text:
    Agricultural Insurance Company v. William Frith, Guardian.

      Fire Insurance — Loss when House is Unoccupied — Evidence.
    In an action upon a policy of Are insurance it is held: That the verdict for the plaintiff is manifestly against the weight of evidence, which shows the house to have been unoccupied at the time of the loss within the meaning of the clause exempting the defendant from liability while unoccupied.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.
    Mr. Elbert H. Gary, for appellant.
    The chi use in a policy of insurance that it shall be void during unoceupaney as a dwelling of the building insured, is binding and effective. Its meaning is that there must be a person living in the building at the time of the fire or the policy will be avoided. ' American Ins. Co. v. Padfield, 78 Ill. 167; Same v. Foster, 92 Ill. 334; Keith v. Ins. Co., 92 Mass. 228; Lith v. Ins. Co., 136 Mass. 491; Bennett v. Agl. Ins. Co. (51 Conn.), 13 Ins. L. Jrl. 817; Alston v. Ins. Co., 80 N. C. 326; .Ætna Ins. Co. v. Meyer, 63 Ind. 238; Herman v. Ins. Co., 85 N. Y. 162.
    The uncontradicted evidence shows that the house in question was, at the time of the fire, “ unoccupied as a dwelling.” In such an event the policy provides it shall be void and of no “force so long as said dwelling house shall be so unoccupied.”
    Messrs. Stephen R. Moore and O. G. Bartlett, for appellee.
    The proof shows the house was to be occupied as a tenement house, and is so expressed in the policy. The house was worth but little over $100. The insurance company knew that such a house commanded poor tenants. There is no dispute, the tenant paid the rent to JSTovemher 1st; that the tenant was in jail for a failure to pay a fine for assault and battery ; that his wife remained in the house until two weeks or less before the fire. She took the child to her parents intending to return to the house. She says she left Tracey’s effects in the house when she went away, but left the key with him, or his legal custodian, the Sheriff. Tracey left his effects in the house. It is true they were very poor people, and their goods were of but little value, but such as they were he kept them in this house, and the proof shows the house was occupied. Two juries pass on this question o'f fact, and it is matter purely for tlie jury, and the court can not say that the jury was not warranted in so finding.
   Lacey, J.

This was a suit commenced by appellee against appellant before a Justice of the Peace, and from there appealed to the Circuit Court, and finally, after one verdict had been set aside and a second one resulting in appellee’s favor and damages assessed at $108.88, the court overruled a motion for a new trial and rendered judgment in favor of appellee, and from this judgment this appeal is taken.

The main defense was made under the following clause in the insurance policy, to wit: If without the written consent of the company indorsed on the policy such dwelling house shall cease to be occupied as a dwelling, then so long as said dwelling house shall be so unoccupied, this policy shall be void and of no force or effect.” The house insured was a dwelling house, and insured by appellee as the guardian of Frank Hasney, a boy eleven years old, who was the owner of the house and lot in question. The house was totally destroyed by fire about 10 o’clock at night, October 15, 1884, and was worth over $100. The evidence is that the dwelling house so insured had been occupied by a tenant, one H. M. Tracey and wife, until two weeks before the last day of July immediately preceding the time it was consumed by fire. On the last day of July H. M. Tracey became involved in some trouble and was fined one dollar, and sent to the county jail, and remained there until October 24th following the fire. Mrs. Traccy, the wife of H. M. Tracey, continued to occupy the dwelling until about two weeks previous to the fire, when she left the house and went to Mattoon, Illinois, and hired out as a servant to do general housework. Upon leaving she sold all the furniture and household goods, except one old cupboard she made herself, locked the door, and gave the door-key to one Uickols, to hand to the Sheriff for her husband. PTo other occupant was in the house till the time of the fire. It may be she intended to return to the house at some indefinite time. It is quite clear that this house was not occupied as a dwelling. But appellee contends the evidence brings the case within the rule announced in the case of Phoenix Ins. Co. v. Tucker, 92 Ill. 64. We do not think it falls within the rule announced in that case, but rather within the rule announced in the case of the American Ins. Co. v. Padfield, 78 Ill. 167.

“ The clause in the policy should not be construed to mean a constructive, but an actual occupation.” We therefore think the verdict was manifestly against the weight of the evidence. So holding it is not necessary to notice any of the other objections raised. Because the verdict is greatly contrary to the weight of the evidence, the judgment is reversed.

Judgment reversed.


source: Caselaw Access Project

author: Welch, J.

license: Public Domain

text:
    Ernest Radeke v. George H. Cook.

      Practice — Question for Jury — Objections, not Raised Below — Newly Discovered Evidence.

    1. Where the question involved is one of fact, this court will not interfere with the verdict of the jury unless it is clearly against the weight of evidence.
    2. An assignment of error based on newly discovered evidence does not lie when it was not specified in the motion for a new trial.
    3. An objection, raised here for the first time, to the filing of counter affidavits on a motion for a new trial, can not be considered by this court.

      [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Richardson Bros., for appellant.
    Mr. James N. Orr, for appellee.
   Welch, J.

This was an action brought by the appellee against the appellant before a Justice of the Peace to recover a balance claimed to be due for painting, etc. The appellee recovered a judgment in the Justice’s court and also in the Circuit Court. By the contract originally made, appellee was to paint the house of the appellant with two coats of plain painting outside and upstairs, and lower part, except bed-room grained or oiled, as appellant should wish. The price agreed upon for the work was $150, appellee to furnish all the material. Appellee claims that after he had commenced and painted the outside of the house one coat the appellant changed his building and put the up stairs hard pine finish, and changed the painting to hard oil finish and varnish; that this change required him to shellac all the doors and frames and rub them down and then put on two coats of hard oil finish and one coat of varnish; that the material cost more and required one-third more time, and that he was entitled to $15 extra, and for the other work not included in the original contract he claimed $9.50, making his .claims the sum of $174.52, on which he admits he had received the sum of $111. The appellant claims to have paid prior to the suit the sum of $125.75 and the sum of $38.50 in a garnishee proceeding on a judgment in favor of Keerrosch and Stoge against the appellee. This sum was paid while this suit was pending, making the sum claimed to have been paid by the appellant to the appellee $160.20. The evidence was conflicting, but that for the appellee, if true, established a claim for $63.52 without deducting the sum of $38.50 paid by appellant as garnishee. The jury evidently relied on his testimony but deducted from his claim the amount appellant had paid as garnishee and gave their verdict for the exact balance, $25.02. There was no exception taken to the evidence. Ho instructions were asked or given. The question submitted to the jury was one of fact. When that is the case unless the verdict is clearly against the weight of the evidence, the verdict will not be disturbed. Johnson v. Smallwood, 88 Ill. 73; McClelland v. Mitchell, 82 Ill. 35; Corwith v. Colter, 82 Ill. 585. The verdict in this case is sustained by tfcie evidence.

It is insisted by the counsel for the appellant that the court erred in overruling appellant’s motion for a new trial on the ground of newly discovered evidence. Appellant did not o assign in his written motion for a new trial newly discovered evidence as one of the reasons for it. Sec. 56 of Practice Act provides, “ if either party may wish to except to the verdict or for other causes to move for a new trial, * * * he shall, before final judgment be entered or during the term it is entered, by himself or counsel file the points in writing particularly specifying the grounds of such motion.” We hold that newly discovered evidence not having been specified in his written motion as one of the grounds for a new trial, that no error can now be assigned as to the action of the court based on newly discovered evidence. That question was not before the court in such way as to require the court to pass upon it. We can not presume that the court did pass upon it.

It is also insisted that the court erred in allowing counter affidavits to be filed to those filed by appellant based on the ground of newly discovered evidence. In view of what we have said as to the ground for a new trial based on newly discovered evidence, there was no error. The record shows no exception or objection to the filing of the counter affidavits. It does not appear that they were used on the motion for a new trial. If they were submitted on the motion it was by consent and without objection. Appellant can not now be allowed to complain. Pinding no error the judgment is affirmed.

Judgment affirmed.


author: Lacey, J.

text:
    David N. Lowe v. The Town of Aroma.

      Highways — Obstruction—Action for Penalty — Evidence—Act of 1851— . Sec. 52, Chap. 121, R. S. —Official Action — Presumption of Regularity.

    1. In an action to enforce the statutory penalty for the obstruction of a highway, it is held: That the verdict for the plaintiff is supported by the evidence; that the order of the Commissioners, laying out the road, was properly admitted, although the record showed no assessment and payment of damages, the act of 1851 not requiring a record of anything but the order; that Sec. 52, Chap. 121, R. S., is also applicable; that the evidence shows the 11 road was duly established and opened; and that it established the existence of the road by user for a period of more than twenty years prior to the alleged obstruction.
    2. Sec. 52, Chap. 121, R. S., making the Town Clerk’s record prima facie evidence of the regularity of official action in relation to highways, applies where the road was established before as well as after its enactment.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Richardson Bros, and T. P. Bonfield, for appellant.
    Mr. H. K. Wheeler, for appellee.
   Lacey, J.

This action was brought before a Justice of the Peace by appellee against appellant to enforce the statutory penalty for obstruction of a highway. A trial was had before the Justice and resulted in judgment in favor of appellee for §22, from which an appeal was taken to the Circuit Court where a new trial was had before a jury and verdict and judgment in favor of appellee for §3 and costs, from which the appeal is taken. The main cause of error assigned by appellant is that the verdict is against the weight of the evidence.

It is claimed that the appellee neither made out the existence of the road at the locus in quo at the time of the alleged obstruction by user or by being laid out by actual legal authority.

The appellee offered in evidence the order of the Commissioners of Highways ordering the laying out of the road in 1855.

This evidence was objected to on the ground that the record showed no assessment and payment of damages. This objection the court overruled and admitted the record in evidence. This is assigned for error. We perceive no error in this. At the time this road was laid out the Act under which the proceedings were carried on (the Act of 1851,) did not require any record of anything except the order laying out the road. Waddle v. Duncan, 63 Ill. 223.

Again, Sec. 52, Chap. 121, R. S., provides that, “the record of the Town Clerk, or a certified copy of such record) and papers relating to the establishment, location, alteration, widening or vacation of any road shall be prima facie evidence in all cases; that all the necessary antecedent provisions had been complied with, and that the action of the Commissioners or other person and officers in regard thereto was regular in all respects.” This provision applies to all cases as well as those where the road had been established before the act as after it. One Clark was the surveyor, and surveyed and located the road as here ported on the half-section line agreeable to the order of the Commissioners. It is attempted on the part of appellant to show that the actual survey of the road was not on that line, but west of it; that the road had been traveled west of the line of the locus in quo since 1855, the time of its establishment; that the road was not opened within five years from its laying out, and that the proceeding to establish the road in consequence became void. But we think the better evidence is that it was traveled east and on the half-section line, and that the obstruction and fence for forty rods was moved into the traveled road seven or eight years before the trial by the grantor of appellant, and in 1884 was removed by the Commissioners and set back again by appellant, and for this obstruction this suit is brought. We think the" appellee has established by a clear preponderance of the evidence that the road was established by legal authority and opened within five years therefrom, and besides, has as well established its existence by user for a period of time for more than twenty years before the alleged obstruction. The verdict is clearly justified by the evidence, and we find that the instructions as a whole are fair. It would serve no good purpose and we will not undertake to examine all the evidence or instructions in detail, but are satisfied that justice has been done.

Finding no error in the record the judgment is affirmed.

Judgment affii'med.


text:
    The City of Elgin v. Ellen Riordan.

      Municipal Corporations — Defective Sidewalk — Action for Damages for Personal Injuries — Variance—Evidence—Instructions—Verdict, not Excessive.

    In an action against a municipal ■ corporation to recover damages for a personal injury resulting from a defective sidewalk, it is held: That there is no variance between the declaration and the evidence; that evidence as to the condition of the stringers was properly admitted under an allegation that there was, and for a long time had been, loose and broken planks and holes in, and upon and along said sidewalk; that certain instructions, making it plaintiff’s absolute duty promptly to employ competent medical treatment, were properly modified; and that a verdict for $500 for plaintiff is not excessive.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.
    Messrs. Frank Crosby and F. W. Joslyn, for appellant.
    The cause assigned for the alleged injury having been set forth with minuteness and particularity, the cause made by the proof must correspond with the averment, or there can be no recovery. 1 Chitty’s Pleadings, 7 Am. Ed., 427.
    In a case in which the declaration charged that the injury was received by reason of broken planks in the sidewalk, and the proof showed that the effect was that two planks had been removed from the sidewalk, the variance between allegation and proof was held fatal. Bloomington v. Goodrich, 88 Ill. 558.
    The fifth instruction as given, entirely ignored the element • of contributory negligence on the part of the appellee in not employing a physician. This omitted element should have appeared. W., St. L. & P R. R. Co. v. Rector, 104 Ill. 296, 305; T., W. & W. R. R. Co. v. Eddy, 72 Ill. 140.
    Appellant was entitled to an instruction upon the hypothesis that the evidence showed appellee’s injuries were aggravated by her own neglect. H. & St. J. R. R. Co. v. Martin, 111 Ill. 219, 234.
    Mr. James Coleman, for appellee.
    A city is liable for injuries caused by defective sidewalks when it knows, or can by ordinary care know, that they are out of repair and in a dangerous condition, and then sufficient time elapses in which to make the necessary repairs before the injury is received. Bloomington v. Bay, 42 Ill. 503; Joliet v. Verley, 53 Ill. 58; Chicago v. Langlass, 66 Ill. 361; Chicago v. McCarthy, 75 Ill. 602.
    If the sidewalk was out of repair for a long time before the accident occurred, that constitutes notice. Springfield v. Doyle, 76 Ill. 202; City of Chicago v. McCarthy, 75 Ill. 602.
   Welch, J.

This is an action on the case against appellant to recover damages by reason of an alleged injury received by appellee upon a sidewalk in the city of Elgin on the east side of State Street. The declaration contains four counts: The first averring that there were at, etc., loose and broken planks and holes upon and along said sidewalk and that a person who was then walking with appellee stepped on or near the end of one of the planks which was then and there loose, unfastened and unnailed in said walk ; that the same flew up and tripped her and threw her with great force and violence upon the ground so that then and there her left arm was by reason of such dangerous, dilapidated and defective sidewalk sprained, fractured and broken, and she was otherwise greatly sprained, hurt, bruised and injured, etc. •

The second count avers that appellee was tripped up by a loose, unfastened, unnailed plank and was thrown with great force, etc.

The third count avers that appellee was tripped up by a loose and unfastened plank and thrown, etc.

The fourth count avers that appellee was tripped up by a loose and unfastened plank and thrown, etc.

It is first insisted by counsel for appellant that the evidence does not supjDort the declaration. That there was a variance between the allegata etprobata. The appellee says she went to the coal yard on the west side of Fox river with her husband and Mr. Bartels ; when she was coming back on the wa'k Bartels on the inside and she on the outside of the walk, Bartels stepped on a loose plank, she stepped after him and was tripped up and stumbled down ; she thinks the plank that flew up was about six or eight inches wide; Bartels says he went with appellee to the coal yard and as they were returning on the sidewalk, appellee was on his right side, that he stepped on a board, it flew up and she fell and hurt her wrist; the end of the plank where she was, flew up; she got her foot under it and fell. Patchen says : “Appellee was about a foot back of Bartels who stepped on the end of a plank; appellee stumbled and caught her foot under a plank; Bartels stepped a little over the stringer and that raised up the other end; he stepped right off but it caught appellee’s foot and she was tripped.”

We are unable to perceive any variance. The averment that -appellee was tripped up by a loose and unfastened plank” is substantially proven by the testimony.

It is further insisted by counsel for appellant that the court erred in admitting evidence as to the condition of the siringers, there being no specific averment in the declaration as to their condition. The averment is that the sidewalk was defective in this, to wit: That at said date there was, and for a long time prior thereto had been, loose and broken planks and holes in, upon and along said sidewalk, and that said loose and broken planks and holes had been permitted and suffered by appellant to be out of repair, and so remain and continue, etc. We hold that under this averment it was competent to show the condition of the stringers. If the stringers were in such condition that they would not hold nails and had been in this condition for a length of time sufficient for the appellant to know it, such fact was competent to go to the jury as tending to prove the averment that there was and for a long time prior thereto had been loose and broken planks and holes in, upon and along said sidewalk, and that they had been permitted and suffered by the appellant.

Bartels says: “ Sidewalk was laid on stringers; sidewalk was in poor condition ; stringers were all rotten — would not hold a nail; that this was the condition of the walk prior to June 5, 1883, and this condition of things remained until appellee was hurt.” Flynn says: “ This walk was a little poor all over, loose boards, a little rotten. This was before accident, might have been two or three weeks, might have been two months.” Patchen says: “ Had been about these premises before this accident; have stumbled over this plank two or three times before ; that it never flew up before — this was about two or three weeks before the accident.”

It is further insisted by counsel for appellant that the court erred in modifying the fifth and seventh of appellant’s instructions. By the fifth instruction, the court was asked to instruct that no damages were recoverable as for a permanent injury, if the jury believe from the evidence that the plaintiff’s neglect to promptly employ competent medical treatment for her injury or her disobedience of proper directions as to the care of her injured arm, given her by her medical adviser, had caused her injury to assume such character of permanency. •

This instruction as given omitted the italicized words.

We hold that the modification was proper. It was not absolutely the duty of appellee to promptly employ medical treatment for her injury. It was only her duty to do as a prudent person would do under similar circumstances. This instruction as asked made it appellee’s absolute duty to promptly employ competent medical treatment for her injury, and if her neglect to so employ had caused her injury to assume such character of permanency as it otherwise would not have had, as to such injury she could not recover. Thus ignoring the rule as stated, supra.

The seventh instruction as asked and given, stated the law in favor of appellant too strongly. By it, even as amended, appellee was required absolutely to employ a physician if she had the ability to do so, even though the jury may have believed that prudent persons would not have done so under like circumstances.

The rule of law in this respect should have been distinctly stated to the jury. The Toledo, Wabash & Western Railroad Co. v. David Eddy, 72 Ill. 140. It is also insisted that the damages are excessive. There is evidence to support this verdict and we can not say it is manifestly against the weight of the evidence. Bush v. Kindred, 20 Ill. 93; Goodell v. Woodruff, 20 Ill. 191; French v. Lowry, 19 Ill. 158. We are satisfied with the law as given to the jury and with their verdict.

Judgment affirmed.


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    Lester P. Wood v. William H. Loomis.

      Sales — Possession Retained hg Vendor — Fraud—What Constitutes Change of Possession — Replevin.
    I. An absolute sale of personal property, where the possession is permitted to remain with the vendor, is fraudulent per se and void as to creditors and purchasers.

      2. To constitute a change of possession there must not only be a delivery to the vendee but a continuing possession by him.
    3. In an action of replevin by the vendee of personal property against an officer who holds under a levy upon execution against the vendor, it is held; That there was no substantial change in possession, and that the circumstances indicate fraud in fact and in law.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of DeKalb County; the Hon. Charles Kellum, Judge, presiding.
    Messrs. D. J. Carnes and G. H. Denton, for appellant.
    Messrs. Jones & Bishop, for appellee.
   Welch, J.

This was an action of replevin brought by the appellee against the appellant, Lester P. Wood, Sheriff of .DeKalb County, who had taken the property in controversy (a horse, buggy and harness), in the possession of William Loomis, the father of appellee, on an execution against the said William Loomis. The case was tried in Justice and Circuit Courts and verdict and judgment rendered for appellee. The official capacity of the appellant, the judgment and execution against William Loomis, Sr., that he took the property while in the possession of William Loomis, Sr., and that the judgment and levy were ifbbsequent to the bill of sale of the property from William Loomis, Sr., to the appellee, and prior to the commencement of this suit, was admitted. It was also admitted that there was a proper demand made by the appellee and a refusal by the appellant to deliver the possession of the property before the commencement of this suit. The evidence shows that on October 9, 1884, appellee took an absolute bill of sale of the property in question of his father, William Loomis, Sr., indorsing on a note held by him on his father the sum of 8150, the purchase price of the property. At the time the bill of sale was given, William Loomis, Sr., said he would like to keep the property, and the appellee said, if he would take care of the property he did not want to use it and lie could keep it The property was left with William Loomis, Sr. The appellee and his father were living on the same lot; there was only one barn for the two houses, and; the barn was in the possession of and used by appellee’s father. The property had been kept in the barn prior to the making of the bill of sale and was kept there subsequently to the time of the levy of the execution thereon, except the horse, which was in the possession of appellee for a few days at Blackberry. The appellee states that after the sale he hitched up the rig and took his wife out riding. The rig was returned by him to his father. On the 21st of October, 1884, appellee moved to Blackberry and used the horse in moving, and did not take the harness and buggy. The horse was returned to his father in a few days and his father had been using the horse, harness and buggy all the time since the bill of sale except the time that the appellee had the horse at Blackberry. Appellee also states that he had owned other horses since the purchase of this one from his father; that he had bought two last spring before this execution was levied, and had bought a carriage and harness. The evidence shows that prior to the making of the bill of sale appellee was in the habit of driving the horse, and whether he drove him more before than after the bill of sale is uncertain. The property was left in possession of the father and he was to use it for its keeping.

We hold that the possession of appéllee was only temporary and was not inconsistent with the continued ownership and possession of the father. There was no substantial change of possession. The circumstances surrounding this case seem to indicate fraud in fact as well as in law. Chief Justice Sheldon, in Tickner v. McClelland et al., 84 Ill. 474, says: “ The policy of the law in this State will not permit the owner of personal property to sell it and continue in the possession of it. Possession being one of the strongest evidences of title to personal property, if the real ownership is suffered to be in one and the apparent ownership in another, the latter gains credit as owner and is enabled to practice deceit upon mankind. It is the well established doctrine of this court that an absolute sale of personal property where the possession is permitted to remain with the vendor is fraudulent per se and void as to creditors and purchasers.” “ On a sale of personal property by a debtor there must be a real permanent delivery and change of possession to enable the purchaser to hold the same against an officer levying an execution upon it for the debt of the vendor.” Reuben Allen v. Charles M. Carr, 85 Ill. 388; Thornton v. Davenport, 1 Scam. 296; Thompson v. Yeck, 21 Ill. 73. As to what constitutes a change of possession, Bump on Fraudulent Conveyances, 133, says: “It is not sufficient that a vendor gives to the vendee a delivery which may be symbolical or a temporary delivery and then takes the articles back into his own possession and keeps and uses them just the same as he did before. This is not the possession which the rule requires. There must not only be delivery but a continuing possession. This possession must be continuous, not taken to be surrendered back again, not formal but substantial.” 134, supra. The rule announced in Brown v. Riley, 22 Ill. 45-52, has no application to the facts of this case. In that case the loan by the purchaser to the seller was for a temporary purpose. In this case it was not a mere temporary borrowing by the vendor, but a continuous possession and use. In view of what we have said and in the light of . the authorities, supra, the court erred in overruling appellant’s motion to set aside the verdict and grant a new trial.

Judgment reversed, cause remanded and venire de novo awcM’ded.


text:
    Charles Nimmo v. R. P. Jackman et al.

      Action for Damages for Removing Structure from Race-way — Evidence —Judicial Notice — Authority of Agents of Corporation — Possession as Evidence.

    1. In an action to recover damages for removing a certain structure from a race-way which crosses plaintiff's lot, it is held: That the evidence is ample to show that the Elgin Hydraulic Company was the owner of the race-way and had the right to remove obstructions therefrom; that the act incorporating said company being a public act, the courts are bound to take judicial notice of its incorporation; that the plaintiff admitted the incorporation of said company by making it a party defendant; that the evidence shows that the directors of the company, a portion of the defendants, acted in pursuance of the request and order of the company; that no former resolution of the board of directors was necessary to authorize such work; and that the evidence that the structure removed was an obstruction sufficiently supports the finding of the court below.
    2. Possession itself, as to either personal or real property, as against one who can show no title, is evidence of ownership.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kane County ; the Hon. Charles Kellum, Judge, presiding.
    Mr. Frank Crosby, for appellant.
    Mr. R. N. Botsford, for appellees.
   Lacey, J.

This was an action of trespass qua/re clausum freqit by appellant against appellees and the Elgin Hydraulic Company in breaking and entering appellant’s close; cutting, pulling down, damaging and removing certain posts, beams and timbers belonging to the appellant, forming support and rest for certain building of appellant of the vahie of $200, etc., ad damnum, $1,000.

Appellees and the Elgin Hydraulic Company pleaded, 1st,-Hot guilty; 2d, The appellees plead justification as officers, agents and servants of the Elgin Hydraulic Company which was in use, enjoyment and possession of a race-way conveying water from a dam across Fox Eiver for power for machinery of the company’s members in mills on said race-way which passed over and upon the locus vn quo, which use, etc., was paramount to any right of appellant secured by conveyance or grant, but reserved therein to the said company; avers that the posts, etc., obstructed and interfered with the free use and enjoyment of the said water and race-way by said company, and that appellees pulled down and removed so much of them as was necessary, as they had a lawful right to do, doing no more damage than was necessary.

The third plea was the same and averred in lien of owner, ship the Statute of Limitations of twentyyears possession and enjoyment of the race-way, etc.

On the hearing the suit was dismissed as to the Elgin Hydraulic Company hy appellant. A jury was waived and the cause tried by the court which found in favor of appellees and gave judgment against appellant for costs, who brings the case to this court by appeal.

It is denied by appellant that the Elgin Hydraulic Company-had any right in the premises; also that there is any sufficient-evidence in the record to show that appellees wore the officers, of the company, or that they were directed by the company to do the work of removing appellant’s structure from the race-way.

Appellant further claims that there was no proof of the corporate existence of such company. It is also c’aimed that the evidence failed to establish the fact that the structure erected in the race-way was of such a nature as to “ obstruct and prevent the free and uninterrupted use of said race-way so that the company did not and could not enjoy the same as it had a right to.”

It appears that the appellant was the owner of the lot through which the race-way in question ran, and the structure which he built was erected by him, and consisted of a timber foundation over the race-way covered with plank and for showing agricultural implements, and was removed by appellees. The structure rested on upright posts which were placed on sills in the bottom of the race and fastened together by braces running up and down the stream but not across.

As to the rights of the Elgin Hydraulic Company in and to the race-way, it appears that the appellant owned and possessed the lot in question through which the race ran, by virtue of a deed dated February 1,1875, from the Fox River Manufacturing Company, grantors, to him, which contained this reservation, after the granting clause in the deed, to-wit: “ Excepting and reserving the right of passage for water in the race across. the said premises of not less than forty feet on the. clear without obstruction, and the right to go or enter upon said race at any time to make all necessary repairs. The said second party (appellant) shall have the right to erect abutments on which to erect a building in such a maimer as not to obstruct the flow of water.” The Elgin Hydraulic Company it appears, took possession of this race in 1865 or 1866, and was in possession and control of it at the time of the alleged trespass.

We think that the evidence is ample to show that the Elgin Hydraulic Company was the owner of this race-way or right which was reserved in the appellant’s deed. Appellant certainly was not the owner, and the proof shows that the Hydraulic Company was in possession, and had for many years been in actual control and enjoyment of the privilege reserved in the deed. Possession itself as to either personal or real property as against one who can show no title, is evidence of ownership. Possession by the Elgin Hydraulic Company of this race was at least prima facie evidence of ownership, so far at least as was granted by its charter and there was no rebutting evidence. Hpon this point the court was fully justified in finding that the Elgin Hydraulic Company was the rightful possessor and had a right to remove obstructions from the race-way. The act of the Legislature which incorporated the Elgin Hydraulic Company is declared by the act itself to be a public act, hence all courts must take judicial notice of it. See Vol. 2, Session Laws 1867, page 88.

By that act it appears that the corporation was created for the special purpose of keeping the race-way in repair, has exclusive charge of it for such purpose, was given the power to raise money therefor and was given the right to sue and be sued. Elgin Hydraulic Company v. The City of Elgin, 74 Ill. 433. The proof showed that the company was organized) had its officers chosen and was exercising the functions and powers granted to it by the Legislature and had been for many years. Aside from this, the appellant admitted the corporate existence of the company by bringing this suit against it.

By the third section of the charter three directors are "provided for who are to manage the affairs of the company. It appears from the evidence that the three directors, a portion of appellees, Jackman, Richards and Kizer, were present and ordered the work done, so that there is abundant evidence that appellees were acting in pursuance of the request and order of the company.

Eo formal resolution of the board of directors authorizing such work is needed. Upon the objection made by the appellant that the evidence was not sufficient to sustain the finding of the court on the question of the structure removed, having been an obstruction to the free use of the race-way, we can only say that the evidence on this point was conflicting, there being abundant evidence to support the finding. And we see no just ground to disturb the finding of the court on that ground.

Perceiving no error in the record the judgment of the court below is affirmed.

Judgment' affirmed.


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    John Davidson and Richard Reardon, Impl’d, etc., v. Thomas T. Sprague.

      Trespass — Action for Damagesfor Flooding Plaintiff’s Latid, — Evidence —Review of — Practice—Trial by Court — Effect of Finding.

    1. When a jury is waived and the cause is tried by the court, the finding is entitled to a like consideration as-the verdict of a jury found under like circumstances.
    2. In an action of trespass to recover damages for flooding plaintiff’s land by means of a defective tile drain, it is held: That the appellants are not shown by the evidence to have been privy to the act of extending a certain drain made by them, said extension which caused the injury complained of having been made by the other defendant; and that the appellants had a right to assume that the other defendant would carry out his offer to take care of the water from their drain in a proper manner and are not liable for his failure so to do.

      [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Haley & O’Donnell, for appellants.
    Lord had a right to drain his farm by ditches, increasing the flow of the water, and thereby redeem it and render it fit for agricultural purposes. His land lay high above the river bottom. This ravine Was lower than the rest, of the land. He had a right to drain into it. Peck v. Herrington, 109 Ill. 611.
    The Commissioners would have the same right to improve the highway that a private owner would have to improve his own land. Nevins v. City of Peoria, 41 Ill. 502 ; Palmer v. O’Donnell, 15 Ill. App. 324.
    In actions ex delicto the evidence must apply to all the defendants. Evidence affecting one alone is not competent, and any element of damages for which one alone is responsible should not enter into the judgment. Smith v. Wunderlich, 70 Ill. 426.
    The fact that the injury complained of is the remote result of the act of appellants or that it would not have occurred but for their act, is not enough, if some other cause intervened which is the proximate cause of the injury. Wood, etc., Association v. Dubuque, 30 Iowa, 176.
    When the Commissioners with Lord’s permission terminated this drain at the hedge fence, and left the water to flow thence south on Lord’s land to the creek, can they be held to have intended that as a proximate result of their act Lord would direct this water and drain it across forty acres of land upon which crops grew, to the ravine? We challenge an inspection of the record for one word of evidence connecting them with the construction of this latter drain. ■ The acts done by the Commissioners were not trespasses. They were lawful, and even in cases of trespass the rule contended for uniformly applies. Cox v. Burbridge, 13 C. B. 430.
    There must be an immediate and natural relation between the act complained of and the injury, without the intervention

      of other independent cases, or the damages will he too remote. Rucker v. Athens Mfg. Co., 54 Ga. 84.
    Messrs. E. C. Hagar, Flanders & Shutts and A. O. Marshall, for appellee.
    The evidence, as a whole, discloses that the defendant changed the natural outlet of his pond or lake from a westerly to a northeasterly course by a cut of eleven feet and thereby changed its natural outlet, precipitating the water upon appellee’s land, which could not have happened but for the act of the defendants in excavating this ditch.
    The defendants in this case are jointly and severally liable for all damages resulting from the construction of this ditch. Tearney v. Smith, 86 Ill. 391.
   Lacey, J.

The appellee sued appellants in an action of trespass on the case, charging as the grounds of his action that appellants wrongfully caused to be dug a certain ditch or tile drain near his land in so careless and improper a manner that large quantities of surface water flowed from the ditch down to and upon the lands of the appellee, rendering them less fit for use and occupation than theretofore by reason whereof he was damaged. All the defendants were served with summons, and the appellants pleaded not guilty, and the other defendant, Lord, having left the State, made no defense, and default was entered against him. A jury was waived and f the cause was tried by the court and appellants found guilty, and the court assessed appellee’s damages at §50, for which I judgment was duly rendered.

The appellants claim as ground of reversal that, firstly, the appellee's land was the servient estate to that sought to be drained by appellants, and that they drained their land as they lawfully might do, into an open ravine, which carried the water upon the land of appellee, and cite Peck v. Herrington, 109 Ill. 611, 619; Nevins v. Peoria, 41 Ill. 502, and Palmer v. O’Donnell, 15 Ill. App. 324, in support of their position.

Secondly, appellants maintain that whatever damage may have been done to the appellee by the flowage of water upon liis land, was not caused by them directly, but was caused by the. wrongful acts of their co-defendant, Lord, in which acts they did not participate directly or indirectly. That the acts done by them were only the remote cause of the drainage, and that they are in no wise legally responsible to appellee for his injuries, if he received any.

These are the points upon which we are called to pass in this case.

The facts in the case are very little disputed and seem to-be clear, and as the case was tried by the court, and no proposition of law was asked to be held by the court, the rightfulness or wrongfulness of the finding of the court must be passed upon by us as a question of the weight of evidence.

But in passing upon the question of fact it will be necessary' also to keep in mind the law governing in a case like this, so that we may be able to see the bearing the evidence may have, at the same time giving the finding of the court below the same consideration that the verdict of the jury would be entitled to under like circumstances.

As to the first point raised, as there is in fact no distinctive law question raised, we can not say that the weight of the evidence would so far preponderate in appellants’ favor as that the verdict should be set aside. We can not say that it is manifest the water from the pond drained would have come through the ridge cut by the drain in question in a state of nature as seems to be contended by appellants.

But as we will hereafter show, that may be an immaterial question and we will not pursue it farther.

The situation of the premises are about as follows, as near as we can gather it from the evidence. The course of the Des Plaines River at the point in question is nearly north and south. West of the river extend the river bottoms to the n bluffs; on these bottoms is what is known as the appellee’s pasture and stone quarry, on which the damage is said to have been done by the increased flow of water caused by appellants’ ditches. The bottom is bordered, on the west by the bluff, some thirty feet high, and along the edge of this bluff runs the Joliet and Chicago wagon road. On the west side of this road, fronting east'and overlooking the river bottom, are Lord’s house and barns, the barns and cow-yard lying, south of the house. A ravine begins in Lord’s field back of his house, runs south, turns Lire southwest corner of his barn-yard, and then runs easterly across the wagon road under a high stone culvert and empties into the river bottoms and on the land of appellee. West of this road and barn-yard lies a forty-acre piece of tilled land, bordered on the west by a hedge fence in which there is a gap. This gap in the hedge fence was the terminus of the tile drain cut by the order of appellants. The gap spoken of is southwest from Iiord’s barn-yard and ravine nearly forty rods.

The Joliet and Chicago road follows the bluff, though not in a direct line, and cuts section twenty-seven so that at Lord’s house the road is about forty rods from the hedge fence, which fence is on the east line of the southwest quarter of section twenty-seven. It is on the half-section line. Northwest from this gap in the fence and on the northwest quarter of section twenty-seven was a large pond, beginning near the south line of the northwest quarter of section twenty-seven and extending north and turning west and covering the highway between sections twenty-seven and twenty-eight. Another and different highway from the first is mentioned; south of the south end of this pond and about the line between the southwest quarter and the northwest quarter is a sharp, narrow ridge of land several feet higher than the pond. This pond covered five or six acres and had rendered the west road impassable for many years. The defendant.owned the wresthalf of section twenty-seven, on which the pond and ridge were situate, and also the forty acres east of the hedge fence extending to his house on the Joliet and Chicago road. The appellants, John Davidson, Richard Reardan and Robert Goudy,were the Highway Commissioners of the town. In 1881 the above named Commissioners of Highways of Du Page Township desiring to drain the said west road were told by Lord if they would lay a tile southwesterly from the pond to this narrow ridge to the gap in the hedge fence above mentioned, he would take care of the water at that point. In pursuance of' the understanding the Commissioners laid said tile from the pond through this ridge to the gap in the fence, a distance of some 200 rods, at a cost of $200.

The tile emptied at the gap in the hedge fence into a trough placed there under the end of the tile. The water then ran there for some time, draining the pond as the evidence shows, and the overflow of the trough ran south along the hedge fence to a school house some distance away and into a depression that carried it into the Lilly Cache River and thence into the Du Page River, and the water did not run onto the appellee’s land at all.

Afterward the defendant Lord cut a ditch and laid a tile drain connecting with this tile at said gap in the hedge fence and carried it from that point east anda little north across the forty-acre tract mentioned and emptied the water into said ravine at the barn yard, where it was carried down the ravine across the Joliet and Chicago road and fell down the bluff on to the river bottom and ran upon appellee’s land, and for the damages occasioned by this overflow this suit is brought.

Had it not been for the tile drain laid by Lord without any privity or encouragement on the part of appellants, this drainage, as clearly appears from the evidence, as we think, would not have occurred.

When the tile drain had been completed no damage had been done and nothing done by means of which any damage could accrue to appellee; up to that point no cause of action could accrue to appellee. Unless appellants were in some way privy to the act of extending the drain no fault could in any sense be attributed to them.

The direct cause of the damage was the extension of the drain by Lord. The fact that Lord told appellants that he would take care of the water at the hedge,fence could not be construed into proof that Lord agreed to take it in the course he did. It would rather be supposed that the latter would take it down the hedge fence where it naturally ran and where it would do no damage to any one, than that he would take care of it in such a manner as to injure the appellee. The appellants neither aided, encouraged, nor advised Lord to dig the ditch as he did. They did not know that he contemplated it. That the water ran off south from the point of the gap in the hedge fence and did not ran upon appellee’s land appears to be abundantly established by the testimony of appellant Davidson, Peter Ward, Kirkham, S. J. Williams and Charles Found.

The appellee claims in his brief that in consequence of the agreement, that Lord would take care of the water at the hedge fence they were equally liable with Lord. That it was their duty to see that Lord carried out the agreement so as not to injure appellee. We think this is not a legitimate deduction from the facts proven.

It made no difference to appellants where Lord took the water. After their tile was .laid to the hedge fence the road was perfectly drained and they had no need for the extension of the tile drain. It was not at their request or even for their benefit that it was extended. It was wholly for Lord’s benefit. And the fact that the digging of the ditch by appellant gave Lord an opportunity to do mischief could in no legal sense make their acts the proximate cause of the injury. Lord’s act was the cause, not theirs. We find no evidence in the record to show that the water from the pond at the west road could have reached appellee’s land without the Lord tile drain. When the witnesses for appellee speak of the water from the pond running onto his land they all appear to have in mind the fact of the existence of the Lord drain as well as the other.

The evidence fails to connect appellant with acts that caused the damage to appellee’s land, and for this reason the judgment of the court below is reversed and tlie'canse remanded.

Reversed and remanded.


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    Ezra H. Stewart et al. v. Frank Fellows et al.

      Equitable Mortgage — Evidence—Decree Sustained.

    Upon appeal from a decree in equity, declaring a lien in the nature of an equitable mortgage on a lot in favor of certain executors, it is Held: That Vti3 evidence though conflicting supports the decree, the evidence of one of the appellants being untrustworthy because contradicted by statements made by him under oath in certain collateral proceedings.
    [Opinion filed December 11, 1886.]
    Appeal from the. Circuit Court of Will County.
    Messrs. Haley & O’Donnell, for appellants.
    Messrs. Olin & Phelps, for appellees.
   Lacey, J.

On October 12, 1870, the appellant, Ezra H. Stewart, entered into a contract of purchase at vendue with one David Richards, as vendor, for a deed of conveyance for S. -§• lot 8 in Richards’ Subdivision of blocks 13 and 14 of Canal Trustees’ Subdivision of the W. Sec. No. 15, in Wil] County, for 8500, payable in four years after date with interest at ten percent, per annum, payable annually, in which con- ' tract prompt payment was made an essential thereof, the said • Stewart on the same day executing his promissory note therefor, due in four years from date. Thereupon Stewart took possession of the real estate and built a bou. e on it. On February 7,1873, the said Stewart assigned his duplicate contract of purchase to one George M. Leonard, eighteen or twenty months before the deed would be due thereon, which assignment was without any consideration, the said Leonard then holding the same in trust for Stewart.

On October 13,1874, some eighteen months thereafter, said Richards and wife, for the express consideration of 8550, executed to said Leonard a deed of conveyance of the said real estate and delivered the said deed together with the said 8500 note given by said Stewart to said Richards for the purchase money.

It further appears that one E. 0. Fellows advanced the 8550 to Leonard for the purpose of paying Richards for the real estate, unless the theory of appellants be true that Stewart himself furnished the money. It .further appears that Leonard died before Fellow'S and devised to him this real estate or his interest in it, or in case his lien be paid off, the money in lieu thereof. Fellows aftoiward died and both the executors of said Leonard and Fellows are parties complainant and appellees herein. On June % 1875, said Leonard made and placed in escrow a deed for the said real estate in which deed the appellant Laura D. Stewart, wife of said Ezra D. Stewart, appeared as grantee, and placed it in the hands of one Wagener, book-keeper of the First Rational Bank of Joliet, to be delivered to the grantee named therein in case of his death. On September 6, 1875, said Leonard in his last illness had his will w'ritten and executed it, in and by which he devised the said real estate to his father-in-law, Fellows, but provided, in case Stewart would make the payment due on it within one year from the probate of the will, then Fellows should convey said real estate to Stewart. Leonard died September 7, 1875.

On April 8,1876, the appellant Laura D. Stewart replevied • the said deed from the possession of said bank where it was held in escrow and immediately had the same recorded.

Row, this suit is brought by bill in equity by appellees against appellants seeking to foreclose the equitable lien of Fellows’ executors on the said real estate for the amount of the note and interest, claiming that the former hold an equitable mortgage on the said real estate for the amount of the note and interest. The court below found in favor of appellees, and decreed a lien on the real estate in question to the amount of 81,048, the amount of the $500 Richards note and interest, from which decree this appeal is taken. There are two other notes held by said Fellows in his lifetime now claimed by his executors to be a lien on said real estate, but we think not seriously, one for $400, given by said Ezra H. Stewart to him December 30,1871, and one for $80, given by same party June 30, 1872. Stewart contends that he furnished the money to Leonard with which the latter paid Richards for the real estate in question, and that Leonard was a mere accommodation holder of the title for the benefit of Stewart, and he points to the directions accompanying the deposit of the deed with the bank in escrow as strong, if not conclusive, proof that his claim is correct, and that nothing remained due on the purchase ' price of the land. On the proper determination of this contention between the parties the decision in this case hinges.

. If Stewart furnished this money to Leonard to pay off the Richards claim, that would forever end the matter; but on the other hand, if Leonard furnished the money, either his own or Fellows’, and paid it to Richards and took the note and received the deed from the latter to himself, he would stand in the same relation to appellants as Richards did originally. It would not make any difference about the assignment of the contract by Stewart to him before that time. Whether he held the contract in trust or not he would still hold the real estate in trust for Stewart after it was deeded to him by Richards; but charged with the payment of the Richards ■ note which he had taken up and the title could not be forced from him by any one until this lien was discharged. And if, under such circumstances, Laura D. got possession of the deed by replevin, the lien could not be divested by such means.

We have given the evidence careful consideration and have cometo the conclusion that the court below committed no error in finding that the appellant did not furnish the money to Leonard to pay Richards, and that he had not paid the amount since.

We do not deem it necessary to examine the evidence in detail as it would serve no good purpose. But in general we may say the Richards note, taken up by Leonard and still in possession of appellants, is of itself prima facie evidence that it was still due and unpaid. This is supported also by the admissions of Stewart to various persons and other surrounding circumstances. The main evidence relied on by appellants to rebut this evidence is the testimony of Stewart himself. According to his testimony, if it is entitled to credit, he furnished the money to Leonard to pay Richards for the land and Leonard furnished no money of his own.

But the weight of his evidence is very much impaired if not "entirely destroyed by his various contradictory statements previously made by him under oath.

Leonard having died on September 7, 1875, appellant Ezra H. Stewart filed his cross-bill in the Circuit Court of "Will County in chancery under oath, in which he avers that Leonard and not himself furnished the money to pay the Richards claim and that by agreement with Leonard the latter was to and did receive such deed for the real estate in question to hold as security for the money advanced. On May 31, 1878, lie also filed his schedule of liabilities in bankruptcy under oath, in which he states that his indebtedness to the estates of Leonard and Fellows in the sum of §1,400 for money loaned. This could not have been,true unless the note in question wras due as is claimed by appellees.

The suggestion that the appellant Ezra II. Stewart -took these several oaths inadvertently we do not consider a satisfactory explanation. We can give his testimony but little if any credit, not enough to overcome that produced by appellees even when coupled with the other circumstances favoring appellants’ side of the case.

Finding no error in the record the decree of the court below is affirmed.

Decree affirmed.


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    City of Joliet v. Helena Gerber.
    ' Municipal Corporations — Defective Sidewalks — Personal Injuries— Liability — Notice of Defects.

    Where the evidence, in an action against a municipal corporation for injuries resulting from a defective sidewalk, fails to show that the municipal authorities had notice of the defect complained of,, or such circumstances as that they in the exercise of a reasonable diligence • should have known of such defect, the defendant will not be liable to the person injured.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.
    Mr. Fred. Bennitt, for appellant.
    Mr. J. L. O’Donnell, for appellee;
    Where a sidewalk is in such a condition merely by reason of age or decay that it is likely to be dangerous, and a plank therein causes an accident, no knowledge on the part of the city of the looseness of that particular plank need, be shown. The city will be chargeable with knowledge of its general condition. Weisenburg v. City of Appleton, 26 Wis. 56; Sherwood v. Dist. Columbia, 3 Mackey, 276.
   Welch, J.

This was an action on the case brought by appellee against appellant to recover for injuries received by reason of a defective sidewalk. The declaration contains two counts averring that the appellant permitted and suffered a certain sidewalk on the west side of Chicago Street to become dangerous and that the appellee, in the exercise of ordinary care, while walking along and over said sidewalk fell through and upon said sidewalk and her right leg and right arm were injured. The second count avers that by reason of the injuries sustained she was hindered and prevented from prosecuting her ordinary avocations and suffered great anguish of body and mind to her damage, etc. Plea of not guilty. Trial, verdict for appellee assessing her damages at 8500. Motion for new trial, motion overruled, judgment on the verdict, from which this appeal is taken. Various errors are assigned. In the view we take of this case we shall only notice the sixth error assigned, that the verdict is contrary to the law and the evidence.

On the 25th day of June, 1884, as the appellee was returning home in front of Mr. Adler’s lot at the - northeast corner of Chicago and DeKalb Streets, she fell on the sidewalk. As she states, she “went down with, the plank; just the right limb went down ; the plank did not break.” Her husband was walking a little in front of her; she and her husband and two children had passed over that walk going down town some two hours before. Her husband states that when they passed over it going down town “it was all right at that time.” When he passed over the walk on his return home the plank, he states^ must have been on the stringers ; he saw nothing wrong with it; would have seen it certainly if it had been off the stringers; the plank was not broken; don’t know how it got off the stringers and got down in the hole then. Mr. Martin, a witness for appellee, stated on his examination in chief that he knew the sidewalk; that some of the planks were loose prior to the appellee being hurt — he thinks it was in April or May that they were loose. On cross-examination he says: “I do not mean to say that in the month of May, 1884, that there were any loose planks there, did not notice them in particular.”

Fanning, a witness for appellee, says : “Know the vacant lot on DeKalb and Chicago Streets. The sidewalk was repaired about a couple of years ago. I noticed it every time I walked down town, once or twice a day. There were places on Chicago Street worse, and some a good deal better. Some of the planks were not well secured. In 1884 there had been some planks loose. Could not say how long before June as to their being loose.” On cross-examination he says: “I noticed only one loose; it was five or six planks from DeKalb Street; remembered that in June, 1884, there was first one plank five or six planks from the south end that was loose at one end.” Byan, witness for appellant, says: “Iknow the sidewalk in front of the Adler lot; consider it in fair condition; passed over it from two to thirty times a week; before and up to the time Mrs. Gerber was hurt I passed over the walk four times a day; Idid not see any loose planks in the walk.”

Adler, witness for appellant, says: “My father owns the lot a.t the corner; always kept an eye on the walk and if there was need repaired the sidewalk; prior to the time Mrs. Gerber was hurt the condition was pretty good; I did not discover any loose planks; walked over it and saw it frequently.” Collins, Furlong, Murphy and Murray state that they had passed'over the sidewalk frequently and never saw anything the matter with it. This was all the evidence as to the condition of the walk. In our view the evidence fails to show that the city authorities had notice that the plank was loose, or that the condition of the sidewalk was such that in the exercise of a reasonable diligence it should have known that it was loose. Most of the witnesses had passed over the sidewalk daily and had not discovered any loose planks. The appellee and her husband had passed over it about two hours before the injury. He states he saw nothing wrong with it. Fanning says he saw one plank loose at one end in J une, whether it was before or after the injury is not stated. Ho notice of any defect in the sidewalk was ever given to those of appellant’s agents who had charge of streets and sidewalks. As held in City of Chicago v. Margaret Murphy, 84 Ill. 224, “ When the evidence fails to show that the city authorities had notice that the plank was loose, or such circumstances as that they in the exercise of a reasonable diligence should have known it was loose, the city will not be liable to the person injured.”

We hold that no recovery for the appellee could be sustained under the law and facts in this case.

Judgment reversed.


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    Laban Agney v. John Strohecker.

      Landlord and Tenant — Irregular Distress Warrant — Acquiescence-Instructions — Costs—Order to Return Property.

    In a proceeding claimed to be by distress, it is held: That the distress warrant which authorized the bailiff to take the landlord’s grain rent was an irregular and illegal way of compelling the tenant to make a division according to the lease as claimed by the landlord; that the proceedings under the warrant with the acquiescence of the defendant amount to full satisfaction of the plaintiff’s claims; that the verdict for the defendant was proper; that said verdict should not be disturbed on account of any irregularities contained in the instructions; that the plaintiff was not entitled to costs; and that the court erred in ordering a re turn _ of the property taken under the pretended distress proceedings.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Stephenson County; the Hon. William Brown, Judge, presiding.
    Messrs. U. D. Meacham and Leonard Stockope, for appellant.
    Messrs. James I. Neff and J. H. Stearns, for appellee.
   Lacey, J.

This was a suit claimed to be a distress proceeding in favor of appellant against appellee, the verdict of the jury being in favor of appellee.

On the 28th day of May, 1884, appellant became the purchaser by warranty deed from the owner, Samuel Diffinbaugh, of a certain quarter section of land in said Stephenson County. At the time of said purchase the appellee was in possession of it and had been for a year at least under a certain contract for rent from Diffinbangh, his lease continuing for the year 1884. The contract was verbal, and as testified to by John Diffinbaugh, agent for Samuel Diffinbaugh, was that appellee was to pay for the last year he lived on the place one-third of all the small grain and corn; no agreement as to the delivery of the grain exóept such corn as was wanted for feed was to be delivered when he, witness, wanted it. Appellee was for that year to have all the hay and apples and Diffinbaugh never had any potatoes. To the same effect is the testimony of Isaiah Best, who sold the farm to appellant, and as Best swears, appellant was to take the land and accept appellee as his tenant the same as Diffinbaugh had rented it to appellee.

Appellant however claimed and introduced evidence tending to show that appellee was to pay also one-half of the hay and apples and one-third of the potatoes. So far as it is necessary to sustain the verdict of the jury in this case, we are satisfied that the jury were justified in finding with appe1lee on his contention as to the terms of his renting from Diffinbaugh.

. On the 9th of August, 1884, appellee threshed a portion of the small grain, oats and barley. It appears to be fairly established that by mutual consent between appellee and appellant the latter received and took away his full one-third portion of the grain threshed at that time, and this would amount to an attornznent on the part of appellee to appellant of his allegiance as tenant to the latter. On the 20th of October, 1884, the appellee threshed a portion of the remainder of the sznall grain, when appellant’s two boys went to receive the balance of the rent, but being refused admittance or the privilege of taking appellant’s share they went back home and informed their father of the circumstances, arid then went to town and got a distress warrant and gave it to Frederick Baker, the Deputy Sheriff, who went with the appellant and his two boys to the premises in question where the threshing was going on. Appellee said he did not want the Agneys to come on the place. Appellant said he had come for his share of the grain. Appellee said they had nothing t-hez'e and inquired if Baker had a warrant and was told he had not. Then appellee said, “Drive them off the place.” Appellee’s boys then attacked the Agneys when Baker commanded the peace, and asked for the distress warrant which was handed him, and Baker read it to appellee, when the latter left the premises to go to Freeport. Before the distress was levied one load of oats and another load, part of oats and part of wheat, had been delivered to Jerome Fye at Elroy in appellee’s name, but was afterward transferred to the Sheriff, Stewart. This was done by the order of Baber and appellee. There were sixty-five bushels of oats and twenty-seven bushels of wheat. The balance of the one-third of the grain was hauled in the name of Wm. Stewart, the Sheriff, in November. The first grain hauled to Elroy had been set apart by appellee as the one-third for rent, as far as the threshing had then proceeded, but intended for delivery to Diffinbaugh, the original landlord.

Appellant, at the time the distress warrant was read, told appellee that if he would let hinj have his share that he would pay all the costs.

The distress warrant issued in this case was peculiar. It was not a distress warrant under the statute authorizing the bailiff to distrain for the value of the portion of the grain coming to appellant by virtue of the lease, but was in the nature of an order to Baker, the bailiff, to force a division of the grain and to take and deliver to appellant his share claimed to be due him under the lease. The warrant authorized the bailiff to distrain the goods and chattels of appellee wherever found in the said county — that is to say, one-third of the wheat, oats, corn and potatoes, and one-half of the apples and hay grown on the premises in question. This was all there was of the warrant. The bailiff, then simply acting as intermediator, proceeded in the matter in exact accordance with the authority, and by arrangement with appellee selected out the one-third of the grain, and delivered it over to appellant. He, as he says, got his share of the wheat and oats and sold it. The forty acres of corn was divided by the bailiff and appellee and a man hired by the bailiff, but paid by appellee, to gather the corn and haul it to appellant who received his one-third of it and fed it up to his stock. One-half the hay was divided and set apart for appellant and fenced by appellee for the appellant at the bailiff’s request, and a portion taken by the appellant, and the remainder might have been received if' he had seen proper to take it. The potatoes were dug and one-third left on the ground for appellant as ordered by the bailiff which could have been taken if appellee had so desired, although they were allowed to rot. Appellant took a portion of the apples, all, as far as the evidence shows, that he desired. This was in no sense a proceeding under the statute to enforce the payment of the rent in money to the extent of the value of the grain rent reserved, but was an irregular and illegal way of compelling the appellee to make a division according to the terms of the lease as appellant claimed it — in other words to compel a specific performance. The appellee, although he was not compelled by law to submit to this manner of enforcing the payment of the rent, submitted and acquiesced in the demands of the appellant and his agents, the Sheriff and Deputy Sheriff and delivered over to him all of the one-third of the small grain and corn which was received and enjoyed by him. We hold that this amounts to a full satisfaction of his claim so far as that portion of the rent goes; so far as the one-third of the potatoes and one-half the apples and hay are concerned, we think the jury were justified in finding that they were received also, and further if not received, that appellee did not owe that portion of the rent claimed in accordance with the lease with Diffinbaugh. It therefore appears that the claim of the appellant had become fully satisfied before the suit was called up for trial, and before the warrant had been charged so as to make it a proceeding in distress under the statute.

The jury no doubt found in rendering their verdict that the appellee owed no rent to appellant as far at least as the grain was concerned, and that it had been fully satisfied by being delivered to appellant and by his receiving it as such one-third and making use of it. That he had received full satisfaction of his claim and there was nothing remaining upon which he could rightfully claim a recovery. Having received full sat. isfaction for his claim for rent in the manner provided in the lease, he could not recover. Having treated the lease as still in force during all the irregular proceedings and claiming the right to receive the rent in kind, and so receiving it and making use of it, he can not now be allowed to recover for the value of it. The court allowed an amendment to be made in the warrant so as to allow a recovery for the value of the grain reserved as rent, on the terms that appellant pay all the costs of that term up to that time. His cause of action having been extinguished as we have shown, there was nothing left for the jury to do except to find a verdict for the appellee, which they did. The appellant tabes exceptions to appellee’s 1st, 2d, 3d, 4th, 5th, 6th and 7th given instructions. We have examined these instructions and think that while some of them may be erroneous on some questions of law and raise perhaps immaterial issues, yet the evidence is quite clear and without serious contradiction on the vital questions in the case, and we do not feel authorized to disturb the very just verdict in this ease on such grounds. There was only the matter of costs involved and the appellant having by his acts in receiving the rent on the basis of the lease extinguished his cause of action, could not recover costs. Skinner v. Jones, 4 Scam. 193; Baber v. Pratt, 15 Ill. 568.

The court, however, committed one error, and that was in ordering the .appellant to return the property distrained or taken under the pretended distress proceedings.

The distress proceedings were irregular in not conforming to the statute. The rent having been paid in full in kind by the consent of the appellee, he is not entitled to a return. There is nothing more to settle between these parties, and the appellant should not be compelled to return the property.

The order for the return of the property to appellee is therefore reversed and the judgment in all other respects affirmed.

The order of return of the court below being reversed, the costs of this court should be assessed against appellee, which is so done.

Judgment affirmed except order of return of property to appellee, which is reversed.


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    Peter V. Lowe v. Henry Ravens.

      Practice — Conflict of Evidence — Exclusive Right of Jury.

    1. Where the evidence is conflicting the jury have the exclusive right to pass upon and determine its weight and to find the facts.
    2. This court will not interfere with the verdict of the jury when it is not clearly against the weight of the evidence and it does not appear to have been prompted by passion, prejudice, or misapprehension of the evidence.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Richardson Bros., for appellant.
    Mr. C. A. Lake, for appellee.
   Welch, J.

This was an action of assumpsit brought by the appellee against the appellant to recover for extras and a balance claimed to be due him upon a contract with the appellant, whereby the appellee agreed to furnish the materials and erect for the appellant a house and barn, for which appellant was to pay him the sum of $3,000. Appellant filed plea of general issue, set-off, and two special pleas setting up the contract and alleging a breach thereof by the appellee as to the quality of materials furnished and character of work done, and denying that appellee furnished any extra material or work. The trial of the issue resulted in a verdict and judgment for the appellee for the sum of $J00.

We have examined the evidence, and find it very conflicting. The jury under the law have the exclusive right to pass upon, and determine the weight of evidence and to find the facts. We must therefore leave the question of credibility and the worth of the evidence where the law has placed it with the jury. We can not say that the verdict in this case is clearly against the weight of evidence, or that the verdict was prompted by passion, prejudice, or a misapprehension of the evidence. While we might have been better satisfied with the verdict the other way, yet under the law, that is not sufficient to justify us in disturbing it. Morgan v. Ryerson, 20 Ill. 343 ; Martin v. Ehrenfels, 24 Ill. 187 ; Pulliam v. Ogle, 27 Ill. 189 ; Bishop v. Busse, 69 Ill. 403; Baysinger v. The People, 115 Ill. 419. We find no error in the law as given by the court.

Judgment affirmed.


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    German Fire Insurance Company v. J. J. Carrow et al.

      Fire Insurance — ■Location of Buildings — Change in Firm Insured — Six Months' Limitation — Adjustment as Waiver of Objections — Agency— Ratification — Instructions.
    1. In an action upon a policy of insurance, wherein the defendant claims that the policy is void because the buildings insured were not entirely situated on the plaintiff’s grounds, and because of a change in the firm insured, and that the action is barred by the six months’ limitation in the policy contained, it is held: That these objections are met by an adjustment of the loss made by an independent adjuster whose acts were ratified by the defendant; that certain customary reservations if made in said settlement could not affect the waiver by the defendant of the six months' limitation clause of the policy; that defendant is estopped by the knowledge of its agent of the situation of the buildings and the change in the firm insured; and that certain objections to instructions can not avail the appellant.
    2. The law does not favor clauses of limitations in policies of insurance. They are strictly construed and allowed to be readily waived.
    [Opinion filed December 11, 1886.]

      Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Stevens, Lee & Horton and Kay & Euans, for appellant.
    French was not an agent within any definition of agency contained in the books. McLean was a mere soliciting agent; and the law is well settled that a party who is merely a soliciting agent for insurance can not bind the company by any contracts or agreements that he may make. He has nothing whatever to do with the adjustment of, or settlement for loss. Covenant Mut. Benefit Ass’n v. Conway, 10 Ill. App. 348.
    An agent can only bind a company by acts done in the line in which he is usually acting. Hoffman v. John Hancock Mut. L. Ins. Co., 5 Ins. L. J. 389.
    The limitation clause was certainly a reasonable and proper óne, and parties having insurance are supposed, in law, to know what their policy contains. The law supposes every person knows what provisions and conditions his policy contains. Bishop v. Clay F. & M. Ins. Co., 11 Ins. L. J. 257; Davis v. Mass. Mut. L. Ins. Co., 5 Ins. L. J. 736; Fuller v. Madison Mut. Ins. Co., 4 Ins. L. J. 482.
    The knowledge of an agent that the conditions of a policy have been violated, even though he is authorized to make contracts binding on the company, or even the knowledge of the officers of the company, will not waive the conditions of the policy or estop the company if defending against a breach of them. English v. Franklin F. I. Co., 14 Ins. L. J. 877; Bachelor v. Green I. Co., 12 Ins. L. J. 813.
    Warranties, whether in an application which is made a ivarranty or in the policy itself, must be absolutely true; and the warranty fully kept, whether material to the risk or not. Graham v. F. I. Co., 11 Ins. L. J. 64; Commonwealth M. F. I. Co. v. Huntinger, 10 Ins. L. J. 618.
    Mr. T. B. Harris, for appellees.
    McLean, the agent of the company, having full knowledge of the nature of the title of Carrow, Sewell & Co. to the property and the location of the building, and having himself, from his own knowledge, prepared the application, the policy is not rendered void by reason of the building extending on the railroad ground, even though that fact is not stated in the application or policy, there being no fraudulent misrepresentations. Andes Ins. Co. v. Fish, 71 Ill. 620; Atlantic Ins. Co. v. Wright, 22 Ill. 462, 473; H. & M. Ins. Co. v. Corneck, 24 Ill. 455, 461; F. & M. Ins. Co, v. Chesnut, 50 Ill. 111.
    The renewal having been issued upon application of the new firm, and paid for by'them on the advice of the agent of the company that such was the proper way to do, the agent having full knowledge of the change in the firm, the renewal constitutes a new and valid contract of insurance with the new firm. Peoria F. & M. Ins. Co. v. Harvey, 34 Ill. 46 ; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164.
    jlnd this is so whether the agent communicated the change or not; for a party who deals with an agent through whom he applies for and obtains a policy, has a right to presume that such material facts as are made known to him are made known to his principal, and when policies are issued with full knowledge of such facts the insured is to suffer no prejudice nor are the insurers to gain any advantage by insisting upon conditions which it would be dishonest to enforce. May on Ins. 2d Ed., 754; Atlantic Ins. Co. v. Wright, 22 Ill. 462; Keith v. Globe Ins. Co., 52 Ill. 518; Lycoming Ins. Co. v. Ward, 90 Ill. 514; Andes Ins. Co. v. Fish, 71 Ill. 620.
    The conditions in a policy which may work a forfeiture are to be most strictly construed against the company. May on Ins., Sec. 175; Aurora F. Ins. Co. v. Eddy, 49 Ill. 106; Commercial. Ins. Co. v. Robinson, 64 Ill. 266.
    Courts will not require very stringent evidence in order to defeat its application. May on Ins., See. 488; Ripley v. Astor Ins. Co., 17 How. Pr. 444.
    And waiver is question of fact for jury. May on Ins., 488.
    Mere silence may be evidence of waiver to go to jury. Ibid., and authorities there cited.
    And such a provision is waived by deterring assured from bringing suit by holding out reasonable hopes of adjustment of payment. Peoria M. & F. Ins. Co. v. Whitehall, 25 Ill. 466, 475; F. & M. Ins. Co. v. Chesnut, 50 Ill. 111; Derrick v. Lamar Ins. Co., 74 Ill. 404; Home Ins. Co. v. Meyer, 93 Ill. 271.
    The adjustment having waived and abrogated the limitation condition in the policy, in the absence of fraud, is conclusive upon the company, and constitutes a cause of action upon which suit may be brought at any time within the statutory limitation. Illinois Mut. F. Ins. Co. v. Archdeacon, 82 Ill. 236; Farmers & M. Ins. Co. v. Chesnut, 50 Ill. 111.
   Lacey, J.

'This suit was commenced June 6, 1885, in the Circuit Court by J. J. Carrow, Ezra Sewell, Win. Potridge and John Hill, composing the firm of Carrow, Sewell & Company, upon a policy of insurance issued by appellant dated February 1,1883. The policy covered an ice house owned by appellees. The policy was issued to A. B. Carrow, Sewell, Hill ■and Patterson February 1, 1883. A. B. Carrow sold and conveyed his interest in the property to J. J. Carrow without notice to the company, and on the 6th February, 1884, the company issued renewal receipts to Carrow, Sewell & Company continuing the policy in force for one year.

The property was destroyed by fire May 28, 1884. Wm. II. McLean, a resident of Iroquois County, secured the insurance. Only a small portion of the building extended beyond the lots owned by the insured on railroad grounds.

The agent who secured the insurance knew that a portion of the building extended over on railroad ground, and as the agent of the company, he examined the location and everything about the premises. The agent of the company was aware that the firm had been changed at the time of the renewal. The recovery in the court below was for $927.33, the amount of the adjustment and interest as we suppose.

The appellant makes the following points for reversal:

1st. The policy is void because the buildjngs insured were not entirely situated on appellees’ grounds, while in their application for insurance they represented them to be in fee simple, and because the title had changed by conveyance by A. B. Carrow of his interest to other members of the last named company before the renewal.

2d. The second and main cause urged by appellant for reversal is the bar of six months limitation contained in the policy of insurance, which limitation required the suit to be commenced within six months after the loss, which time had expired after the loss and before the suit was commenced.

As an answer to these objections appellees allege that the appellant, by its authorized agents whose acts were subsequently ratified by it, adjusted the loss with the appellees and fixed it at the .sum of §866.66 by agreement, while the latter claimed the loss sustained to be §1,000, the full amount of the policy. This claim, if made out, would be a good answer to both the above objections raised by appellant. F. M. Ins. Co. v. Archdeacon, 82 Ill. 286; F. & M. Co. v. Chesnut, 50 Ill. 114; Andes Ins. Co. v. Fish, 71 Ill. 620; Peoria F. & M. Ins. Co. v. Harvey, 34 Ill. 46.

Was the evidence sufficient on this point to sustain.the verdict of the jury ? We are inclined to think it was. By reference to the appellant’s answer filed in the garnishee proceedings in favor of Carter et al., introduced in evidence, it will be seen the appellant expressly admits in its sworn answer that this adjustment was made. It says that it owed on this policy §866.66, payable September 17, 1884, if the fire did not originate by any act, design or procurement on the part of the insured or any of them, or in consequence of any fraud or evil practice done or suffered by them, and nothing has been done by or with their privity or consent to vitiate the conditions of the said insurance or any of them so as to render said policy void.

It further admits that the loss was adjusted July 15, 1884. In his testimony Wagoner, the secretary of the appellant, testified that he “received the proof of loss that French, the adjusting agent, had made out on the 17th July, 1884.’’ French did not use the blank sent to Holden. Our company, he says, “accepted it as a measure of damages under the policy, in a measure as an adjustment of the loss.” In Wagoner’s letter of Hay 30, 1885, to J. C. Turner, of Chicago, attorney for appellees, he says, while at the same time denying liability: “After the fire occurred Mr. Win. B. French, who is an independent adjuster of losses, was requested to adjust this loss, and it was through him that we learned of the above irregularities,” etc.

The proof shows by several witnesses that French did adjust this loss and agreed 'to that amount, and that he wrote to the company a letter concerning his action, which it did not produce on the trial. It might from all this evidence be reasonably inferred by the jury that this letter stated fully what he had done in the matter of adjustment, and that it was fully informed of all his acts and doings. Appellant’s admissions show that it did accept the adjustment and settlement. Such notice was received and his acts ratified, and this was as effectual to bind the appellant as if he had been employed to make this adjustment in fhe first instance. But admitting that two or three customary reservations were made in such settlement in regard to points of defense for acts that may have been done by appellees, which they accepted in their proof of loss that French made out and which was sent to appellant, it could make no difference in principle as to the waiver by appellant of the six months limitation clause in the policy. Even in case of unconditional adjustment of the loss where the assured had made concealment of facts, like the one mentioned and accepted, a defense would on such grounds be allowable with or without the reservations, and the reservations would only confirm existing rights.

The fact remains that after the adjustment the contract was a new and different one from that contained in the policy, and founded on a valid consideration, the taking a less sum by the appellees than claimed and allowed by the policy. Under such circumstances only the general Statute of Limitations- could be interposed as a defense. The law does not favor such clauses of limitation in policies of insurance, and they are strictly construed and are allowed to be readily waived. The settlement would be a valid consideration of waiver and the count in the declaration based on such is good. We think the jury was justified in finding from the evidence that there was a complete waiver of the objections to recovery urged by appellant’s counsel.

As to the points made in appellant’s brief that the policy was void because the application for insurance did not correctly state the title of the property in the insured, a portion of the buildings being on railroad ground, and that the renewal was void because there had been a change in the firm, we think they are not wrell taken. Aside from these points being waived by the adjustment it will be seen that McLean, the agent receiving the application, was well aware of the situation of the ice buildings and knew that a portion of them was on railroad ground, and also himself prepared the application for the new firm for renewal well knowing of the change, and advised the renewal as it was made. These being the facts under the rule laid by the Supreme Court in Andes Ins. Co. v. Fish, 71 Ill. 620, Peoria F. & M. Ins. Co. v. Harvey, 34 Ill. 46, and other cases, this technical and inequitable defense falls to the ground. The appellant is estopped from insisting on such defenses, knowing the facts in the case as well as the insured at the times respectively of the application and renewal; it can not be heard to complain if the facts in the application were inaccurately stated nor of fraud in renewal. Under the clearly proven facts on the trial we think the objections urged to appellees’ instructions can not avail. The 4tli instruction being particularly complained of as being wrong in respect to the agency of French in making the adjustment, -we have examined it in connection with the evidence and find that, while it may not be literally correct in putting the question as though the agency of French existed in the first instance, it is in substance correct, as the acts of French in making the adjustment were subsequently ratified by the appellant, which, in law, amounts to the same as though he had been authorized in the first instance. And it could make no difference whether Holden, who delegated his authority to French, had full power to adjust loss in full, if the acts of French were ratified after he made a complete settlement, as the company by Wagoner, its agent, state was the case, which it also admitted in the answer in the garnishee proceedings. The objection is merely technical and without substance. After reviewing the whole case we have arrived at the conclusion that there is no substantial error in the record, and that substan - tial justice has been done.

The judgment is therefore affirmed.

Judgment affirmed.


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    Aurelia Lewis v. Charles E. Barber.

      Confession of Judgment — Sufficiency of Cognovit — Fraud—Possession, Fraudulent as to Creditors — Estoppel—Instructions.
    1. A confession of judgment is sufficient to authorize the clerk to enter up the'judgment if the cognovit contains the words, “ I can not deny.”
    2. An instruction which calls special attention to an isolated fact in the evidence thereby giving it undue prominence, is improper, but such error is not a sufficient cause for reversal where the defeated party was not thereby injured.
    3. In an action of replevin against a Sheriff to recover property held by him under certain executions, it is held : That the possession of the son of the plaintiff was fraudulent as to creditors, and that the plaintiff is estopped from setting up a claim thereto.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Iroquois County; .the Hon. Alfred Sample, Judge, presiding.
    Messrs. Payson & Raymond, for appellant.
    The power to confess a judgment must be clearly given and strictly pursued or the judgment will not be sustained. Keith v. Kellogg, 97 Ill. 147; Frye v. Jones, 78 Ill. 627, 632; Chase v. Dana, 44 Ill. 262; Roundy v. Hunt, 24 Ill. 598; Follansbee v. Scottish Am. Mortgage Co., 5 Ill. App. 18; Batty v. Corswell, 2 Johns. 48.
    To say by a party sued that he can not deny the demand, is in no sense a confession of judgment. Elliott v. Daiber, 42 Ill. 467.
    The simple admission of a party that a particular claim produced against him is correct, is not a confession of judgment. Campbell v. Randolph, 13 Ill. 313.
    The established practice in cases of confessions of judgments in courts of record requires the plaintiff to file a declaration, the warrant of attorney with proof of execution thereof and a plea of confession. Roundy v. Hunt, 24 Ill. 600; Tucker v. Grill, 61 Ill. 236.
    A broad distinction is made in the adjudicated cases as to the force and effect of declarations and cognovits filed in term time and those filed in vacation. Inglehart v. Chicago M. & F. Ins. Co., 35 Ill. 514; Durham v. Brown, 24 Ill. 93.
    When filed in vacation the clerk must look to cognovit alone. His acts are purely ministerial. Without the exercise of judicial powers and functions the clerk could not have said in this case that the plaintiff was entitled to recover anything. Tucker v. Grill, 61 Ill. 236.
    Messrs. Kay & Euans, for appellee.
   Lacey, J.

The appellee was Sheriff and held two executions against Henry F. Lewis, the son of appellant, issued on judgments as follows: One in favor of Joseph Evans against H. F. Lewis and John Ruder dated December 4, 1883, for $244.26; the second, in favor of Joseph Metzenbaugh against H. F. Lewis and Stephen Cissna, for $125.20.

These judgments were confessed by an attorney at law in favor of plaintiff in execution in the Circuit Court in vacation, by virtue of a power of attorney contained in the notes.

The main point urged for reversal in this case is that the cognovit was not in due form and that the language of the confession was not broad enough to authorize the clerk to enter up judgment.

The language of the cognovit being the same in both cases, is as follows: “ The defendants come and defend the wrong and injury when, etc., waive process and say they can not deny the action of the plaintiff, nor hut that they undertook and promised in manner and form as the plaintiff hath complained, nor but that the plaintiff hath sustained damages on occasion of the non-performance of the several promises, etc., to the amount of $-,” the amount in each judgment.

The objection raised to this form of confession is that it does not expressly confess judgment; that for the attorney in his cognovit to say he can not deny the claim set out in the declaration in manner and form therein charged, as was done in the above cognovit, is not a confession. It is not explicit enough. Elliott v. Daiber, 42 Ill. 467, and Campbell v. Randolph, 13 Ill. 313, are cited.as so holding. .Whatever expressions may be contained in those opinions it will be observed that it was not the sufficiency of a cognovit that was in question, and we can not regard them as authority in this kind of a case. We are satisfied that the cognovits in question are sufficiently clear and explicit to authorize the clerk to enter up judgment. The form used is equivalent to an express confession; to say, “ I can not deny ” is one form of confession. This is the form of cognovit in general use for the confession of judgments, and it was recognized and held sufficient in Keith v. Kellogg, 97 Ill. 147. A form similar to the one in question was set out in full in the opinion and held by the court to be good; no one thought of questioning its sufficiency. We regard this as sufficient.

Another point made is that the verdict was manifestly contrary to the evidence, and that the judgment should be re-, versed for that reason. The proof- tended to show that the possession of the property in question by H. F. Lewis was fraudulent as to creditors and that he was the absolute owner of a part or all of the property. As to the colt it is in proof that he purchased it at a public sale. The appellant claims to have purchased the property of her husband, Elisha Lewis, father of Henry F., in September, 1878, by bill of sale, or at least the property of which a portion of this is the increase. The evidence shows that Henry F. had all the property in possession on the large farm which he occupied long before that time, with a one-half undivided interest in all the personal and real property; that his father owned the other half. This half interest his father purchased and sold to appellant for a pre-existing debt, due from him to her. Henry continued to remain in possession of the same as before, claiming to own the property and getting credit on the strength of it. The appellant told her son after her purchase to remain there and “to get his living off the place if he could for himself and family.” “ He has a large family and his health is poor.” It appears that appellant paid but little if any attention to the affairs of the place, but Henry went ahead, traded and dealt with the stock and treated it as his own and procured credit on being the apparent owner of it with no objection or interference by appellant until some of the debts were pressed for payment. Probably not until these security debts were pressed.

There is evidence going to show that at least at one time appellant stated in order to give her son credit, that he was the owner of one-half the personal property. We think there was evidence to justify the jury in finding that property was not absolutely that of Henry; that his possession as to creditors was fraudulent in law and the appellant estopped from setting-up her claim to it as against these judgment creditors.

It appears that Henry’s wife owned an undivided half' of the real estate of the farm on which they lived and kept the stock with other, in suit, and it is complained that the instruction by the court to the jury in behalf of appellee that this, was “a circumstance to be considered as to whether- or not defendant in execution, H. P. Lewis, was the owner of the-property levied ” on, was error. Undoubtedly this was one of the circumstances of the surroundings that might properly be-in evidence and be considered by the jury, but according to many decisions of the Supreme and this court, it is not proper to call the special attention of the jury to an isolated fact in. the evidence and thereby give it undue prominence, but such error will not be sufficient cause for reversal where the court can see that the defeated party was not injured by such instruction. We think error in view of all the- circumstances, is not of sufficient importance to justify reversal for that cause alone.

The judgment is therefore affirmed.

Judgment affirmed: