text:
    John Boyd v. Jacob Lammert.
    1. Chancery—Enjoining removal of fence.—A bill to enjoin appellee from removing Ms part of a division fence. Held, that the demurrer to such bill was properly sustained. If, after building his part of a division fence appellee desires to let Ms land lie open he may do so and thereby avoid any liability to contribute to the erection of Ms neighbor’s fence.
    2. Partition fences.—Under the statute, when adjoining owners both desire to inclose their lands they are required to join in the erection of a partition fence. If, however, either party desires to let Ms adjoining land lie open he may remove Ms part of such fence by giving one year’s notice in writing to the adjoining owner, unless such adjoining owner shall cause the value of said fence to be ascertained by fence viewers and pay or tender the same as provided in sections 3 and M of chapter 54, R. S.

      Appeal from the Circuit Court of Ferry county ; the Hon. George W. Wall, Judge, presiding.
    Opinion filed April 15, 1886.
    Mr. Joiir Boyd and Mr. L. Hammack, for appellant.
    Mr. B. M. Davis, for appellee.
   Wilkin, J.

Appellant and appellee are adjoining land owners having a partition fence dividing their lands. On the 5th day of September, 1885, appellee served a written notice on appellant that at the expiration of twelve months he would remove his portion of such fence and that from and after that date he would keep and maintain a fence built on his own lands if he should see fit so to do. On the 17th of the same month, appellant filed this bill. The bill is quite lengthy, containing many averments wholly foreign to any issue that could possibly ■be made thereon. At the Hovember term, 1885, a demurrer was sustained to it, and that decision is assigned for error and the case brought here by appeal. Stripped of all superfluities the bill is one to enjoin the appellee from removing his part of a division fence. The whole subject of partition fences and the rights of adjoining owners in this State is regulated by statute. If adjoining owners both choose to have their lands inclosed, “they shall each make and maintain a just proportion of the division fence between them.” Sec. 3, Chapter 54, R. S. If either chooses to let his adjoining land lie open, he can not be compelled to build any part of a partition fence, and if, after having built his proper proportion of a division fence he afterward desires to let his land lie open again, he may remove his part of such fence by giving one year’s notice in writing to the adjoining owner, unless such adjoining owner shall cause the value of said fence to be ascertained by fence viewers and pay or tender the same as provided in sections 3 and. 14, chapter 54, supra. If fence viewers had not been appointed, as c’aimed by appellant, there was plenty of time in which he could have procured their appointment, and hence there was no necessity for resorting to a court of equity on that account. We do not agree with counsel for appellee in the position that “a man is not bound to join fences with his neighbor, nor let his neighbor join with him” without qualification. It is clear from the provisions of chapter 54, supi'a, that when adjoining owners both desire to inclose their lands, they are required to join in the erection oí a partition fence. In this respect the law is wiser than spiteful and quarrelsome neighbors are sometimes disposed to be, who would manifest their ill will by building an entire line of fence themselves, in order that they may put their neighbor to a like necessary expense, thus having two fences built against or so close to each other as to answer the purpose of but one. If an adjoining owner desires to ornament his premises with such a fence, he may have that right, but he can not in that way avoid contributing his proportionate part to the erection and maintenance of a partition fence. If, however, either party desires to let his adjoining land lie open, he may unquestionably do so, and thereby avoid any liability to contribute to the erection of his neighbor’s fence. He may only desire to let so much of his land lie open as he wishes to use for a road or other proper purpose, and this he may do-and not be liable for any part of the expense of erecting a fence on the line between his lands and that of a neighbor. The most that can be claimed from the allegations of this bill is that the appellee contemplates building a fence on his own land, not intending to let any portion of it lie open. In other words, that he purposes continuing his land in an inclosure but intends to refuse to join fences with appellant. If he should attempt to carry out such a purpose the remedy will be ample and complete by the very terms of the statute. The attempt to sustain the bill upon the ground that it is a bill to enjoin a threatened nuisance or to prevent irreparable injury is futile.

The judgment of the court in sustaining the demurrer was clearly rigljt and is affirmed. Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 93—2207.
    William B. White v. Thomas Mackin.
    A bill in chancery to enforce a mechanic’s lien upon a certain building. Complainant claimed that there was due him $1,166.67. On the hearing, upon pleadings and proofs, the court found due complainant $672.24 (which was the amount certified to be due by the architect). The work was done under a written contract which incorporated certain plans, specifications and drawings, was signed by both parties, and by it the architect was selected and it was agreed that the performance of the contract on the part of complainant should be to the full and complete satisfaction of said architect, and defendant’s undertaking to pay for the work, etc., was upon the condition that said superintendent should certify in writing that complainant was entitled thereto. The question in dispute was in regard to certain tinning. The architect claimed that it was expressed and included in the specifications. Complainant thought it was not and refused to do it, and defendant employed another mechanic to do it, paying him a reasonable price therefor. The architect deducted the amount paid for the tinning and gave his certificate for the remainder. The court is unable to say that the architect misconstrued the contract, and the decree is affirmed.
    Judge below, George Gaedrer.
    Attorneys, for appellant, Messrs. Gary, Cody & Gary
    ; for appellee, Mr. ¡Robert Hervey.
    Opinion filed Jan. 6, 1886.
   Opinion Per Curiam.


text:
    No. 96—2210.
    The Union National Bank v. James M. Flower et al.
    This was indebitatus assumpsit, brought in the court below by appellees against the bank, appellant, to recover for services as attorneys, performed by the former, for and at the request of the latter. There was a trial of issues joined resulting in a verdict and judgment in favor of tlie plaintiffs below, for $812.25, and defendant brings the record here by appeal. The case shows that the defendant, being in the banking business in the city of Chicago, the firm of Eddy, Harvey & Co. became its customer; that the latter failed, owing the defendant about $23,000; that after such failure, the defendant, through 'its president, employed the plaintiffs, who were practicing lawyers in said city, to undertake the collection of said indebtedness; that plaintiffs entered upon the performance of that undertaking, bringing one suit in the Federal and another in the State court against the members of the firm of Eddy, Harvey & Co., and performed considerable legal services in connection therewith, and the evidence shows that while such proceedings were pending an offer of compromise, at ninety cents on the dollar, of said indebtedness, was made on behalf of Eddy, Harvey & Co., through their attorneys, to plaintiffs, but that the defendant had declined to accept it. The evidence tended to show that such offer was the result of what the plaintiffs had done toward the discovery of a member of the firm of Eddy, Harvey & Co., who was individually of sufficient financial ability to quite insure the collection of the entire indebtedness in question. The court is of opinion that the evidence sustains the verdict.
    Judge below, Elliott Anthony.
    Attorneys, for appellant, Messrs. Frank J. Smith & Hblmer, and Mr. W. J. Herrick ;
    for appellee, Mr. Frederic üllmann.
    Opinion filed Jan. 6, 1886.
   Opinion Per Curiam.


text:
    No. 91—2205.
    George Lehman et al. v. John Hasserman.
    This action was by Hasserman, as payee, against appellants, as makers, upon two promissory notes bearing date Maich 27; 1884. The pleas were general issue, a plea of partial failure of consideration, setting up that the notes were given for part payment of an engine, boiler and machinery of a brick yard at Park Bidge, and the right to dig clay from a certain clay bank for making brick; that plaintiff warranted said engine, boiler and machinery to be in a sound and good condition; that said clay bank was distant from the yard only two miles, and that 16,000 bricks per day could be made, and that it would require only four teams to haul the clay, averring breach and damage. Plaintiff replied traversing all material averments of the plea. The court found the issues for the plaintiff, and gave judgment for the full amount of the notes and interest, from which defendants took an appeal to this court. The court finds no error of law to which exception was taken, and that there was no such preponderance of evidence in favor of the defendants as would justify the court in interfering with the finding of the court below.
    Judge below, Elliott Anthony.
    Attorneys, for appellants, Mr. Charles J. Beattie ;
    for appellee, Messrs. Dent, Black & Cratty Bros.
    Opinion filed Jan. 6, 1886.
   Opinion Per Curiam.


text:
    No. 62—2176.
    John D. Caton v. Andrew Bloom.
    This was an action on the case brought by appellee against appellant, to recover for the loss of a hand, through the alleged negligence of appellant in failing to provide and keep in repair suitable machinery for operating a stone-crushing drop hammer, which appellee was tending while in appellant’s service as a laborer. There was a judgment and verdict for the plaintiff in the court below, for §4,000, and the defendants brought the case here by appeal. The evidence tended to show that appellee's hand was caught and crushed under the falling hammer while he was operating the same in the exercise of ordinary care, and that the injury was the result of a defect in the machinery which worked the hammer. Whether appellant used reasonable care and diligence in providing and maintaining machinery that was safe, was a question of fact falling peculiarly within the province of the jury to determine; and this was the principal subject of controversy at the trial. The evidence was conflicting. The jury who saw and heard the witnesses must be presumed to be better able to judge as to the weight of the evidence than this court can be, and their finding should not be disturbed unless it is against the clear preponderance of the evidence. Judgment affirmed.
    Judge below, ¡Rollin S.i Williamson.
    Attorneys, for appellant, Mr. Chas.E. Towne
    for appellee, Mr. William Hoynes and Mr. John Gibbons.
    Opinion filed Jan. 6, 1886.
   Opinion Per Curiam.


text:
    No. 53—2167.
    Frank F. Cole v. John T. Cosgrove.
    This was trover, by Cosgrove against Cole, to recover damages for the wrongful conversion of a stock of boots and shoes which had been pledged by the former to the latter. The plaintiff", upon the verdict ®f the jury, had judgment for §7,842.55, and defendant brings error to this court. The evidence shows, beyond controversy, the commission by Cole while such pledgee of fraudulent acts respecting said goods, so inconsistent with his duties as pledgee thereof as to terminate the bailment and render him liable in this action for the loss of the goods. In such a case errors in the instructions not affecting the measure of damages become immaterial, if any such exist and as the pleadings stand the court finds none, as respects damages, of so serious a character as not to be remedied here. Upon full condderation of all the evidence, the court is of opinion that the damages shown amounted to the sum of five thousand and five hundred dollars, and that all given by the jury in excess of that amount are excessive. Judgment mod ified.
    Judge below, Rollin S. Williamson.
    Attorneys, for plaintiff in error, Mr. Robert Her-vet and Messrs Barnum, Rubens & Ames ;
    for defendant in error, Messrs. Sleeper & Whiton and Mr. L. M. Shreve.
    Opinion filed Jan. 6, 1886.
   Opinion Per Curiam.


text:
    No. 81—2195.
    The Pennsylvania Co. v. Chandler S. Redfield et al.
    This was an action by appellant against appellees as sureties upon the bond of one Broomhall, for the faithful performance of the duties of the latter as agent of appellant at Englewood, in this county. The breach assigned was the failure of said Broomhall to pay over to the proper agent of the appellant the sum of three thousand dollars, which had come into the hands of said Broomhall as agent of appellant, at Englewood, aforesaid; which breach the defendants traversed by plea. The case was tried by the court without a jury, and the court- found the issues for plaintiff -; the debt,, the penalty mentioned in the bond, and damages in the sum of fifteen hundred and nineteen dollars; upon which finding judgment in proper form was given. The plaintiff brings the case here by appeal, and assigns for error, that the amount of damages found should have been larger. The court is of opinion that appellant’s counsel have failed to point out of the complicated mass of evidence in the record, the evidence which demonstrates the error relied upon. The mere conclusion of witnesses upon a question which the court, sitting in the place of a jury, was just as competent to determine as theysvitnesses, will not suffice to establish that clear weight and preponderance required by our practice to justify the interference of an appellate court, with the findings of the court below, when sitting for the determination of facts, or the verdict of a jury.
    Judge below, Joseph E. Gary.
    Attorneys, for appellant, Messrs. Willard & Driggs ;
    for appellee, Messrs. C. H. & C. B. Wood, and Mr. A. H. Yeeder.
    Opinion filed Jan. 6, 1886.
   Opinion by McAllister, J.


text:
    No. 67—2181.
    Nelson Morris v. Lawrence Litchfield et al.
    This case was before the court on a former appeal, and is reported in 14 Bradwell, 83. The judgment was then reversed and the cause remanded for a new trial. Upon the second trial new and further testimony was introduced on behalf of the plaintiffs, which, if believed by the jury, was sufficient to Support the verdict in favor of the plaintiffs, which was found. The question of the credibility of witnesses is so peculiarly a matter within the province of a jury to determine, that appellate courts will not, except in very rare cases, interfere with the verdict. The judgment of the court below is affirmed.
    Judge below, Elliott Anthony.
    Attorneys, for appellees, Messrs. Frank J. Smith & Helmer ;
    for appellant,Mr. John 0. Richberg.
    Opinion filed Jan. 6, 1886.
   Opinion by McAllister, J.


text:
    No. 80—2194.
    The Pennsylvania Co. v. Henry Marshall.
    This was an action on the case brought by appellee against appellant to recover damages for the death of his son, caused by being run over by a train of appellant’s railroad cars in the vicinity of Grove and 18th streets, in Chicago, through the alleged careless and negligent management of the train by defendant’s servants. There was a jury trial resulting in a verdict and judgment for the plaintiff for §2,999. The evidence tended to show that the train consisted of twenty freight cars and an engine, and was something over 690 feet long - that the engine, instead of being at the head of the train, was in the rear pushing the train, and there was no flag or other signal at the approaching end of the train to warn passers-by of danger. The court is of opinion that the company was guilty of culpable negligence in backing a long train of cars through a busy part of the city, where people andtéams were constantly passing and repassing, without using special precautions, either by having a person stationed on the train or on the ground or in some other practicable way, to give warning of the approach of the train. Ho material error is perceived in the instructions as modified and given by the court, and the court is of opinion that the evidence supports the finding of the jury.
    Judge below, Elliott Anthony.
    Attorneys, for appellant, Messrs. Willard & Dbiggs;
    for appellee, Mr. Moeton Culveb and Mr. Simon P. Douthabt.
    Opinion filed Jan. 6, 1886.
   Opinion Per Curiam.


text:
    No. 68—2182.
    Daniel H. Tolman v. Charles W. Requa.
    This was a suit in assumpsit, brought by Daniel H. Tolman against Charles W. Requa, upon a contract of warranty. A trial was had before the court below without a jury, resulting in a finding and judgment for the defendant. Ho questions of law were raised at the trial, and the only ground upon which we are now asked to reverse the judgment is, that it is unsupported by the evidence. The guaranty in question is one indorsed upon a promissory note, executed by one Allen, payable to the order of the defendant. In addition to a plea of non-assumpsit, the defendant filed two special pleas, somewhat inartificially drawn, and apparently intended as pleas of fraud and circumvention in obtaining the execution of the note and guaranty. While it is very clear that the facts pleaded do not amount to fraud and circumvention in obtaining the execution of said instruments, the court is of opinion that they are sufficient to show fraud in the consideration "as well as want of consideration, and that sufficient facts are stated to make such defenses available against an assignee of the note. The evidence is conflicting, and in some respects confused and uncertain, but the court is of opinion it tended to support the defenses made by the pleas, and warranted the court below in finding the issues for the defendant.
    Judge below, Sidney Smith.
    Attorneys, for appellant, Mr. John C. Riohbebg ;
    for appellee, Messrs. Teaming & Thompson.
    Opinion filed Jan. 6, 1886.
   Opinion Per Curiam.


text:
    No. 73—2187.
    C. & N. W. Ry. Co. v. Mary A. Snyder, Adm’x, etc.
    This was an action on the case, brought by Mary A. Snyder, administratrix of the estate of John H. Snyder, deceased, against the Chicago & Horthwestern Railway Company, and the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for the death of the plaintiff’s intestate, caused, as is alleged, by the negligence of a servant of the defendants, who, at the time, was in their joint employment. It appears that the tracks of these two railway com. panies intersect and cross each other at Western avenue, in the city of Chicago, and that for the purpose of regulating, controlling and signaling trains about to pass over the crossing, and to determine the order in which they should cross, said companies had erected and were using a signal station near the crossing, said station being furnished with a semaphore to be used by day, and with lights of different colors to be displayed at night, as signals to approaching trains. At the time of the injury to the plaintiff’s intestate, of which he died, one Henry E. Torrence had charge of said signal station. He seems to have been employed by the Chicago & Northwestern Railway Company at a fixed salary, which was paid him by the two companies, and his duties required him to signal and direct the movements of all the trains approaching the crossing on either railway. The deceased at the time was a conductor in the service of the Chicago and Northwestern Railway Company, and was in charge of and running a train belonging to that company. As he was approaching the crossing in the night time, through the negligence of Torrence in the use of the prescribed signals, as is alleged, a collision took place between the engine of his train and a train of the Chicago, Milwaukee and St. Paul Railway Company, by which he was killed. A trial was had in the court below before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for §5,000. The court is of opinion that the evidence sustains the verdict.
    Judge below, Joseph E. Gary.
    Attorneys, for appellant, Mr. B. C. Cook and Mr. W. B. Keep ;
    for appellee, Mr. Mason B. Loomis and Mr. Lewis Munson.
    Opinion filed Jan. 6, 1886.
   Oqiinion Per Curiam.


text:
    No. 2239.
    Daniel H. Horne v. John Walton.
    This was an action on the ease for fraud and deceit, brought by appellee against appellant in the Circuit Court of Cook county, resulting in a verdict and judgment for appellee for §2,900. It appears that appellee had §2,000 deposited in the Illinois Trust and Savings Bank, and the evidence tended to show that he was induced by the representations of appellant to Avithdraw the money from the bank, and allow appellant to
      loan it upon the security of a note and mortgage purporting to be executed by one Carpenter, of Cincinnati, for whom appellant claimed to be agent, which security was worthless, and known to be so by appellant when obtaining the money from appellee, whereby the money was wholly lost. The question as to the alleged fraud was peculiarly one for the consideration of the jury, and the court is of opinion that the jury were justified in finding that the charge of fraud was proven as alleged and that the verdict is supported by the evidence. Daniel JEL Horne v. Sarah A. Walton, Ho. 126—•• 2240, is affirmed for the same reason as the above.
    Judge below, Kirk Hawes.
    Attorney for appellant, Mr. L. H. Condee.
    Opinion filed Jan. 20, 1886.
   Opinion Per Curiam.


text:
    No. 108—2222.
    William H. Burt v. C. J. Warrington.
    This was a suit growing out of certain transactions on the Board of Trade, in which appellant, plaintiff below, sues to recover damages for an alleged violation of duty on the part of the defendant in having sold, without notice to the plaintiff, certain grain purchased on the Board of Trade by the defendant as agent for the plaintiff, whereby the latter sustained a loss. There was a jury trial, resulting in a verdict for the defendant, and the plaintiff appealed to this court. It was contended on the part of the defendant, first, that the trades were rightly closed because of the failure of plaintiff to put up margins; and secondly, that even if not rightly closed, appellant’s payment without objection of the balance claimed against him for margins, with knowledge of all the circumstances, was a waiver of his right of action. Between the two theories of the parties the jury adopted the defendant’s, and in the conflicting state of the evidence this court can not say that their finding is not supported by the evidence.
    Judge below, Joseph E. Gars-.
    Attorneys, for appellant, Mr. Faelin Q. Bale ;
    for appellee, Messrs. Fat & Griggs.
    Opinion filed Jan. 27, 1886.
   Opinion Per Curiam.


text:
    No. 130—2244.
    John M. Hopkins et al. v. Thomas Foley et al.
    This was a creditor’s bill brought by John M. Hopkins and others, as judgment creditors of Thomas Foley, to reach certain assets in which, as it is claimed, said Foley has some equitable interests, and to subject_the same to the payment of their judgments. The case was heard on pleadings and proofs, and-tlie bill was properly dismissed for want of equity.
    Judge below, George Gardner.
    Attorneys, for appellant, Mr. E. S. Walker ;
    for appellee, Mr. P. McHugh.
    Opinion filed Jan. 27, 1886.
   Opinion Per Curiam.


text:
    No. 139—2253.
    Ira Brown v. Charles C. Young.
    This was an action to recover back money paid upon a contract for the purchase of real estate, upon the ground that appellant made false and fraudulent representations to appellee, who was the purchaser, that he owned the property and his title was straight as a string, and would furnish an abstract showing it. After appellant had received §30 of appellee, he let appellee have the abstract, which showed that appellant had no legal title to the property which he had agreed to sell. That appellant knew he had no such title, at the time of the representation, is clear beyond doubt. Hpon these facts appellee was entitled to rescind the contract and recover back what he had paid.
    Judge below, John G. Rogers.
    Attorneys, for appellant, Mr. C. Stuart Beattie; for appellee, Mr. Fred. H. Atwood.
    Opinion filed Feb. 17, 1886.
   Opinion Per Curiam.


text:
    No. 133—2247.
    Edward W. Walker v. George W. Brown.
    The evidence was sufficient to support the finding of the court below.
    Judge below, Kirk Hawes.
    Attorneys, for appellant, Messrs. Wilson & Zook;
    for appellee, Mr. Joseph H.. Barker and Mr. F. C. Hale.
    Opinion filed Feb. 17, 1886.
   Opinion Per Curiam.


text:
    No. 144—2258.
    The Curran Mutual Aid and Building Association v. Christopher Murphy.
    This was an action of assumpsit by appellee against appellant to recover by the former, as a stockholder in the appellant corporation, what had been paid in upon thirty shares of stock, upon a withdrawal from the association upon notice given in pursuance of its by-laws. The case was, upon agreement of the parties, tried by the court without a jury, resulting in a finding and judgment for plaintiff in the sum of §535.20, and defendant prosecutes this appeal. The evidence tended to prove all the necessary elements of the cause of action, and perceiving no substantial error, the judgment is affirmed.
    Judge below, Richard Prendergast.
    Attorneys, for appellant, Mr. A. B. Baldwin and Mr. J. B. Ryan ;
   Opinion Per Curiam.

for appellee, Mr. Julius Goldziee.

Opinion filed Feb. 17, 1886.


text:
    No. 141—2255.
    Joseph Schwarzendahl et al. v. George W. Beck.
    Judgment against appellants and in favor of appellee was entered in the court below by confession under a warrant of attorney appended to a promissory note for $390 besides costs. It appears that $50 of that amount was for attorney’s fees provided for in the warrant of attorney, the note being originally for $1,320, which had been reduced by payments, to about $340 as claimed by appellee, and nothing due upon it as claimed by appellants. The latter moved to vacate the judgment and be allowed to plead, and filed affidavits which clearly showed a good defense to the note. The court below overruled the motion and from that order this appeal was taken. The court is of opinion after reading all the affidavits that the motion should have been granted, and the order denying it is reversed and the cause remanded. with directions to the court below to vacate said judgment and allow the defendants therein to plead.
    Judge below, Rollin S. Williamson.
    Attorneys, for appellants, Mr. Tiieo dobe Schintz¡;
    for appellee, Mr John S. Cook.
    Opinion filed Feb. 23, 1886.
   Opinion Per Curiam.


text:
    No. 143—2257.
    John Roper et al. v. The Globe Pickle Company.
    This was assumpsit brought by John Roper and others against the Globe Pickle Company to recover damages for the breach of an alleged contract entered into by the defendant with the plaintiffs, for the sale and delivery to the plaintiffs of a certain number of barrels of pickles at certain specified prices. The defendant pleaded non-assumpsit and set-off, the indebtedness sought to be set off being for goods sold and delivered by the defendant to the plaintiff. The trial was had before the court without a jury, and the issues found for the defendants, and a judgment rendered in their favor on their plea of set-off for $87.65 and costs. The only questions presented are mere questions of fact upon which the evidence is conflicting. The main controversy in the case is as to whether the contract set up in the declaration was ever actually entered into by the parties, and on this question two witnesses, the agents of the respective parties, testified ; and their testimony is directly in conflict. The court finds no cireumstances in evidence which seem to afford any material corroboration to either of these witnesses, and the court belowi who saw the witnesses and heard them testify, having for reasons satisfactory to himself, seen fit to believe the defendants5 witness in preference to the plaintiffs5, it is impossible for this court to say that he was not warranted in so doing.
    Judge below, Richard Prendergast.
    Attorneys, for appellants, Messrs. McClellan & Cummins ;
    for appellee, Mr. Alva A. Knight.
    Opinion filed Feb. 23, 1886.
   Opinion by Bailey, P. J.


text:
    No. 24—2293.
    George W. Cothran et al. v. George H. Harlow.
    This was an action of assumpsit brought by George H. Harlow against George W. Cothran and Jennie W. Cothran, the declaration consisting offiy of the common money counts. At the trial, which was had before the court, a jury being waived, the plaintiff dismissed his suit as to said Jennie W. Cothran. Ho propositions were submitted to the court to be held as the law in the decision of the case, but the court, after hearing the evidence, found the issues for the plaintiff, and assessed his damages against defendant, George W. Cothran, at $7,000, and for that sum and costs the plaintiff had judgment. Affirmed.
    Judge below, Elliott Anthony.
    Attorneys, for plaintiff in error, Mr. Jno. Jewett ;
    for defendant in error, Mr. R. A. Childs,
    Opinion filed March 31, 1886.
   Opinion Per Curiam.


text:
    No. 6—2166.
    Barnum Blake v. David T. Miller.
    The only error assigned is, that the court proceeded to the trial of the cause and gave judgment without a replication to the special plea. It does not appear from the certificate of the clerk, that the transcript is a perfect and complete copy of the record. There appears indorsed upon the writ of error, a statement by the clerk that, as his return to said writ, he attached thereto a certified copy of the record and proceedings in the cause, but on examining the clerk’s certificate to the document attached, the court finds that it entirely fails to c.-rtify that the papers to which it refers, constitute the whole or any part of the record in this cause. The court is not informed and can not judicially know from such certificate that there may not have been a proper replication on file at the date of the trial, and that such replication may not be now among the files. In the absence of anything in the record conclusively showing the contrary, the recital in the j udgmont order that the issues were then joined must prevail, and it must accordingly be assumed as a fact affirmatively shown by the record, that a replication had been filed.
    Judge below, Elliott Anthony.
    Attorneys, for plaintiff in error, Hr. Bo beet Hervey ;
    for de'endant in error, Hr James Feake.
    Opinion filed March 31, 1886.
   Opinion by Bailey, P. J.


text:
    No. 12—2271.
    Cornelia J. Chadwick et al. v. Alvina C. McKee.
    An action of trespass for breaking and entering the plaintiff’s dwelling house, and also for taking and carrying away divers goods and chattels belonging to the plaintiff. At the trial before the court and a jury, defendants Cornelia J. Chadwick and Loren Chadwick only were convicted, and the plaintiff’s damages were assessed against them at $5,000. For this sum and costs the plaintiff had judgment. The court is of the opinion that the damages are clearly and largely excessive. Host of the damages awarded are manifestly punitive, as it would he difficult, upon any reasonable view of the evidence, to estimate the plaintiff’s actual or compensatory damages at more than one tenth of the sum given .by the jury, and there is very little, if any basis in the evidence for the imposition of punitive damages, at least as against Cornelia J. Chadwick. While in cases of this character, the measure of damage is, to a certain extent, within the discretion of the jury, yet it is the duty of the court to see that the verdict is not oppressive, and that it is the clear and deliberate judgment of the jury, uninfluenced by any improper motives: Lockwood v. Onion, 56 Ill. 512.
    Judge below, Joseph E. Gary.
    Attorneys, for plaintiffs in error, Hessrs. HcOoy, Pope & HoCoy ;
    for defendant in error, Hr. W. S. Harbert and Hr. W. P. Black.
    Opinion filed March 31, 1886.
   Opinion Per Curiam.


text:
    No. 156—2270.
    The Louisville, New Albany & Chicago Ry. Co. v. Robert M. Cherrie et al.
    This is an appeal from a judgment for $748.43, obtained in the court below by appellees, Cherrie & Co., against appellant, for commissions claimed to have been earned in the purchase of railroad materials. There is no pretense that appellant, the defendant below, ever employed Cherrie & Co., the plaintiffs, to make any such purchases ; but the latter sought to establish their right of recovery, by showing that February 12, 1880, the Chicago & Indianapolis Air Line Bail way Company, through Henry Crawford as treasurer, entered into a special contract with them in writing,' by which that company agreed to pay plaintiff the commissions in question, and that subsequently, and before this suit, said last named railway pompany became consolidated with the appellant company, by reason whereof the latter company became, liable to pay said commissions to plaintiffs. The special contract was not declared upon, and there was no evidence under a quantum meruit. It was therefore necessary to support the finding of the court below (the case being tried without a jury), that evidence should have been adduced tending to show, either that said railway company had previously authorized said Crawford to make said special contract on its behalf, or that, with knowledge of all material facts, it had subsequently ratified his act in doing so. As the case is totally barren of evidence upon either a pre. vio us or subsisting authority, or subsequent ratification, the judgment is reversed.
    J%dge below, Elliott Anthony.
    Attorneys, for appellant, Mr. Geo. W. Easley and Mr. W. H. Low;
    for appellees, Mr. Frederic Ullmann.
    Opinion filed March 31, 1886.
   Opinion by McAllister, J.


text:
    No. 19—2287.
    Sarah C. Lieb v. Abraham Lichtenstein.
    An action on two promissory notes executed in the State of Indiana by a husband and wife. The plaintiff originally brought suit against the husband and wife, but dismissed as to the husband. The plaintiff recovered a verdict and judgment against the wife for the amount appearing to be due on said notes. The principal controversy was upon the question whether the stock of goods 'for which the notes were given was purchased by the wife as her separate personal estate, and to be employed by her in carrying on her separate trade and business, or- whether the sale was really and in fact to her husband. On this question the evidence was conflicting. The jury have given credence to the plaintiff’s witnesses, and the court can not say that their verdict is not sustained by a preponderance of the evidence. Judgment affirmed.
    Judge below, Sidney Smith.
    Attorneys, for plaintiff in error, Messrs. Wilson & Zook;
    for defendant in error, Mr. D. M. Ktbtoit and Mr. F. M. Chablton.
   Opinion by Bailey P. J.

Opinion filed March 31, 1886.


text:
    17—2285.
    A claim filed by Edward G. Bowzer against the estate of Charles H. Crowell, deceased, in the Probate Court of Cook county.
    The claim having been disallowed by the probate court, an appeal was taken by Bowzer to the circuit court, where a trial was had before the court and a jury, resulting in a verdict and judgment in favor of the administratrix. The claim as originally filed was for a balance of $1,186.06, due from Crowell to Bowzer on an account stated. By an amendment filed in the probate court, the claim was stated to be for divers sums of money advanced to said Crowell at different dates from August 14, 1878, to November 29, 1878, aggregating $1,426.25, on which there remained due the sum of $1,186.06. The evidence tended to show, and the court thinks satisfactorily showed, that at the time of the transaction out of which the controversy arose, Crowell and Bowzer were copartners doing business under the firm name of C. H. Crowell & Co., and that the moneys advanced by Bowzer were »his contribution to the capital of the firm. It was claimed, however, and it was upon this theory that the case was tried, that the copartnership had been dissolved and an accounting had between said copartners, and that upon such accounting a balance was struck showing an indebtedness from Crowell to Bowzer of $1,230.06, which sum, less a credit of $44, still remained due and unpaid. The evidence tending to show an accounting and final settlement between the parties was, to say the least, very weak and unsatisfactory, and the court will not interfere with the finding of the jury that there was no such accounting. In the absence of an accounting in relation to the affairs and business of the partnership, showing a final balance in his favor, Bowzer was not entitled to a verdict for any specific amount. It is claimed, however, that so long as the evidence showed that the partnership was unsettled the court should have treated the plaintiff’s claim as praying for an adjustment and settlement of the partnership accounts, in the manner provided by the statute in relation to actions of account, and directed the jury to find the plaintiff entitled to such accounting, and that steps should have thereafter been taken under the statute to obtain an accounting by means of auditors. Whether it would have been competent for the court in any event to adopt the procedure hero suggested, or evento submit the matter of an accounting to the jury, is not decided, since the cause was not tried on the part of the plaintiff on any such theory. Judgment affirmed.
    Judge below, John G. Bogers.
    Attorneys, for plaintiff in error, Mr. 0. C. Bonnet and Mr. L. M. Paine ;
    for defendant in error, Messrs. Swett, Gross-cup & Swett.
    Opinion filed April 7, 1886.
   Opinion by Bailey P. J.


text:
    No. 16—2284.
    Gustavus M. Graham, survivor, etc., v. Jonathan B. Graham.
    Defendant in error sued Gustavus Mills Graham as surviving partner of the firm of Graham Brothers, and on September 26, 1885, a plea of the geneial issue was filed for said defendant by John and Ernest McGaffey, attorneys; on September 28, 1885, Eric Winters and G. W. Smith, attorneys, filed for same defendant a ¡ilea accompanied by an affidavit of merits sworn to by one Stillman Mann who says in affidavit that he is agent of defendant. October 10, 1885, an order was entered reciting that “on agreement of the parties to this suit now made in open court, this cause is submitted to the court for trial without a jury” and trial finding for plaintiff and judgment. October 13, 1885, motion by Eric Winters and Geo. W. Smith as attorneys for defendant, to set aside judgment. Affidavit of Winters shows that on September 26, 1885, affiant and Geo. W. Smith were retained “ on behalf of and their appearance for the defendant,” and filed plea on September 28th. Plea by McGaffey, attorneys» being then on file cause was submitted to court, October 10th, by agreement between said McGaffey and A. 0. Story, attorney for plaintiff, without notice to affiant or said Smith, and they never consented to trial of case without a jury and out of regular order. Action brought against surviving partner for alleged indebtedness of firm. Stillman Mann has been duly appointed administrator of deceased partner, and is interested in seeing that said cause is defended. Claims affiant and Smith are entitled to appear and defend in said cause, “ because they were retained by said Stillman Mann, administrator.” Affiant believes defendant has full and complete defense to plaintiff’s demand and “is informed and believes that said plaintiff and defendant are colluding together for the purpose of defrauding the estate of said deceased out of its interest in said partnership estate, and for that purpose have had said judgment entered up.” Motion to set aside judgment was denied and said ruling was assigned for error. The court is of opinion that the ruling óf the court on said motion was con ect. No facts are stated in the affidavit filed in support of the motion, which would authorize the court to disturb the judgment, nor which, would require the court to allow the administrator of the deceased partner to take charge of or participate in the suit by his attorneys. If the suggestions that the surviving partner was colluding with the plaintiff to fraudulently dissipate the deceased partner’s interest in the partnership estate is true, the remedy must be sought in another forum. Judgment affirmed.
    Judge below, Joseph E. Gaby.
    Attorneys, for plaintiff in error, Mr. Geo. N. Smith and Mr. Eric Winters;
    for defendant in error, Mr. Allan C. Story.
    Opinion filed April 7, 1886.
   Opinion by Moran, J.


text:
    No. 28—2297.
    William A. Giles v. John F. Barney et al.
    A proceeding under the Mechanic’s Lien Law where the action was based upon and for work and materials done and furnished under a written contract between the parties. By the fifth clause of the agreement under which the materials.were furnished and the work done, Giles agreed that upon the architect’s acceptance of the work as complete and finished, he would pay to the petitioners the balance in full, “ on the presentation of the architect’s certificate certifying that the contract has been well and truly performed and accepted by him, and that all damages or allowances which should be paid dr made by the parties of the second part have been deducted from the amount of the said final certificate, and also a certificate from the parties of the second part, that all claims and damages for extra work or otherwise, under, or in connection with this contract, have been presented to the architect.” The making by the architect of the one, and by the contractors of the other of said certificates, and the presentation of them respectively to Giles, the owner, by or on behalf of said contractors, was a condition precedent to the right to payment for the final balance under the contract: Packard v. Van Schoick, 58 Ill. 79, and cases there cited; Coey v. Lehman, 79 Ill. 173 ; Downey v. O’Donnell, 86 Ill. 49; Walsh v. Walsh, 11 Bradwell, 199. The petition does not allege, nor the proof show, that the petitioners ever made or presented to Giles any such certificate as is required by said fifth ciause to be made and presented. Neither does the petition allege, or the proof show, the making and presentation of such a certificate by the architect as is required by that clause. The one described in the petition and given in evidence falls substantially short of that required. Nor is there any waiver or excuse alleged or shown in respect to either of said cértificates. The contract being the foundation of the petitioner’s proceeding, and being in all respects lawful and valid, it can be enforced only as the parties have made it. The court was powerless to dispense with the condition precedent to which the court has referred. Decree reversed.
    Judge beffiw, George Gardner.
    Attorneys, for plaintiff in error, Messrs. King & Packard ;
    for defendant in error, Mr. Eugene E. Prussing.
    Opinion filed April 7, 1886.
   Opinion by McAllister, J.


text:
    No. 47—2317.
    Albert Hurzfield et al. v. David Cohen.
    As the court finds no support in the record for any of the points raised on behalf of appellants, the judgment is affirmed.
    Judge below, John G. Rogers.
    Attorneys, for appellants, Messrs. Flower, Remy & Gregory and Mr. Fred. L. Brooks ;
    for appellee, Messrs. Byam, Wein-SOHENK & GrIESBURG.
   Opinion Per Curiam.


text:
    No. 44—2314.
    David W. Kean v. J. Fred Hammerly.
    Case originated in justice’s court, shows a meritorious cause of action in favor of appellee, to which no defense was established-Affirmed.
    Judge below, Kirk Hawes.
    Attorneys, for appellant, Mr. A. A. Exline ;
    for appellee, Messrs. C. & W. L. De Wolf.
    Opinion filed April 28, 1886.
   Opinion Per Curiam.


text:
    No. 40—2310.
    George F. White et al. v. John E. Liston.
    The evidence legitimately tended to support the verdict, and there is no question of law presented by the record. Affirmed.
    Judge below, Joseph E. Gary.
    Attorneys, for appellants, Messrs. Munn & Wheeler;
    for appellee, Mr. Wm. J. Manning and Mr. Percy Y. Castle.
    Opinion filed April 28, 1886.
   Opinion Per Curiam.


text:
    No. 46—2316.
    Crane Brothers’ Manufacturing Company v. Kraft, Gross & Company.
    In this case there were three issues of fact: Whether the appellant made the contract sued on, whether there was a breach and what were the damages. The case was tried by'the court without a jury, and while there was a conflict of evidence on some points, an examination of the record satisfies the court that the findings of the trial court were correct.
    Affirmed.
    Judge below, Joseph E. Gaby.
    Attorneys, for appellant, Mr. B. L. Tatham ;
    for appellee, Mr. W. W. Gurley.
    Opinion filed April 28, 1886.
   Opinion Per Curiam.


text:
    No. 36—2306.
    L. J. Hiltz v. O. M. Wells.
    Judgment by confession was entered in the court below in favor of defendant in error and against plaint iff in error on a judgment note for $273.0 5. A motion was entered to set aside the judgment? and an affidavit in support of the motion was made by plaintiff in error. The court is unable to see from the facts set out in the affidavit that plaintiff in error has any valid defense to the note, and the motion to set aside the judgment was properly overruled.
    Judge below, Bollin S. Williamson.
    Attorneys, for plaintiff in error, Mr. GG. Bellows ;
    for defendant in error, Mr. John B. Parker.
    Opinion filed April 28, 1886.
   Opinion Per Curiam.


text:
    No. 49—2319.
    John D. Caton v. Charles Bent et al.
    An action by appellant, Catón, against the appellees, Bent and five others, to recover damages for an alleged injury to plaintiff’s property. The declaration contains but one count? in a plea of trespass on the case as it is stated ; but in the body of it is stated a cause of action in trespass to certain described real estate, situate upon the dock of the Illinois & Michigan Canal, in the city of Chicago, the plaintiff averring possession, and that defendants unlawfully entered and tore down a fence thereon, also that they dumped divers large quantities of mud taken from the canal upon the same. The same count also sets up that plaintiff was the owner of divers articles and kinds of goods and chattels, among which was a steam engine, which were then upon said premises, which, by the unlawful acts of the defendants in dumping said mud on said premises, became covered or spattered with the same and thereby injured. The case was tried before a jury upon pleas of defendants denying their guilt, and when the plaintiff had introduced his evidence and rested, the court, on motion of defendants’ counsel, excluded all of plaintiff’s evidence from the jury, who returned a verdict for defendants, on which judgment passed and plaintiff appealed to this court, assigning that ruling for error. In order to recover as respects the real estate it was indispensable to plaintiff’s case that he prove possession; and as respects the goods and chattels it was indispensable to prove that plaintiff had some property, general or special, in such giods and chattels, or some of them, at the time of the alleged injury. As plaintiff failed to prove these essential elements of his case the action of the court below was proper.
    Judgment affirmed.
    Judge below, Sidney Smith.
    Attorneys, for appellant, Mr. Chas. E. Towns ;
    for appellees, Messrs. Campbell, Hamilton & Custer, and Messrs. Swift & Campbell.
    Opinion filed April 28, 1886.
   Opinion by McAllister, J.


text:
    No. 32—2302.
    Gertrude M. Jewett v. A. L. Jewett.
    In February, 1881, appellant obtained a decree of divorce from appellee, and by it was awarded the custody of their three sons, and alimony for the support of herself and said three sons fixed at the sutn of seventy-five dollars per month, Both p irties married again, appellant beconrng the wife of aman whom the record shows was of ample means. Soon after his marriage to his present wife appellee filed his petition to ojien the former decree as to the custody of the children. Ajipellant resisted the apjilication but the court opened the decree and heard evidence at considerable length. The court permitted the two elder sons to elect with which jiarent they would remain, and they se’ected their mother. At the time of this hearing the oldest son was upward of seventeen years of age and had been employed as a clerk. The second son was fifteen years old, and the youngest eleven and something over. The court, by its final order in the matter of appellee’s petition, left the custody of the sons with appellant but reduced the alimony to twenty dollars per month, which sum apjiellee was ordered to pay for the sujiport and education of the youngest boy. This order appellant assigns for error, alleging that the order should have been for a larger amount, and should have made provision for the support of the second son-This court can not say that the judgment arrived at by the chancellor ought to be different.
    Affirmed.
   Opinion Per Curiam.

Judge below, Henry M. Shepard.

Attorneys, for appellant, Messrs. Padbook & Aldis;

for appellee, Mr. Alfred Moore and Messrs. Bisbee, Ahrens & Decker.

Opinion filed April 28, 1886.


text:
    No. 43.
    George S. Russell v. Edward G. Harris.
    An action of assumpsit for $420.69, the balance of an account for lumber delivered by appellant’s firm to Frank Stewart, who had contracted to erect two houses for appellee. The claim was that defendant promised, before the delivery, to pay the bill prorata with those of other parties, for material furnished to the contractor and put into these buildings, which he denied. Plaintiff’s clerk, who went to see him on the subject, testified that he understood him in the course of conversation to make the promise stated. Defendant testified that he might have said and probably did say he would do, voluntarily, as well by them as by any others, but expressly and positively refused to be bound as by a promise. These were all the witnesses and this the substance of all the evidence upon the only question of fact that was in dispute. It appeared that defendant did pay. others in full, but only upon Stewart’s orders, and that upon like orders he paid plaintiff’s firm something over $400, and the balance to Stewart before he received notice that anything remained due to them. The question was submitted to the jury upon this evidence, under instructions to which no specific objection is urged, and they found for the defendant.
    Judgment affirmed.
    Judge below, Cyrus Epler.
    Attorneys, for appellant, Messrs. Morrison & Whitlock ;
    for appellee, Mr. Osoar A. De Leuw.
    Opinion filed Dec. 4, 1885.
   Opinion by Pleasants, J.


text:
    No. 49.
    Jacksonville Nat. Bk. v. Edward C. Lax et al.
    This was a suit brought by the bank against defendants E. 0- and Mewark Lax on a note dated April 20,1848, for $1,500, due in six months, purporting to be signed by the defendants and payable to the bank; afterward an attachment in aid was sued out alleging a fraudulent conveyance by Mewark Lax; defendants filed several pleas upon which issue was joined, trial had and verdict rendered, which was set aside and new trial awarded. On Dec. 12, 1884, defendant Mewark Lax filed a plea of non

      est faatvmb sworn to, and upon trial a verdict was found for the defendants, and judgment rendered against plaintiff for costs.. From all the evidence in relation to the genuineness of the signature of ¡Newark Lax upon the note, the court is of opinion the jury were fully justified in finding his signature thereto a forgery, and it follows as a necessary consequence that the whole case fails, and errors in other branches of the case are immaterial.
    Judgment affirmed.
    Judge below, Cyrus Epler.
    Attorneys, for appellant, ¡Messrs. Moeeison & Whitlock;
    for appellee, Messrs. Baenes & Gallon.
    Opinion filed Dec. 4, 1885.
   Opinion by Conger, J.


text:
    No. 65.
    Indiana, Bloomington & Western Ry. Co. v. John W. James et al.
    An action by a shipper against a railroad company for injury to cattle shipped from Olney, Ill., to Green Springs, Ohio, caused as alleged while the cars containing the stock were in the yards at Springfield, Ohio, by a switch engine of appellant which was running at the rate of twenty-five or thirty miles an hour, colliding with the cars and throwing the stock against the cars by which they trampled upon each other and were injured; appellant denied the collision and contended the injury v as due to the restlessness of the stock; no question of law is raised, the contest being upon questions of fact. As the evidence was conflicting, it was the peculiar province of the jury to determine the weight and credit to be given to the testimony of the various witnesses, and their verdict for the shipper is undisturbed.
    Judge below, J. W. Langley.
    Attorneys, for appellant, Messrs. Gere & Beardsley;
    for appellee, Mr. J. M. Weight.
    Opinion filed Dec. 4, 1885.
   Opinion by Conger, J.


text:
    No. 24.
    C. Aultman & Co. v. G. A. Van Duyn & Co.
    A suit to recover the purchase price of certain machinery which it is alleged defendants in error—as the agents of plaintiffs in error—sold to E. DcGoria, and for which they failed to take proper steps to secure the payment from DeGoria whereby the purchase price was wholly lost. The duties of the agents were clearly set forth in a written contract. It was the duty of the jury, under proper instructions to find, first, whether the agents made the sale, and if so, whether they did or did not perform their duty in substantial accordance with their contract, for it alone measured and determined their duties, and whether they exceeded or fell short of ordinary care and caution was not material. As the court below in the instructions as to the agents’ liability made it depend upon whether they used ordinary care, the case is reversed.
    Judge below, J. J. Phillips.
    Attorneys, for appellants, Messrs. Patton & Hamilton,
    For appellees, Messrs. Stuabt, Edwiards & Bbown.
    Opinion filed Dec. 4, 1886.
   Opinion by Conger, J.


text:
    No. 63.
    Isaac C. Lowe v. J. H. Galbraith.
    Hnder rule fourteen of this court, the assignment of errors must be written upon or attached to the record, and the appellant or plaintiff in error shall in all cases assign errors at the time of filing his record in this court, and on failing to do so, the case may he dismissed. Writ of error dismissed for a failure to comply with this rule.
    Judge below, John Keen, Jb.
    Attorneys, for appellant, Mr. II. Tompkins ;
    for ajipellee, Messrs. George & Bunch.
    Opinion filed April 15, 1886.
   Opinion Per Curiam.


text:
    No. 43.
    Phillip Bell v. The People of the State of Illinois.
    The bill of exceptions in this case does not purport to contain all the evidence introduced on the trial of the cause below, nor the instructions given to the jury. Instructions to be a part of the record must be preserved in the bill of exceptions, and because of such defects, the errors assigned can not he considered and the judgment below must be affirmed.
    Judge below, J. R. Williams.
    Attorneys, for appellant, Mr. P. A. Pearce and Messrs. Organ & Organ ;
    for appellee, Mr. John W. How.
    Opinion filed April 15, 1886.
   Opinion by Green, J.


author: Mr. Presiding Justice McBride

text:
    Edgar M. Davis and Arthur J. Davis, Complainants, v. Alton, Jacksonville & Peoria Railway Company et al., Defendants. Edward J. Scott et al., Interveners, Appellants (Robert Curdie et al., Interveners, Appellants), v. W. C. Fordyce et al., Interveners, Appellees.
    1. Receivers—appointment is ancillary remedy. Under the general rule the appointment of receivers is an ancillary remedy in aid of the primary object of litigation between the parties, and such relief must be germane to the principal suit.
    2. Receivebs—where appointment of receiver is sole object. A suit can not be maintained where the appointment of a receiver is the sole primary object and no cause of action or ground for equitable relief otherwise is stated.
    3. JubisdictioN'—~defined. Jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to a suit.
    4. Jurisdiction—defined. Jurisdiction of the particular matter does not mean simple jurisdiction of the particular case then occupying the attention of the court hut jurisdiction of the class of cases to which the particular case belongs.
    5. Receivebs—when mortgagee is entitled to. A mortgagee may go into a court of equity, before the mortgage debt is due and ask for an injunction and receiver to prevent the subject-matter of his mortgage from being impaired or wasted.

      6. Appeals and ebbobs—When decree appointing a receiver is not open to collateral attach. Where a court having jurisdiction of the parties and subject-matter, appoints a receiver upon a showing made by a mortgagee that it is for the best interest of all parties concerned, such a decree is not open to collateral attack, where an intervening petitioner, seeking to enforce a mechanic’s lien, appeals from a later decree directing the issuance of receiver’s certificates.
    7. Mobtgages—allowing railroad mortgagees to borrow money. The power of the courts ought never to be used in enabling railroad mortgagees to protect their securities by borrowing money to complete unfinished roads except under extraordinary circumstances.
    8. Receivers—authority to issue receiver’s certificates. A receiver for a railroad may be authorized to issue receiver’s certificates to pay for supplies, rentals and equipment necessary for the operation of the road, or to make repairs .necessary to keep the road and its structures in a safe and proper condition to serve the public.
    9. Appeals and ebbobs—when decree authorising receiver’s certificates is reversed. A decree authorizing a receiver to issue certificates to the amount of $150,000 to complete the construction of a railroad extending over twenty-two miles, six miles being completed and in operation, will be reversed where there are intervening petitioners having mechanics’ liens to the amount of $80,000 which would have to he postponed until the certificates were paid.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at- the October term, 1912.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed March 10, 1913.
    Kinealy & Kinealy, J. J. Brenholt and C. H. Burton, for appellants Edward J. Scott et al.
    W. J. Chapman, for appellants Robert Curdle et al.
    Fordyce, Holliday & White and D. G. Williamson, for appellees.
    J. V. E. Marsh, for Frank L. Butler, Receiver.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

A decree was rendered herein in vacation authorizing the appointment of a receiver and afterwards a further decree was entered directing the issuance of receiver’s certificates to the amount of $150,000, from the rendition of the latter decree the intervenors prosecute this appeal.

On September 18, 1911, Edgar M. Davis and Arthur J. Davis presented to the Honorable W. E. Hadley, in vacation, their bill of complaint in their own behalf and behalf of all others similarly situated who may hereafter desire to join herein against the Alton, Jacksonville & Peoria Ry. Co., the Alton Banking & Trust Co., trustees, and the unknown holders of the first mortgage bonds of said Railway Company; in which bill it is alleged that the said Railway Company is a corporation organized under the laws of the State of Hlinois for the purpose of building a railroad from Alton to Jerseyville, Illinois; that for the purpose of raising money for the construction of said railroad the said Bailway Company, under the authority of its stockholders and directors, issued its first mortgage five per cent, bonds aggregating six hundred thousand dollars, and to secure the payment of said bonds conveyed by deed of trust all of the property owned or controlled by it to the Alton Banking & Trust Company, trustee, for the purpose of securing said bond issue, and that said deed of trust was duly recorded. That a right of way was procured and a line of railroad from Alton to Godfrey, a distance of about five and a half miles, was actually constructed and the roadbed completed for the entire distance from Godfrey to Jerseyville and that ties and rails had been laid for a distance of about eleven and a half miles from Godfrey and that all overhead construction has been completed from Godfrey to Piasa Creek a distance of about six miles; that the whole of the issue of $600,000 has been sold or pledged to secure loans, proceeds of which have been spent in the construction of said line of railroad. That the said Bailway Company has exhausted its means and credit and is unable to borrow any further sums of money and has no means to complete the said line of railway and is unable to earn any money in excess of the actual cost of operating the line from Alton to Godfrey, and has no means with which to pay such indebtedness or the interest thereon, and that the said railroad in its unfinished and uncompleted condition is rapidly deteriorating; that by reason of the fact that the same is not completed there is constant waste and loss to the defendant Railway Company and complainants on that portion of the road completed, as well as the equipment and materials on hand and available for the completion of said road to Jerseyville; that the records of the defendant Railway Company, including stock books and minute book have been removed from the State of Illinois by one Carey N. Weisiger who claims to be President of said Company but avers that he was never legally elected as such President. That he is not making any effort to complete the said railroad but is preventing others from doing the same and refuses to surrender said books to the Railway Company or to do anything to preserve or protect the property of the said Railway Company. That the indebtedness represented by the notes of the said Railway Company is in excess of $327,000, besides open accounts to the amount of $32,000, or more, and that suit has been instituted against it on account of a note now past due, and other suits are threatened. That the said Railway Company is insolvent, the property is rapidly deteriorating in value and that the creditors and bondholders would sustain great loss on account of such deterioration of said railroad unless steps are immediately taken to preserve the same; that under the present condition its property and interest are being wholly neglected and nothing being done to preserve or conserve the same, That complainants are the owners of 3,444 shares out of the total issue of 5,160 shares of its stock and are the owners of bonds aggregating the par value of more than $200,000 and are individual creditors to the amount of $8,000 and that they, with other stockholders, bondholders and creditors are in danger of losing larg’e amounts of money, and the assets of the Company wasted and rendered worthless and that they will be irreparably injured and damaged unless aid of this court of equity be granted to them. The bill prays for the appointment of a receiver to preserve and conserve the property and assets of the Railway Company, and to immediately take charge thereof, to care for and conduct the business of said Railway Company for the benefit of all parties concerned.

On September 19, 1911, Judge W. E. Hadley, in vacation, after the defendant Railway Company and the Alton Banking & Trust Company, respectively, had entered their appearance and waived the issuance of process, considered said petition and appointed Frank L. Butler, of the city of Alton, receiver of said Railway Company, and fixed his bond at $25,000, which was by him approved and ordered that the defendant Railway Company without delay turn over and place in the hands and possession of said receiver all the property of said Railway Company, including its line of railroad, right of way, railroad tracks, rails, ties, side tracks, moneys and all other property connected with or in any way pertaining to said railroad, and enjoined the said Railway Company from selling, assigning, mortgaging or in any way disposing of or doing anything to affect the value of any of said property, and vesting the said receiver with full power and authority over said property, directing brm to carry on its business and take charge of the income and make contracts; in general do all things necessary and requisite in and about the managing, controlling and operation of said business, subject, however, to the direction of the court.

On November 6, 1911, the intervenors, Edward J. Scott et al. and Robert Curdie et al., presented to the Circuit Court of Madison county a petition asking leave to sue the receiver of the defendant Railway Company, which was denied, but the said parties were granted leave to file herein intervening petitions in the nature of bills to enforce mechanic’s liens.

On November 10,1911, the intervenors aforesaid, respectively, filed bills in the Circuit Court of Madison county in the said cause, each alleging that under a contract made with the defendant Bailway Company they had performed certain work and furnished certain material in the construction of said railroad. The intervenors, Edward J. Scott et al. alleging that there was due to them $10,200.78, and that there was due tti the intervenors Grommet & Johnson $40,107.49 for work done in surfacing the roadbed, laying the track, steel, erecting trolley feed and telephone wires, and the fencing of the right of way, etc. Each of said intervenors alleging that under the laws of the State of Illinois they were entitled to a lien upon said railroad prior to the lien of the said bondholders and of all other persons, for the amount due to each of them respectively and asked that the property of the said Bail-way Company be sold to satisfy such liens. That after-wards on March 7, 1912, and during the March Term of the Madison county Circuit Court, a decree was entered in such court reciting the substance of the former order appointing the receiver in vacation, finding that the appointment of such receiver was necessary and proper to preserve the property of said Bailway Company for the benefit of the persons interested therein, and that such facts were admitted by the answers filed as aforesaid and decreeing that the above mentioned order and decree entered on September 18, 1911, is hereby in all things approved and confirmed and directing the said Frank L. Butler to continue as such receiver, requiring him to file a report herein on or before April 15th next, showing the receipts and disbursements, condition of the property, together with such other information as is necessary to advise the court of the condition of the business of the defendant Railway Company, and providing for exceptions to be filed to such report and appointing a special master to hear testimony and report conclusions with reference to such exceptions. Also providing that any party competent to maintain a bill for foreclosure of the mortgage be permitted to intervene by petition or otherwise for such foreclosure, and ordering that all issues arising in this cause, including the several intervening petitions and answers thereto, shall, when properly at issue, be referred to the special master to take testimony and report conclusions of law and facts.

On May 16,1912, W. C. Fordyce, George L. Edwards, J. C. Van Riper, C. A. Caldwell and John J. Cummings constituting a bondholders committee for the owners of such bonds, filed a petition herein representing that as such committee they are the legal holders and owners of $551,000 face value of the entire issue of $600,000 of said bonds, and representing that at the time the receiver was appointed herein five and a half miles of the said railroad had been built from its terminus at Alton to the town of Godfrey and the cars thereon were then in operation; that the .grade had been completed and culverts and bridges built and the roadbed completed and ready to receive the rails and ties on the road from Godfrey to the city of Jersey-' ville, and that such rails and ties had been laid from Godfrey for a distance of about five miles; that the overhead construction consisting of trolley poles, trolley wires and feed wires, etc., had been erected for a distance of about six miles beyond Godfrey; that a large amount of material consisting of copper wire, ties, poles, steel wires, and other material is now on hand, in the possession of the receiver, available for the further "construction of said road and that such material was of the total value of about $80,000; that the Railway Company had acquired and owned the right of way from Alton to Jerseyville; that taxes on said railway property, payable in 1912, amounting to $1,000 had not been paid, and while the revenue received from the railroad was sufficient to pay the operating expenses it was insufficient to pay the taxes and that the material on hand was rapidly deteriorating and ought to be used at once in the completion of the road in the interests of all concerned; that the roadbed and embankment of the Company are washing away and the rails, so far as laid, are becoming service bent and continual damages and deterioration of said railroad and said material is in progress. That the point to which said railroad had been completed is not near any village or city and not a terminal point of any value to said road, and asking that an order be entered authorizing the receiver to complete and equip the said railroad from the town of Godfrey to the city of Jerseyville and for that purpose to issue receiver’s certificates in an amount not to exceed $150,000 and asks that all the defendants and intervening petitioners be required to answer this petition and asks that such receiver be authorized to enter into a contract for the completion and equipment of such road.

On May 30, 1912, the intervenors, Edward J. Scott et al., Robert Curdie et al., W. C. Fordyce et al., respectively, filed answers to such petition denying many of the material allegations of said petition and averring that the said W. C. Fordyce et ah, were guilty of laches in failing to take any steps or proceedings for the protection of their rights under the said deed of trust, and averring that to enforce such petition would be unjust and oppressive and violative of the rights of these intervenors who have mechanic’s liens upon said property which are under the statute of the state of-Illinois, and under the principles of equity a first and prior lien on all of the property of said Railway Company, which such intervenors are with all due diligence attempting to enforce by the petitions heretofore filed herein, and that the certificates which the receiver might be authorized to issue would be null and void because the original bill filed is wholly wanting in equity and insufficient to warrant the appointment of a receiver by this court, and that such appointment was ill-advised and wholly void; and denies the right of the court to authorize the issuing of such certificates and the mating of. them a prior lien to the rights of the intervenors upon such property; and deny that the revenue derived from the operation of such railroad is insufficient to pay the''operation of said road and the taxes, and deny that the material on hand is deteriorating and deny that it is to the best interest of all concerned or that it is necessary to prevent damage and loss to the bondholders and lien complainants that such receiver be authorized to complete and equip said road.

The court heard the testimony of witnesses upon this petition, and the answers filed thereto, and thereafter on July 9, 1912, rendered an interlocutory decree wherein it is determined by the court that the allegations of the intervening petition of W. C. Fordyce et al. are substantially true, and that the relief prayed for therein should be granted, and that they represent substantially ninety-five per cent, of all outstanding-bonds; that work had been done upon said road and material on hand to be used in the completion of such railroad to the value of about $80,000 and that such materials are deteriorating- in value and unless made use of immediately will further depreciate and that it is to the best interest of all concerned and for the preservation of the property now in the possession of the receiver, and for the preservation of its business and good will that such receiver redeem the property from the tax sale and proceed without delay and with all convenient speed to construct and complete the unconstructed portion of said railroad from the town of Godfrey to the city of Jerseyville and to put such portions as are partly constructed in good order and equip the same so that it may be operated as a railroad, and to do all other things which may be necessary and proper to consummate such purpose, and for such purpose, and for the liquidation of all necessary operating expenses receiver’s certificates were authorized to an amount not to exceed $150,000 in denomination of $1,000 each, and to bear interest at six per cent, per annum, and that such certificates be made a first and valid lien upon all the property of every nature and description of the said Bailway Company, and the earnings after deducting operating expenses. Said receiver was authorized to sell said certificates from time to time as was needed at not less than ninety cents on the dollar of the par value thereof, and were made a paramount lien on all of the property of the defendant Bailway Company and were to be prior to all other liens or claims thereon whatsoever, subject only to the operative expenses of said Bailway Company.

It was further provided by such decree that such certificates are issued upon the condition that under any judicial sale to enforce liens of said certificates or to enforce the liens on the bonds of the petitioners or any liens, and to the end that sufficient money shall be realized for the payment of operating expenses, and all such claims as may be finally adjudicated to be a lien or liens superior to the bonds aforesaid, that any decree providing for the sale of said property shall provide for an up-set price and that no bid for said property shall be accepted unless the same is of sufficient amount to pay all outstanding receiver’s certificates and interest, cost of sale, operating expenses, expenses of the receivership and all such claims, together with interest as may be finally adjudicated to be liens prior to the bonds of said Bailway Company, and that all questions as to the priority of liens or the amounts thereof be reserved until the final hearing of this case. That such receiver was authorized to use the proceeds of the sale of such certificates, or so much thereof as was necessary for the redemption of the property from the tax sale and to complete said railroad, to the rendition of which decree the interveners, appellants here, excepted and prayed an appeal.

The evidence taken by the court upon the hearing of the application of Fordyce et al. for the issuing of receiver’s certificates and the answers filed thereto shows that the road was projected to run from the city of Alton through Godfrey to the city of Jerseyville, being a distance of about twenty-three miles, and was completed from Alton and in operation for the distance of about six miles, being about one mile from Godfrey. That the rails and ties were laid for a distance of about eleven miles between Godfrey and Jerseyville and poles erected for the distance of about seven miles and the trolley wires, feed wires and telephone wires for the distance of about five miles but not completed. The grading and bridges had been completed and a portion of the fencing done, about one-fourth of a mile of track laid in the city of Jerseyville. That all of the timber, bridges and culverts are completed ready to receive the ties and rails; that from the terminus of the present track to Jerseyville is about five and a half to six miles; that the graded portion of the roadbed is considerably washed and the bridges along the road are practically all filled causing the tracks to overflow; that the alignment was bad, there had been a general depreciation in the overhead construction, trolley wire broken in two places and the feed wire in three; that the revenue under the receivership has been barely sufficient to enable the receiver to gather the material together and store it so as to prevent it from being stolen; that to complete and equip the road a substation will have to be erected and a subway under the O. P. & St. L. road and that four passenger cars and one express car will have to be purchased; that it will require from $70,000 to $90,000 to complete the road and put it in operation without any ballast except earth, depending to some extent upon the kind of cars and other equipment procured.

It further appears that intervening petitions filed, by those claiming to have liens upon the property under the statute, amount to from $50,000 to $80,000.

The errors assigned by appellants, are, that the court erred in entering the decree of July 9, 1912, and that such decree is illegal and the court was without jurisdiction to enter it.

Second. That the court erred in granting the prayer of the petition of W. C. Fordyee et al. and in authorizing the receiver’s certificates for the purposes and in the amount and terms set out in the decree.

Under the first error assigned it is claimed by appellants that a suit cannot be maintained where the appointment of a receiver is the sole primary object of the suit and where no cause of action or ground for equitable relief otherwise is stated. That the appointment of a receiver can be ancillary only and in aid of some primary object of litigation between the parties. Many authorities have been cited upon this proposition which seem, as a general rule, to sustain the contention of appellants but the principal cases referred to and argued were cases in which the bondholders sought by a proceeding of this kind to obtain possession of the property for the purpose of preventing creditors, without liens, bringing suits against such property and of obtaining satisfaction for their claims, and while we believe from the authorities cited, 1‘ That the general rule is, that the appointment of receivers is an ancillary remedy in aid of the primary object of litigation between the parties, and such relief must be germane to the principal suit; and a suit cannot be maintained under this general rule where the appointment of a receiver is the sole primary ob-. ject of the suit and no cause of action or ground for equitable relief otherwise is stated.” Cyc. vol. 34, p. 29. But to this rule there are some well recognized exceptions which may arise under some peculiar circumstances that will justify a court of chancery in the taking hold of property, even for its preservation for the benefit of the lien holders and other creditors, and we think it has been well said, “The general rule, however, is subject to exceptions, some of which seem well defined while others amount to a repudiation of the rule itself under the particular circumstances and create a practical conflict of authority. And so it has been held that while, as a rule, a mortgagee cannot ask relief until his mortgage debt is due, nevertheless he may come into a court of equity before that time and ask for an injunction and receiver to prevent the subject-matter of his mortgage from being impaired or wasted.” Cyc. vol. 34, p. 31. And this exception has been followed in many cases, notably the case of Rutherford v. Pennsylvania Midland R. Co., 178 Pa. St. 38, and many of the decisions of the federal courts to which we have been referred. At all events, the weight of authority seems to be that if such a showing is made by a lien holder or other interested person as convinces the court, to whom application is made, that it is in the interest of all persons concerned to appoint a receiver then he has jurisdiction to act, and while the circumstances might not warrant the appointment yet if the order is erroneously made it would be valid until reversed and would not be void and could not be attacked except by direct appeal to reverse such erroneous order. If the court has jurisdiction of the subject-matter and of the parties nothing further is required. The cause of action may be defectively stated but that does not destroy the jurisdiction. Jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to a suit. If the law confers the power to render a judgment or decree then the court has jurisdiction. “Jurisdiction of the particular matter does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs.” O’Brien v. People, 216 Ill. 363. We are of the opinion that the case presented by the petition for the appointment of a receiver was of that class, that, if the circumstances and conditions were of a character to warrant it, the court had the power to appoint a receiver to prevent the subject-matter of the mortgage under which the petitioners were claiming from being impaired or wasted and that as this order was not appealed from or in any manner questioned, except collaterally, that it would be binding upon the parties until set aside and could be used as a basis for the entering of an order directing such receiver to issue receiver’s certificates if the facts and circumstances warranted it.

The next error assigned by appellants challenges the right of the court to issue receiver’s certificates for the purposes and in the amount and terms set out in the decree of July 9, 1912. This we regard as the ■most serious question in the case. It is insisted, and is probably true, that under proper circumstances the court has the power to issue receiver’s certificates for the purpose of making repairs, buying' rolling stock, complete an unfinished road and build a bridge and that to issue certificates for such purposes would' not be an abuse of the discretion vested in the court, but the question here is not the right to do any one or more of these things or to do some slight work or expend a comparatively small amount in improvements but it is sought to expend large sums of money in improvements and to extend the operation of a railroad from the territory of about six miles over a territory of twenty-two miles, and to do this.it becomes necessary to build a substation together with all of the necessary attachments thereto for the purpose of conducting the power to other parts of the road, also to build a subway under another railroad, to buy at least a portion of the rails for the purpose of completing the road, to buy the necessary cars for the purpose of equipping the road and to establish proper and suitable terminal stations, and in fact to expend a very large amount of money considering the character and length of the road sought to be constructed. It appears that bonds were issued, secured by trust deed upon defendant’s railway property, to the amount of $600,000 but that as such bonds were pledged for loans the indebtedness is about $327,000 that is secured by the bonds, as we understand the pleadings in this case, and now it is sought by this proceeding to place a further incumbrance that may extend to $150,000 upon this property that will have to be paid before the men who furnished the material and labor upon the road can receive any compensation for their services. If the amount here represented to have been actually expended upon the road represents or begins to represent its true value then it looks to us as if it would be unjust to require the interpleaders who claim to have first liens upon the property to be further postponed in the collection of their debt. The evidence shows the interpleaders’ claims or material men’s liens, as claimed, to be from $50,000 to $80,000; now if they are in fact prior to the bonds secured by the trust deed then by the payment of $50,000 to $80,000, with the expense attending the collection, they would be able to protect themselves but if it is permitted to increase the lien, prior to them, then it would take from $200,000 to $230,000 to protect them. The complainants in the original petition are stockholders to a large amount, and bondholders as they aver to an amount of over $200,000 but it does not appear from the record in this case as to whether the remaining bondholders are stockholders or not, but as the complainants are stockholders they doubtless invested in this enterprise for the purpose of gain and having failed to complete the road with the amount of bonds they caused to be issued, and having made contracts with these interpleaders to perform the work and furnish the material that has been put in the road we cannot see that it would be just and equitable to allow them to postpone the payment of the appellants’ claims to another lien that would, as we view it, inure to the benefit of the bondholders but not to the benefit of the material men. It seems from the pleadings herein that the complainants as- bondholders, the defendant and the committee representing ninety-five per cent, of the bondholders are all consenting that receiver’s certificates may be issued to the full amount of $150,000, if required, because, as we view it, it would inure to the benefit of all the bondholders but to the detriment of the people who furnished the material and labor to construct the road. As before stated, it may be that the courts in extreme cases may issue receiver’s certificates for such purposes but it is said by the Supreme Court of the United States in the case of Shaw v. Little Rock & Ft. S. R. Co., 100 U. S. 605: “The power of the courts ought never to be used in enabling railroad mortgagees to protect their securities by borrowing money to complete unfinished roads, except under extraordinary circumstances. It is always better to do what was done here whenever it can be; that is to say, reorganize the enterprise on the basis of existing mortgages as stock, or something which is equivalent, and by a new mortgage, with a Hen superior to the old, raise the money which is required without asking the courts to engage in the business of railroad building.” This would result in casting the burden of carrying this enterprise upon the men who are now the owners of the present bonds, and, as we believe from this record, the principal stockholders. The power to postpone existing liens to liens created by the court for the purpose of completing an unfinished railroad has rarely been exercised and ought not to be exerted unless it can be done without ultimate loss to the existing lien holders; it is to be exercised with great caution and, if possible, with the consent or acquiescence of all the parties in interest. It is said, “A practice grown up incident to railroad receiverships which has become firmly established by judicial sanction, whereby the receiver may be authorized to issue receiver’s certificates for the purpose of paying the incidental and necessary expenses for carrying forward the business of the corporation so that it may continue a going concern and thereby to supplant or supersede prior liens, and such an order may bind the parties even though entered without their consent. There is no fixed and inflexible rule defining the precise purposes in all cases for which such certificates may be issued, and while some courts have discouraged the practice, except when absolutely necessary for the preservation of the property as a going concern pending litigation, the propriety of the issuing of such certificates is recognized where the purpose is to pay for supplies, rentals and equipment necessary for the operation of the road, or to make repairs necessary to keep the road and its structures in a safe and proper condition to serve the public. But the primary • object of the receivership being to preserve the property some courts have refused to exercise power for the purpose of completing the construction of an unfinished road, or the making of permanent improvements not absolutely necessary to preserve the property; while on the other hand, power of the court has been recognized and exercised for such purpose.” Cyc. vol. 34, p. 297.

The object of the law in giving unto contractors a lien upon the railroad for the material and labor furnished in constructing the road was designed doubtless for the protection of men who were limited in their means, had nothing to gain by the enterprise, were not engaged in a speculation but were entitled to be paid for the labor performed and the material furnished. If the appellants are justly entitled to their lien, under the statute and decisions of the courts, then we believe it is manifestly unjust to permit such liens to be swept away by a large class of bondholders who are seeldng to protect themselves, even at the expense of such lien holders, and we believe that it was error for the court to undertake to complete this road under the circumstances and issue receiver’s certificates making them a lien prior to the liens of the appellants.

So much of said decree as provides for issuing receiver’s certificates and making the same a lien prior to the claims of the intervening material men or others having liens under the statute, is reversed and in all other respects the decree is affirmed, and the cause remanded for further proceedings in conformity with this opinion.'

Affirmed in fart, reversed in fart and remanded.