case is called on the docket, is no sufficient reason for the dismissal of his appeal. In such case he has the right to have the plaintiff prove his cause of action, whether he has any defense to make or not, and it is error to dismiss the appeal.</p>

<p>1. Agency—architect to supervise work—of his authority to employ others to do work. An architect, employed only to supervise and direct the work to be done by a contractor and those acting under him, has no authority to employ another to do work on a building which the contractor has undertaken to do.</p> <p>2. Action-—when person for whom work is done is liable by not objecting. Where a party employs another to furnish all the materials and erect a building, into whose hands the whole matter is put, the contract providing for changes, and contemplating his employment of others as to parts of the work, which he does, the whole to be done under the supervision of an architect., and a part of the work proving defective is taken out, and replaced by another person whom the contractor has had working for him, the owner of the building will not be held responsible to such person so replacing the work merely because he saw him at work and made no objection, but hurried him on, as he had the right to suppose such work was being done under and for the contractor.</p> <p>3. The doctrine that a party seeing work progress for him, and making no objection thereto to the person doing the same, is liable to the person so working, has no application where the entire work is contracted to and placed under the control of another, who has the power to employ whom he pleases.</p>

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

Writ op Error to the Circuit Court of De Kalb county; the Hon. Theodore D. Murphy, Judge, presiding. This was an action to recover of Emerson C. Shippee and James W. Hunter $1000, which the plaintiff, Daniel Pierce, had furnished the defendants, to be used in the purchase of corn, and which it is claimed the defendants wrongfully appropriated to their own use.

<p>Appeal from the Circuit Court of Kane county; the Hon. Hiram H. Cody, Judge, presiding.</p>

John A. Jameson, Judge, presiding. This was a petition for a mechanic’s lien, filed by Wm. E. Clark and Lewis E. Clark against Michael W. Manning, Henry L. Hammond and Edward A. Lawrence.

<p>1. Criminal law—conspiracy. In order to sustain a conviction for a conspiracy, the object of the conspiracy must be proved as laid in the indictment, and there must be more than one person shown to be guilty. It needs something more than proof of a mere passive cognizance of fraudulent or illegal action of others to show a conspiracy. There must be something showing active participation of some kind by the parties charged.</p> <p>2. On an indictment against A, B and C, for a conspiracy fraudulently to obtain from a prosecuting witness a sum of money by means of false pretenses, it is incumbent on the people to prove the conspiracy, as alleged, by clear and satisfactory evidence. If what B and C did, though imprudent and improper, was not done with a design to defraud the prosecutor, or done with a view to assist A to defraud him, and the subsequent acts of A were not done in pursuance of any previous understanding with B and 0, or done pursuant to their advice or direction, a conviction of A can not be sustained.</p> <p>3. Where A procured B to convey a lot to C, and C to give to A his three promissory notes for $2778, each of the same date and rate of interest, and maturing on the same day, secured by three separate deeds of trust on the lot, one for each note, and caused the deed to C and one deed of trust to be recorded, so that the record would show only one incumbrance for $2778, and by means of false pretenses sold two of the notes as first liens on the property, and then disposed of the other to D as collateral security for the loan of $2500, by means of similar false pretenses, the proof failing to show bad design or intent on the part of B or C in making the conveyance or notes and deeds of trust, or knowledge of the use A intended to make of them, or that they had any connection whatever with his fraudulent acts subsequently done, it was held, that a conviction of A for a conspiracy with B and C to defraud D, by means of false pretenses, could not be sustained.</p>

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. J. W. Cochran, Judge, presiding.</p> <p>This was an action of assumpsit, brought by Robert Diefendorf, the appellee, against the Second National Bank of Peoria, in the circuit court of Peoria county, upon an alleged liability to indemnify the plaintiff as drawer of a bill of exchange, as follows:</p> <p>$27,836.38. Chicago, July 2, 1870.</p> <p>At sight pay to the order of James DeKoven, Esq., cash.in N. Y. Ex., $27,836.38, value received, and charge to account of as advised.</p> <p>R. Diefendorf.</p> <p>To J. W. Rae, Esq., Peoria, 111.</p> <p>DeKoven was cashier of- the Northwestern National Bank of Chicago. Diefendorf was a grain commission merchant, doing business in the city of Chicago, and Rae was engaged in the grain business in Peoria.</p> <p>Rae, desiring to purchase a quantity of wheat in Chicago, directed Diefendorf to make the purchase and to ship the same to New York for him, authorizing Diefendorf to draw upon him, so that the draft would come through the Second National Bank at Peoria.</p> <p>Diefendorf made the purchase for Rae and procured a bill of lading and insurance certificates for the same. He then drew the draft as above, and the Northwestern National Bank of Chicago advanced the money upon the draft, the bill of lading and insurance certificates being thereto attached. When the draft was presented to Rae, he refused to accept it and let it go to protest.</p> <p>The grain went on to New York and was sold at a loss; the proceeds of the sale went to the Northwestern National Bank and were credited upon the draft.</p> <p>Diefendorf afterward took up the draft, and brought this suit for the amount he had to pay in the transaction.</p> <p>The alleged liability of the Peoria bank is claimed as arising upon the following written correspondence and telegrams:</p> <p>Peoria, PL, June 29, 1870.</p> <p>R. Diefendorf, Esq., Chicago:</p> <p>Dear Sir—I have your telegrams of to-day, quoting corn. I would rather invest in wheat, and will give you orders to buy and ship immediately fifty thousand bushels (50,000), the best No. 2, such as comes in on the Northwestern Railway, and is sold in New York at $1.28 Milwaukee. I want it shipped lake and rail. Through bill of lading letter from Chicago, says 21 through lake and rail, weight guaranteed, free of lighterage. Do your best, and get the very best possible shipping arrangements. I think to-morrow will be a good day to buy. I must insist on draft coming through Second National Bank, Peoría, as I have to make arrangement for' time paper, and they don’t want to be out of the currency, and can pay it in New York exchange. So bill to Preston & Edwards, and draw at sight on me with bill lading, insurance policies and inspector’s certificate. If you deposit with the Manufactor’s Bank in Chicago, the draft will come to Second National Bank here, and be sure to draw payable in New York exchange. Hoping you will this big order, I remain, yours truly, J. W. Rae.</p> <p>Received at Peoria, 11:40, A. M.</p> <p>Chicago, June 30, 1870.</p> <p>To J. W. Rae:</p> <p>Wheat $1.06 aboard, freight 20 to 21. Have your bank telegraph Northwestern National Bank that they will advance cost on receipt of bill lading. Answer quick.</p> <p>R. Diefendorf.</p> <p>Received at Chicago, June 30, 12:20 P. M.</p> <p>Pe°ria, PL, 30th, 1870.</p> <p>To R. Diefendorf :</p> <p>Bank here says, “ if Northwestern will send draft to them, they can take care of it.” Draw as per instructions.</p> <p>J. W. Rae.</p> <p>Received at Peoria, June 30, 1 P. M.</p> <p>Dated Chicago, 30, 1870.</p> <p>To J W Eae-</p> <p>Wheat now $1.07 aboard. Think I will get some at this, afternoon. Freight probably twenty cents. My bank says that they will send the Second National Bank. Have them telegraph that they will advance on bill lading.</p> <p>B. Diefendoef.</p> <p>Peoria, III., June 30, 1870.</p> <p>E. Diefendoef, Esq., Chicago :</p> <p>Dear Sir—I have your second telegram late this afternoon. I regret you did not fill my order at once. If your bank wants any information, let them telegraph my bank—it is not for this bank to telegraph. They say they don’t know what you mean in asking them to advance on wheat. I am ready to pay the draft on presentation. I look for wheat to advance in a‘few days, and hope you will make no delay in following instructions.</p> <p>Yours, truly, J. W. Eae.</p> <p>Received at Chicago, July 1, 9 A. M.</p> <p>Peoria, PL, 1, 1870.</p> <p>To É. Diefendoef:</p> <p>Can you execute orders to-day?</p> <p>Answer quick.</p> <p>J. W. Eae.</p> <p>Diefendorf answered immediately:</p> <p>“Yes, if your bank will telegraph Northwestern National, here, they will advance on bills lading. Wheat opens six in store.”</p> <p>Received at Chicago, July 1, 12:05 P. M.</p> <p>Peoria, PI, 1, 1870.</p> <p>To E. Diefendoef :</p> <p>My bank say they will telegraph Northwestern everything aI1 riShtl J. W. Eae.</p> <p>Received at Chicago, July 1, 3:30 P. M.</p> <p>Peoria, III., 1, 1870.</p> <p>To John De Koven, Cashier:</p> <p>Draft on Eae will be protected, provided bills of lading, transfers, insurance and amount drawn for are all right.</p> <p>L. Howell, Pres’t.</p> <p>Howell was president of the Second National Bank of Peoria, and this dispatch is the foundation of plaintiff’s claim.</p> <p>JulV 1’ 187(X</p> <p>J. W. Rae, Esq., Peoria:</p> <p>Dear Sir—Your telegram, inquiring if I could fill your order to-day, was duly received. I answered yes, if your bank would telegraph the Northwestern National, here, that they would advance, etc. The Northwestern has just received Mr. Howell’s dispatch (5 P. M.), saying my draft on you would be protected if transfers, etc., were right, and the amount drawn for was correct. It will, of course, be too late to do anything to-day but to see where we can get it to-morrow. Doubtless can get up one cargo. The cool weather has firmed up wheat considerably. Sales this P. M. at $1.07i in store. Will advise you of operations by telegraph to-morrow. Yours, truly, R. Diefendorf.</p> <p>Received at Peoria, 10:25 A. M.</p> <p>July 1, 1870.</p> <p>ToJ. W. Rae:</p> <p>Bought 25,000, 8|- in store, freight 20 cents. Ship to-day.</p> <p>R. Diefendorf.</p> <p>This bears date July 1. It doubtless should be July 2. Rae, on the same day, replies by letter:</p> <p>I have your dispatch to-day, stating you have bought 25,000 bus. wheat, at $1.081- in store. I presume this is extra Northside wheat, as our quotations for No. 2 to-day are $1.06J. Please send large sample to consignee; also send me sample. Yours, truly, J. W. Rae.</p> <p>^ 2.</p> <p>To J. W. Rae, Esq., Peoria:</p> <p>Dear Sir—We inclose account of purchase, and shipped cargo prop. Plymouth, 24,917 bush. 2 wheat, and have drawn on you in N. Y. Ex. for $27,836.38. Our bank charges -f on Peoria. They say the banks there charge £ for ex., and its disct. here, thus leaving but small margin, after all, for the use of the money. On Friday, after Mr. Howell telegraphed the N. W. bank, wheat was decidedly firmer, and the general impression prevailing that it would go still higher. Saturday-evening, on the “open board,” the price was $1.08j- to $1.09, and difficult to purchase. I thought best to buy, as your instructions were positive, and there had been so much delay, but on the opening of change the price receded. It only shows that it is out of the question to tell how it will go. This cargo is in fine condition, croaking to the contrary. Please telegraph Tuesday A. M. whether we shall buy the balance or not. Let us know how much Mr. Howell charges. We may get an abatement on the ex.</p> <p>Yours, truly, B. Diefendorf.</p> <p>Diefendorf sent with this letter his bill of advances, including $498.34 for storage, $87 for insurance, $12.46 for inspection, and $124.58 for his own commissions. On the 4th of July, Bae ordered Diefendorf not to fill the balance of the order.</p> <p>Peoria, 111., July 5, 1870.</p> <p>B. Diefendorf, Esq., Chicago:</p> <p>Dear Sir—I have yours of the 2d, and note contents. The draft was presented to-day, and I refused to pay, as it was altogether too much. When I gave you orders to buy the wheat, I gave it on your telegram of 1.06 on board, and you make it about 1.11. This is too much of the good thing.</p> <p>Yours, truly, J. W. Bae.</p> <p>Peoria, July 5, 1870.</p> <p>John DeKoven, Esq., Cashier, Chicago, 111.:</p> <p>Dear Sir—Your favor of the 4th inst., with inclosure, as stated, rec’d. The same is herewith returned, protested, for non-payment. J. W. Bae, sight, $27,836.38; protest fees, $2.30, cy. Dr. Mr. Bae claims that the wheat against which this was drawn was purchased at 1.06 free on board, whilst it is invoiced at higher rates, with shipping charges.</p> <p>Very respectfully, yours, L. Howell, Pres’t.</p> <p>The court below, upon a trial without a jury, found for the plaintiff in the sum of $3528.64, and rendered judgment accordingly, from which the defendant appealed.</p>

<p>Writ of.Error to the Circuit Court of Lee countyj the Hon. William Brown, Judge, presiding.</p>

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

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

<p>1. Judicial notice—of the incorporation of milage under general lam. Where a town previously organized under a special act assumes and is acting as a village, which it can only do under the general law for the incorporation of cities and villages, and the evidence shows it assumed to act as a village in the passage of ordinances, and in the bringing of suits in its corporate village name, this will be sufficient to enable this court to take judicial notice of its organization under the general law, without proof that all the requirements of the statute have been .complied with.</p> <p>2. Practice—-¡specific objection to evidence. Where the proof showed that a village ordinance was, within five days after its passage, posted in three public places in the village, there being no evidence that there was no newspaper published in the village at the time, and the ordinance was objected to generally on the trial, it was held, that the objection it was not published in a newspaper could not avail in this court, as, if made below, it might have been obviated by showing no such paper was published in the village.</p> <p>3. An objection to an ordinance, in this court, for the first time, that it does not appear it was passed by calling the ayes and noes, where the record of the village trustees was not offered in evidence, can not avail the party objecting.</p>

<p>1. Wager—on result of an election, void. A bet on the result of an election, and the agreement growing out of the same, for the stakeholder to pay the moneys deposited with him to the winner, is illegal and void.</p> <p>2. Chancery jurisdiction—to set aside contracts on wager. Courts of chancery will assume jurisdiction to restrain the enforcement of unexecuted contracts founded on wagers or bets prohibited by law.</p> <p>3. Chancery—bill to avoid wager on election. A bill to restrain a stake-, holder from paying over money deposited with him by the complainant, on a bet on the result of an election, and to compel its return, should, in clear and unequivocal terms', show that the stake is still in the hands of the defendant, and that he refuses to return the same, after demand.</p>

J. W. Cochran, Judge, presiding. This was an action on the case, brought by appellee, as administratrix, against the appellant, for causing the death of her husband at a highway crossing, through the negligence of appellant’s servants in charge of a freight train running on the Buda and Bushville branch of its road, on August 17, 1874.

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

Samuel M. Moore, Judge, presiding. This is an information in the nature of a quo warranto, instituted in the Criminal Court of Cook county, charging appellant with usurping the office of West Chicago Park Commissioner. Judgment of ouster was given against appellant, and he asks a reversal of that judgment.

<p>Landlord and tenant—tenant must pay rent until he surrenders possession. If a tenant retains possession of the leased premises, either actual or constructive, he will be liable for the rent so long as his possession continues, even though he may have good cause for abandoning the same before the expiration of the term, for the acts of the landlord, or omission of duty on his part.. Before the tenant can defend against the payment of rent, he must abandon the premises. A retention of the keys of a rented building by the tenant is a constructive possession by him.</p>

Samuel M. Moore, Judge, presiding. This was a creditor’s bill filed by Albert P. C. Bonte, who was a judgment creditor of one Benjamin P. Hinman, to reach certain moneys in the hands of appellees, Uhlich & Muehlke and Thomas J. Cooper, which appellant claims belonged to Hinman.

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

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

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

Samuel M. Moore, Judge, presiding. This was a bill filed by William T. Johnson, against the administrator, widow and heirs at law of Robert E. Mulvey, deceased. From the decree rendered in the case the defendant, Ellen Mulvey, appealed to this court, and Daniel T. Mulvey and Ellen Mulvey, the administrators of the estate of Robert E. Mulvey, prosecuted a writ of error from this court to reverse the decree.

W. K. McAllister, Judge, presiding. The appellee, Rockwell, holding two promissory notes against appellant, both past due, commenced, on the same day and at the same time, two suits before a justice of the peace against Nickerson upon said notes, one suit upon each note, and the justice numbered said suits upon his docket in the order in which the writs were actually written, although otherwise they were commenced at the same time.

Joseph Sibley, presiding Justice, and the Hons. Edwin S. Leland and N. J. Pillsbury, Justices. This was an action brought by the appellee against the appellant, originally before a justice of the peace, to recover a balance due on wages as a miner. On appeal to the circuit court the plaintiff recovered judgment for $54.17 and costs. On appeal to the Appellate Court of the second district, the judgment was affirmed.

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

Josiah McRoberts, Judge, presiding. On the trial of this case in the circuit court the plaintiff called a witness, who testified that on the second trial of the cause before the justice of the peace the defendant was sworn, and in his testimony admitted that the copy of the note produced by the plaintiff was a true copy of the original and of the indorsements thereon.

Arthur A. Smith, Judge, presiding. Bill was filed by Clement L. Pierce and John L. Woodmansee, in the court below, against Truman Eldridge and others, praying for the foreclosure of a mortgage.

<p>1/ Foreclosure in Federal court—decree of sale without redemption—effect upon the statutory right to redeem. Where a decree of the Circuit Court of the United States, on a bill to foreclose, found the sum due under the mortgage, and required its payment by a given time, and ordered a sale without redemption in case of default in payment, it was AeM, that even if the latter part of the decree was void it did not invalidate the residue, or make null all the subsequent proceedings in its execution, but that the mortgagor might have redeemed within one year from the sale, notwithstanding the master’s deed, and not having done so or offered to redeem within the time given by statute, t.he deed was not void, though given before the expiration of the period allowed for redemption.</p> <p>2. It seems that in a decree of foreclosure, a mere order of sale, without saying anything as to redemption, would be good, and such a decree would not defeat the right to redeem, which is conferred by the statute and not. by the decree of the court.</p> <p>3. If the officer selling land under a decree of foreclosure which simply orders sale for default in payment, should disregard the statute, and instead of giving a certificate of purchase should give the purchaser a deed at once, it would not defeat the right to redeem, nor give the right of present, possession, at least in equity, hut the deed would remain inoperative in effect until the expiration of the time given for redemption by the statute, when it may stand as a valid execution of the decree.</p> <p>4. Where a decree for the foreclosure of a mortgage directed the sale of the mortgaged premises without, allowing the statutory right of redemption, it was held, that if it was merely erroneous in this respect, it could not be questioned collaterally, but if void, so far as it denied the right of redemption, it could not have the effect to deprive of that- right., and a bill filed by the mortgagor after the time prescribed by the statute for redemption had expired, to redeem from the mortgage and to have the master’s deed set aside as a cloud on the title, showing no attempt or offer to redeem from the sale within the time given by law, was without equity and properly dismissed.</p>

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

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

<p>1. Agency—proof of agents authority. A paper purporting to be an authority from a plaintiff to an attorney to make demand for the possession of land and bring an action of forcible detainer, the attorney testifying to having prepared the writing and the sending of the same by mail to the plaintiff and his receiving it back signed, will be sufficient proof of the attorney's authority to make a demand in writing, in his client’s name, of land, before bringing suit for its possession.</p> <p>2. Forcible detainer—proof of possession. Proof unobjected to, by a witness, that a defendant in a suit of forcible detainer was managing the land formerly owned by his son, and had possession, as the witness understood, since the son had left the State, is sufficient to authorize suit against the defendant, when wholly uncontradicted.</p> <p>3. Where the evidence showed that a party, after giving a mortgage on his land, left the State, leaving the premises in the possession and control of his father, it was held, in forcible detainer against the father by a purchaser, under a power of sale in the mortgage, that the defendant could not, after having taken possession under his son, attorn to a third person and give him possession, so as to avail against the right of the purchaser under the mortgage.</p> <p>4. Power of sale—who may execute on death of mortgagee. Where a mortgage on land confers a power of sale upon the mortgagee, his legal representatives or attorney, on default of payment, and the mortgagee dies, so that the indebtedness secured passes to his administrator, the latter may properly exercise the power as the legal representative of the mortgagee.</p> <p>5. Former adjudication—as a bar to suit. The record of a former judgment in a suit of forcible detainer, showing that the plaintiff had not made out his case, though for the same land, is not sufficient to bar a second suit, without extrinsic proof showing that the cause of action was the same in the prior as in the last suit. Where the only demand of possession shown appears to have been made after the determination of the first suit, the judgment for the defendant therein can not be held a bar to the second action brought after such demand.</p>

<p>1. Assault and battery—jurisdiction. The circuit tíourt has no original jurisdiction in cases of assault or assault and battery, it being conferred upon justices of the peace.</p> <p>2. A defendant can not be indicted for an assault and battery, nor can a conviction be had of such offense, under an indictment for a riot, they being two distinct offenses.</p>

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

<p>Writ of Error to the Superior Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding.</p>

<p>1. Contract—by letter, when closed. A letter written in reply to an offer, which restates the terms of the offer, but with some variations, though slight, can not be regarded as the consummation of a contract, and requires an acceptance upon the terms thus stated, and until unequivocally accepted, is only a mere proposition or offer.</p> <p>2. Where a person makes an offer by post, asking for, or where from the nature of the business he has a right to expect, an answer by return mail, the offer can only endure for a limited time, and the making of it is accompanied by an implied stipulation that the answer shall be by return mail, and if that implied stipulation is not satisfied, the person making the offer is released from it.</p> <p>3. Where a person sent by letter an offer to engage the plaintiff as a trimmer in his millinery shop, asking for a prompt reply, which letter was received by the plaintiff on the 22d day of March, which she answered by postal card on the next day, accepting the offer*, and which, if then mailed, would have reached the defendant on the 24th, but which she gave to a boy to mail, who neglected to mail it until the 25th, it was held, that the defendant was not bound by his offer, the plaintiff not having mailed notice of her acceptance in sufficient time, nor was he bound, after receiving her answer, to notify her that her acceptance had not been signified in .time,-—and his intention afterwards to accept her services, and attempt to see her, not having been acted on, would not change the rule of law.</p> <p>4. The negligence of a party’s agent in mailing her letter accepting an offer to employ the writer of the letter, is her own negligence, and the writer must bear the consequence of the delay in her agent in mailing the same.</p>

<p>1. Recording daw—deed first recorded takes precedence. Under our recording Laws .where a party makes two conveyances of the same land, the deed first filed for record is given the preference and passes the title.</p> <p>2. Same—presumption as to time of recording. Where a clerk’s certificate to a copy of the record of a deed states it to be a true copy as “ appears of record in book D, pages 172, etc., first of State recorder’s office at Vandalia, Illinois, and now in” his office remaining, but there is nothing to indicate when the deed was recorded, it will be held to have been recorded in the State recorder’s office some time before June 1, 1833, the day such office was abolished.</p> <p>3. Possession—no presumption when taken. Where a party claiming title to land is shown to have been in possession in 1866, it can not be presumed that any one was in actual possession in or prior to the year 1833, when a deed was recorded under which an adverse claim in made.</p> <p>4. Mortgage—conveyance of mortgagee’s interest. A mortgage being a mere incident to the mortgage debt, a conveyance of the mortgagee’s interest in the land without foreclosure, and without an assignment of the debt, is considered, in law, a nullity and passes no title.</p> <p>5. Evidence—decree against one not a party. A decree in a suit for the partition of land by heirs, which finds the allegations of the petition true, among which is that of the death of a person and the heirship of the parties, is prima facie evidence of the death and heirship, against a party in ejectment, though he was not a party or privy to the partition suit.</p>

Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. On the 28th of July, 1876, judgment was entered by confession, upon a cognovit, in favor of Wohlleben against Rolle and Crossman, for $787.23, under a power of attorney authorizing the same to be done, upon a promissory note in these words: “$787.23 Chicago, March 8, 1873.

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

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

<p>Insurance—waiver of proof of loss at home office. If a policy of insurance requires notice and proof of a loss to be delivered to the secretary of the company at the home office, and it is given to a local agent of the company without objections on this score, and payment refused upon a claim that the policy had been canceled, the provision in the policy as to the place of giving the notice and proof will be regarded as waived, and can not be set up to defeat a recovery on the policy.</p>

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

<p>Writ of Error to the County Court of Cook county; the Hon. Martin R. M. Wallace, Judge, presiding.</p>

Gary, Judge, presiding. Strong and Young, the appellees, sued Linington, the appellant, in assumpsit. A nolle prosequi was entered as to all the counts of the declaration, except the first. A demurrer to this first count was overruled, and appellant stood by his demurrer. The court assessed the damages at $300, and rendered final judgment therefor.

<p>1. Park commissioners—statute authorizing vacancies to be filled by circuit judge not unconstitutional. The authority conferred by the statute on the judge of the circuit court of Cook county to fill vacancies in the offices of the South Park Commissioners, was not in violation of the constitution of 1848, or of any provision of the present constitution, and an appointment to fill such a vacancy, by each and every of the judges of the circuit court of Cook county, is valid and legal.</p> <p>2. Constitutional law—prohibition of one branch of the government from performing duties of another. The constitutional provision dividing the powers of the State government into three departments, and prohibiting one branch from exercising any power properly belonging to either of the others, except as is therein permitted, is general and does not define what acts may be performed by each department. That instrument has no provision which, in terms, declares that the appointment of municipal officers shall be exercised by one or another department, nor whether such appointment is the exercise of legislative, executive or judicial power. Such power seems to be only ministerial and may be conferred on persons holding judicial offices.</p> <p>3. Same—■power to levy taxes does not pertain to the executive or judicial department. Under the constitutional provision distributing the powers of the government, neither the executive department nor judicial department can levy and collect municipal taxes, but the legislature may confer that power upon such corporate bodies, and may vest the power directly in the corporate authorities chosen by the people, or may, in creating the municipality, confer the power on authorities to be appointed by some other functionary or individual, and submit the charter to the people, and if they adopt the same, that will be an assent by the people that such functionary may appoint the corporate authorities for their government.</p> <p>i. When the people of a municipality, by vote, adopt a charter which provides for filling vacancies in the municipal authorities by a judge of the circuit court, such appointees will have the power to assess, levy and collect taxes for municipal purposes as provided in the charter, and there is nothing in the constitution prohibiting a circuit judge from making such appointments.</p>

<p>Appeal from the Appellate Court of the First District; the Hou. Theodore D. Murphy, presiding Justice, and the Hon. George W. Pleasants and Hon. J. M. Bailey, Justices;</p>

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

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

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

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

<p>1. Pakol evidence—as affecting written contract. Parol evidence is not admissible to fix the time when a written contract is to be performed. A contract can not rest partly in writing and partly in parol.</p> <p>2. Contract—lime of performance, when not expressed. Where no time is expressed in a written contract for the performance of its terms, the law will imply that it shall be within a reasonable time.</p> <p>3. Mechanic’s lien—when no time is fixed for performance. The statute gives a mechanic’s lien under a contract which fails to express any time for performance, and is therefore to be performed within a reasonable time, if the work, etc., is completed within one year from the commencement of the same, and interest is allowable on the sum found due under the contract.</p> <p>4» Practice—time to object for variance. Where a bill or petition is dismissed upon the merits erroneously, the decree will not be sustained in this court merely on the ground of a variance between the petition and proofs. Such objection must be urged below so that it may be obviated by amendment.</p> <p>5. Amendment—to obviate variance, allowable on hearing. A petition for a mechanic’s lien may be amended on the hearing to obviate a variance, and this without a continuance, unless it is made to appear that the opposite party is taken by surprise.</p>

<p>1. Bounty—resolutions for, construed. A resolution of a board of supervisors, for the payment of a bounty of $100 to all residents of the county who had enlisted in the military service of the United States under either of the calls for 300,000 men, or under the call for 200,000, or who should enlist up to a given day, passed in February, 1864, does not apply to and embrace volunteers who enlisted prior to these calls.</p> <p>2. A subsequent resolution extending the bounty provided in the prior resolution “'to all who have enlisted in the service of the United States for the period of three years, prior to this date,” was held only to embrace volunteers from the county, and only such as had volunteered under the two calls named in the prior resolution, and not one who had enlisted in 1861.</p> <p>3. Same—consideration necessary to promise to pay. A resolution of a board of supervisors, promising to pay a bounty to persons who had previously enlisted in the military service of the United States in the late civil war, without any assurance of a bounty before enlisting, will create no indebtedness, for want of a consideration to support the promise, and for the want of legal authority in the board to make the same.</p> <p>4. Same—volunteer must he credited to the county. The act of January 18, 1865, in relation to the payment of bounties by counties to volunteers in the military service of the United States, only authorized the levy of a tax to pay indebtedness that haá been or might be incurred for bounties to volunteers who had or should enlist, and be credited to the quota of the county. Therefore, a declaration in a suit against a county to recover such bounty is fatally defective if it does not aver that the plaintiff’s enlistment was credited to the county.</p>

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

Writ of Error to the Appellate Court of the Second District; the Hon. Joseph Sibley, presiding Justice, and the Hon. Edwin S. Leland and Hon. N. J. Pillsbury, Justices.

J. W. Cochean, Judge, presiding. This was ejectment by appellee, the plaintiff below, against appellants, the defendants below, to recover a valuable tract of land in Stark county.