text:
    James Lingle, Appellant, v. Clear Creek Drainage & Levee District et al., Appellees.
    1. Courts, § 83

      —-when Circuit Court has no jurisdiction of creditor’s hill. On a creditor’s bill filed against a defunct drainage district and the county clerk, where it was sought to have a fund in the hands of said clerk and received by him from said district, and representing money turned over by the district for payment to property owners, applied towards the payment of complainant’s judgment and where appellee raised the question of the jurisdiction of the trial court over the subject-matter, held that the fund did not belong to the clerk, but was only in his hands as county clerk, and was really in the custody of the court itself, and that the' Circuit Court had no jurisdiction to direct the County Court or its officers as to the manner or to whom said fund should be paid.
    2. Courts, § 67*—when question of jurisdiction can he raised. The question of jurisdiction over the subject-matter of a suit can be raised at any stage of proceedings.
    Appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    A. Ney Sessions and James Lingle, for appellant.
    George H. Grear, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

This record is concerned with an appeal from a decree entered on a creditor’s bill filed by James Lingle, as complainant, in the Circuit Court of Union county, against the Clear Creek Drainage & Levee District, designated in the bill as the principal defendant, and Charles L. Kimmel, county clerk of said county, designated as the codefendant.

The bill alleges that on June 23, 191.4, the complainant recovered a judgment at law in said court against the principal defendant for the sum of $6,000 for attorney’s fees for services rendered continuously from January 1, 1908 to December 31, 1912; that execution was issued and delivered to the sheriff of said county where the principal defendant resided at that time, and was returned by him wholly unsatisfied, he certifying that he could find no property in his county whereon to levy to make any part of the amount of the judgment; that said judgment remains in full force and wholly unsatisfied; that the bill is not exhibited in collusion with the principal defendant or any other person, or for the purpose of protecting said defendant’s property from other creditors, but for the sole purpose of compelling payment of said judgment; that appellant is informed and believes,, and states the fact to be, that said codefendant has in his possession, or under his control, the sum of $2,000 belonging to the principal defendant, which the codefendant holds in trust or otherwise for the benefit of the principal defendant, or in which the latter is in some way, beneficially or otherwise, interested; that the principal defendant, during the years aforesaid, was a duly-acting corporation de facto, having been on May 1,1908, duly declared a corporate body by the County Court of said county, which appointed certain commissioners, who qualified as such; that said corporate body until January 1, 1913, assumed and took to itself all the powers, rights, privileges and duties pertaining thereto; that during said years aforesaid, the principal defendant proceeded to condemn certain right of way for corporate purposes, and, pursuant to proceedings in connection therewith, paid the sum of $2,000 to said codefendant as county clerk of said county; that on December 12, 1912, the organization of said principal defendant was declared invalid by the Supreme Court of this State, and thereupon said principal defendant ceased to do and transact business as such corporate body, and ceased to exercise corporate authority, and the purpose for which it was organized failed and was fully abandoned; that said sum of $2,000, which had been paid by the principal defendant for the purpose of paying to the several landowners the several amounts allowed them in said condemnation proceedings, remains in the hands of said codefendants, the said landowners not having received the same and not having demanded or claimed said moneys or any part thereof; that said principal defendant is insolvent and that in equity and law said sum of money should be applied towards the payment of the judgment debt of the complainant. The prayer of the bill was, that said Charles L. Kimmel, county clerk, be decreed to pay to complainant the moneys in his hands received by him as aforesaid, from the principal defendant, to be applied towards the payment of complainant’s judgment debt.

The codefendant Kimmel filed an answer denying that the principal defendant had any right or authority to enter into a contract for the employment of the complainant as attorney, and further denying that said sum of $6,000, or any part thereof, was legally due to complainant on account of said alleged employment. Said defendant further denied that said sum of $2,000 had been paid to him by the principal defendant or was now in Ms hands as alleged in the bill of complaint, but stated that on May 9, 1912, there was paid to him by the principal defendant the sum of $1,128.20 for the purpose of paying certain judgments rendered in condemnation proceedings had in the County Court of said county, wherein said drain-' age and levee district was petitioner and certain landowners defendants. Said defendant further stated that there was due to him as county clerk the sum of $2,000 as costs which had accrued in and about the proceedings had and carried on by said drainage and levee district in said County Court, no part of which had been paid, but which remained a judgment and debt against said principal defendant. The other matters and things alleged in the complaint, the answer neither admitted nor denied, but asked for strict proof thereof. A replication was filed and the case was tried upon said pleadings and an agreed state of facts.

The facts as agreed to were substantially as set forth in the bill, except that the amount in the hands of the county clerk was stated to be $1,128.20 as named in the answer, instead of $2,000 as alleged in the bill. It was further agreed that the only right, title or claim the said codefendant had to said sum of money in Ms hands was the alleged right to apply the same towards the payment of the fees and costs due him as county clerk. The stipulation concluded as follows: “It is further agreed and understood that the said co-defendant, Charles L. Kimmel, by joirnng in this stipulation, does not waive or admit the validity or legality of the said judgment, obtained by the complainant against the said drainage district, but all right to object to such judgment on the ground that the same could not be and was not legally obtainable at the time said suit was brought by the complainant against the said drainage district is hereby reserved to said co-defendant.” Upon the hearing the bill was dismissed for want of equity and appellant urges here-that the decree is erroneous because it is contrary to the effect of the pleadings, the agreed facts and the law.

Appellee raises the question of the jurisdiction of the trial court over the subject-matter of this suit, and that is a question which may be raised at any time. People v. May, 276 Ill. 332; Walton v. Pryor, 276 Ill. 563, and cases cited. The fund involved here appears from the stipulation of facts to have been paid to the codefendant, Kimmel, as county clerk and ex oficio clerk of the County Court, by the Commissioners of the Clear Creek Drainage & Levee District, for the purpose of paying certain judgments rendered in condemnation proceedings had in said County Court, wherein the principal defendant was petitioner and certain landowners living in the district were defendants. The money so paid in did not belong to the county clerk, but was only in his hands as clerk of the County Court, as custodian thereof for said court. The funds. were really in the custody of the court itself. The Circuit Court had no authority by any independent proceeding to direct the County Court, or its officers, in what manner or to whom said funds should be paid. The question of want of jurisdiction was therefore not only properly raised but should be sustained, and the disposition of this fund should be left to the County Court, which has the custody of it. Under the stipulation above referred to, the right is reserved to the codefendant Kimmel to question the validity of the judgment obtained by appellant against the drainage district, and a considerable portion of the briefs are devoted to a discussion of that subject. While the authorities relating to this question do not dispose of it in a manner that is entirely satisfactory, yet it would seem that under the circumstances of this case the judgment which appellant obtained against the district could not be maintained as a legal judgment.

As, however, in our view of the case, the Circuit Court had no-jurisdiction over the subject-matter, it is unnecessary to discuss any other question here. The court below properly dismissed the bill for want of equity, and its decree in so doing will be affirmed.

' Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Chicago Warehouse & Silo Fixture Company, Plaintiff in Error, v. Highland Planing Mill & Lumber Company et al., Defendants in Error.
    (Not to be reported in full.)
    Error to the County Court of Madison county; the Hon. J. F. Gill-ham, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action of assumpsit by Chicago Warehouse & Silo Fixture Company, plaintiff, against Highland Planing Mill & Lumber Company and others, defendants, to recover the purchase price of certain fixtures. From a judgment for defendants, plaintiff brings error.
    Terry, Gueltig & Powell and Albert, Albert & Bob, for plaintiff in error.
    Williamson, Burroughs & Ryder, for defendants in error.

      Abstract of the Decision.
    1. Assumpsit, Action of, § 23

      —when recovery of money may he had under common counts. When a contract has been fully performed and nothing remains to be done but a payment of the money, recovery may be had under the common counts.
    2. Pleading, § 285*—when leave to file special count is improperly denied. Where the common counts were filed in a case, and, after the court had announced a finding in favor of the defendant, leave to file a special count was denied, held that leave to file such count should have been granted.
    3. Sales, § 91*—when contract is not rescinded. In an action to recover the price of certain fixtures where the contract gave the purchaser the right to alter the size of the fixtures, and provided that the order could not be altered or countermanded except by mutual consent in writing, and the successor to such purchaser wrote to the seller requesting a cancellation of the contract, and such request was denied and the articles were shipped and defendant refused to receive them, held that, in view of the refusal on the part of plaintiff to consent to a revocation, the contract ■ was never rescinded, and there was a delivery of the goods.
    4. Assumpsit, Action of, § 23*—when recovery may he had under common counts. In an action to recover the price of certain fixtures where the contract gave the purchaser the right to alter the size of the fixtures, and provided that the order could not be altered or countermanded except by mutual consent in writing, and the successor to such purchaser wrote to the seller requesting a cancellation of the contract, and such request was denied and the articles were shipped and defendant refused to receive them, held that the contract was not rescinded and that recovery could be had under the common counts.
    5. Sales—what is effect of Uniform Sales Act on contract as to delivery. The Uniform Sales Act was not intended to supplant a written contract between the parties to a sale, nor to abrogate its terms, and, notwithstanding such act, parties have the right to make such terms by their contracts concerning the delivery of goods as they may desire.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Stephen D. Sexton, Plaintiff in Error, v. Michael Harrold, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 84

      —when evidence insufficient to show relation. In an action to recover commissions for the sale of shares of stock, where plaintiff contended that he was employed by the defendant in the presence of two employees of plaintiff, and where the defendant denied the employment, and the two employees were not produced as witnesses, held that the burden was on plaintiff to prove his employment by a preponderance of the evidence, and that the verdict in favor of the defendant was supported by the evidence and should be affirmed.
    2. Master and servant, § 82*—when letters relative to removal of friction between stockholders of corporation are admissible. In an action to recover commissions for the sale of shares of stock where plaintiff himself owned some of the stock, and there had been friction between the stockholders which caused the sale in question to be made, and defendant claimed that plaintiff’s action was purely voluntary and in accord with a plan of settlement, and complained of the admission of certain letters in evidence which had reference to the removal of the friction between the stockholders, held that as the letters tended to show the relations existing between the parties, and in view of the claim that plaintiff acted voluntarily, the letters were properly admitted.

      Error to the Circuit Court of St. Clair county; the Hon. Louis Bernreutee, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action by Stephen D. Sexton, plaintiff, against Michael Harrold, defendant, to recover the sum of $7,500, as commissions claimed to be due him for the sale of corporate stock owned by the latter. From a judgment for defendant,' plaintiff brings error.
    C. E. Pope, for plaintiff in error."
    Dan McGlynn, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

3. Appeal and ebbob, § 1537 —when repetition of instructions is not material. "While it is not good practice to give as many as five instructions on the question of the preponderance of the evidence, it is not material error to do so.


text:
    Harriet Gilmore, Appellee, v. Sylvester Killion et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action under the Dramshop Act, sec. 9 (J. & A. ¶ 4609, by Harriet Gilmore, plaintiff, against Sylvester Killion and others, defendants, to recover for loss of support due to the killing of Mannie Gilmore, a son of plaintiff, by one Charles Debow, an intoxicated person, in defendant Killion’s saloon, said Debow having been given intoxicating liquor by defendants. From a judgment for plaintiff for $660, defendants appeal.
    W. H. Helms, F. P. Drennan and Noleman & Smith, for appellants.
    Ulysses S. Schwartz and Charles F. Dew, for appellee.

      Abstract of the Decision.
    1. Intoxicating liquobs, § 187

      —right of mother to maintain action under Dramshop Act for loss of support due to death of son. In an action brought under the Dramshop Act by a mother against saloon keepers for the death of her adult son, where it was alleged that the deceased contributed to the support of the plaintiff, and defendants contended that before plaintiff could recover it was .incumbent on her to show that she had a legal right to be supported by her son, held that plaintiff was entitled to maintain the action.
    2. Intoxicating liquobs, § 261*—when instruction on exemplary damages in action under Dramshop Act is not reversibly erroneous. Where, in an action against saloon keepers under the Dramshop Act, the giving of an instruction authorizing the awarding of exemplary damages was complained of on the ground' that it failed to give any rule or guide for the fixing of such damages, held that the objection was well founded, but as the damages were small, and clearly within the actual damage sustained, the giving of the instruction was not prejudicial and therefore did not constitute reversible error.
    3. Instructions, § 84*—when instruction on evidence as basis for finding is not erroneous. An instruction requiring the jury to base its finding on the evidence, held not improper where in other given instructions the jury were required to base their finding on a preponderance of the evidence.
    4. Instructions, § 151*—when refusal of requested instruction is not error. The refusal of an instruction containing a correct statement of the law is not error where all elements contained in such instruction are fully covered by other given instructions.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    George Mirkovich, Appellee, v. Lazo Maravich, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 153

      —when verdict for breach of contract not to engage in saloon business urithin stipulated territory is sustained by evidence. In an action to recover damages for breach of contract not to engage in the saloon business within a certain number of blocks for a period of three years, where the defendant sold his saloon to the plaintiff and within about a month conducted a saloon within said radius, and where defendant contended that there was no basis in the evidence for the verdict rendered, unless speculative profits were made the basis, and the facts showed a flagrant violation of the contract and that plaintiff’s loss of business was occasioned by the opening of the" saloon, and the only question was as to the amount of damages, held that proof of plaintiff’s damages was difficult, and as plaintiff lost $20 per day after the other saloon was opened, and $2,000 in cash, and was compelled to close his doors in about eight months, a verdict for $1,300 was warranted.

      Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action by George Mirkovich, plaintiff, against Lazo Maravich, defendant, to recover damages for breach of a provision in a contract of sale of saloon business by which defendant agreed not to engage in the saloon business, within five blocks of the place where he had been in business, for three years. From a judgment for plaintiff for $1,300, defendant appeals.
    J. E. Grace and Dan McGlyww, for appellant.
    Minock & Zulley, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

2. Damages, § 66*—what are recoverable for violation of covenant not to engage in like business. For a violation of a covenant not to engage in a business like the one sold, the injured party may recover for loss of profits and diminution in the value of the business.

3. Contracts, § 393*—when refusal of instruction in action for breach of contract not to engage in like business is not error. In an action to recover damages for breach of a contract not to engage in a business like that sold to plaintiff, where an instruction that before plaintiff could recover he must prove that his business was damaged as a consequence of the breach of the contract, held that, as the execution and validity of the contract were not disputed, plaintiff was entitled to recover at least nominal damages without any proof of actual damages, and therefore the refusal of the instruction was not error.

4. Damages, § 198 —not necessary that all instructions state measure of. In an action to recover damages for breach of a contract not to engage in a business like that sold to plaintiff, where the giving of instructions telling the jury that if they believed from a preponderance of the evidence that the contract was executed and that defendant had violated it, their verdict should be for the plaintiff, were complained of, held that such instructions stated the law correctly, and, as the instructions on the whole stated the measure of damages correctly, it was not necessary for each instruction to state such measure.


text:
    W. G. Markman, Appellee, v. O.L. Hallbeck and R. L. Hallbeck, trading as Hallbeck & Son, Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1411

      —when verdict not disturbed. In an action to recover for breach of a warranty in the sale of a secondhand gasoline engine, where the evidence was contradictory as to the working of the engine, and there was sufficient proof to warrant the finding that there was an express warranty and that the engine failed to fulfil such warranty, held that the verdict in favor of plaintiff should not be set aside.
    2. Sales, § 402*—when refusal of instruction on nonexistence of implied warranty is not error. In an action to recover for breach of a warranty in the sale of a secondhand gasoline engine, where there was an express warranty, held that the refusal of an instruction that in the sale of secondhand goods no warranty was implied, was not error, as in any event it was possible that secondhand goods might be sold under such circumstances as to raise an implied warranty.

      Appeal from the Circuit Court of Edwards county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action by W. G. Markman, plaintiff, against O. L. Hallbeck and R. L. Hallbeck, partners, trading as Hallbeck & Son, defendants, to recover damages for the alleged breach of a warranty in the sale of a gasoline engine by defendants to plaintiff. From a judgment for plaintiff for $96.67, defendants appeal.
    Alleu E. Walker and H. G. Morris, for appellants.
    A. M. Gee, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

3. Appeal and error, § 1525*—token instructions not reversibly erroneous. "When instructions treated as a series do not contain such error as would warrant a reversal, the fact that they were not carefully drawn and contain minor inaccuracies will not cause a reversal.


text:
    Anna Ingram, Administratrix, Defendant in Error, v. William J. Jackson, Receiver, Plaintiff in Error.
    1. Railroads, ■§ 508

      —who are trespassers on railroad right of way. In an action against the receiver of a railroad to recover for death, where it appeared that the deceased and his father, a man about seventy-eight years old, were walking upon a space between certain tracks, which, although railroad right of way, was generally used by the public, the father walking slightly in advance, and where as both entered upon the right of way a freight train running at about twelve to twenty-five miles an hour came around a curve about one and one-half miles away, and as it approached to within from twelve' to sixty feet, the father suddenly stepped on the track in front of the approaching train, and when the son tried to rescue him both were struck by the engine and killed, held that both the deceased and his father were trespassers, and that there could have been no recovery by the representative of the father under the proof, and that the attempted rescue by the son did not make him any the less a trespasser.
    2. Railroads, § 517*—when duty to exercise ordinary care to avoid injuring trespassers upon track arises. The duty to exercise ordinary care to avoid injury to trespassers upon a railroad track arises only after their presence upon the track is shown to have become known to the servants of the railroad company.
    3. Railroads, § 517*—what duty owed to trespassers. A railroad company owes no duty to trespassers upon its right of way, except to refrain from wantonly and wilfully injuring them, and this rule is the same whether they are trespassers or licensees.
    4. Railroads, § 509*—what is effect of traveling on track with knowledge of company on relation of trespasser. The fact that persons have been in the habit of traveling upon the right of way of a railroad company does not change -the obligation or duty of the company to such persons traveling thereon for their convenience, and they are still trespassers, even though such use was known to the employees of the company.
    5. Railroads, § 550*—what is liability of company for death of trespasser attempting to rescue another trespasser on tracks. In an action against a steam railroad company for death, where the decedent and his father were trespassers upon the right of way of the defendant, and where the father stepped on the track in front of an approaching train and was killed, and the son in attempting to rescue the father was likewise killed, and it was claimed by plaintiff that she was entitled to recover on the theory that her intestate, in his attempted rescue of his father, was placed in a position of peril through the negligence of the defendant, held that notwithstanding the fact that the attempt to rescue the father from imminent danger may not have amounted to contributory negligence, no liability rested on the defendant, unless it was negligent in placing the father in peril, or in failing to avoid the injury after discovering the peril.
    6. Railroads, § 531*—what is duty of trainmen seeing persons on track. Trainmen operating a steam railroad train are under no obligation to stop their train, even though they see travelers on foot upon the right of way near the track, as they have a right to presume such persons will remain at a safe distance from the track, and they may continue in that assumption until such travelers manifest a disposition to go upon the track, or so near theretoJ as to be in danger of injury.
    7. Railroads, § 590

      —when error committed in passing upon instructions in action for death of trespasser. In an action against a steam railroad company for death, where the decedent and his father were trespassers upon the right of way of the defendant, and where the father stepped on the track in front of an approaching train and was killed, and the son in attempting to rescue the father was likewise killed, and where the court stated that the father could not have recovered under the facts of the case, and certain instructions given for plaintiff ignored the question whether the defendant was guilty of negligence tending to place the father in danger, while a number of those refused for the defendant covered such question, and required proof that the father was in a place of peril in which he had heen placed through the negligence of the defendant, at the time the deceased attempted to rescue him, before a recovery could be had, held that reversible error was committed in passing upon the instructions.
    8. Negligence, § 76*—when person injured in attempt to rescue person imperiled 6y negligence of another may recover.. A person attempting to rescue one imperiled by the negligence of another may, if injured in the attempt, recover from the negligent person if the attempted rescue be not one of recklessness and rashness and the rescuer did not place the imperiled person in danger.
    9. Railroads, § 536

      —when violation of speed ordinance is not proof of wantonness or wilfulness. Although the violation of a speed ordinance by a steam railroad company is prima facie proof of negligence, yet it is not proof of wantonness qr wilfulness, especially when the injury occurred at a place which did not have the appearance of a public crossing.
    Error to the Circuit Court of Franklin county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed June 18, 1917.
    Edward C. Craig, Donald B. Craig and Holmes & Dillon, for plaintiff in error; Homer T. Dick, of counsel.
    Thomas H. Creighton and W. P. Seeber, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notesn Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

Plaintiff in error, William J. Jackson, receiver of the Chicago & Eastern Illinois Railroad Company, operates a railroad running north and south through the City of Benton in Franklin county. About a half mile south of the north corporation line of the city, Joplin street crosses the railroad right of way, running east and west. From a distance north of Joplin street south to the depot the railroad consists, of two tracks, the main track to the west and the passing track to the east. These two tracks are about nine feet three inches apart, and the space between them is filled with chat. For years people living in the northeast part of the city have used this space as a passag’eway in going to and coming from the depot and the business part of the city. Along the east side of the right of way from Joplin street on the south is Frisco street. The first street south of Joplin street extending entirely across the right of way, with a crossing over the railroad tracks, is Burkett street. For about one and one-half miles north of the city limits the track is straight and the view unobstructed. About three o’clock p. m. on August 21, 1915, James Henry Ingram with his father, Theophilus J. Ingram, a man of about seventy-eight years of age, had come from their home located east of the right of way and north of Joplin street. They came on the right of way at Joplin street and started south about midway between the two tracks, the father slightly in advance of the son. About the time they came upon the right of way a freight train consisting of fifteen freight cars, an engine and caboose came around the curve one and one-half miles to the north. At a point about one hundred and seventy-five- or two hundred feet south of Joplin street, and when the engine was only twelve to sixty feet away, Theophilus J. Ingram for some reason stepped upon the main track in front of the engine. Henry J. Ingram attempted to rescue his father and both of them were struck by the engine and killed. The evidence shows that the engine had whistled some two or three times for crossings and the station since coming around the curve; that the bell had been ringing since crossing Joplin street and that the train was running at a rate of speed esti- ' mated by the witnesses to be from twelve to twenty-five miles per hour at the time of the accident. The city ordinance prohibited a speed of to exceed six miles per hour. Deceased left a widow but no children. Defendant in error, Anna Ingram, widow and administratrix of the estate of James Henry Ingram, deceased, brought this suit to the September term, 1915, of the Franklin Circuit Court, to recover damages for the death of her husband. The case was tried at the November term, 1915, and resulted in a verdict for $800. A motion for a new trial made by the plaintiff was confessed by the defendant, and a new trial granted. The case was again tried at the May term, 1916, and a verdict returned for plaintiff in the sum of $1,900. After overruling a motion for a new trial and in arrest of judgment, the court entered judgment on this verdict. This writ of error has been prosecuted by the receiver to review that judgment.

The deceased and his father being trespassers upon the railroad right of way, plaintiff in error owed them no duty except to refrain from wantonly and wilfully injuring them, and this rule is the same whether they be considered trespassers or licensees. The duty to exercise ordinary care to avoid injury to trespassers arises only after their presence upon the right of way is shown to have become known to the servants of the railroad company. Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500; Blanchard v. Lake Shore & M. S. Ry. Co., 126 Ill. 416; Illinois Cent. R. Co. v. Noble, 142 Ill. 578; Illinois Cent. R. Co. v. O’Connor, 189 Ill. 559; Illinois Cent. R. Co. v. Eicher, 202 Ill. 556. The fact that persons residing in the northeast part of the city had been in the habit of traveling upon the right of way did not change the obligation or duty of the railroad company to such persons traveling thereon for their own convenience. Such persons were still trespassers even though such use was known to the employees of the railroad company. Illinois Cent. R. Co. v. Godfrey, supra; Illinois Cent. R. Co. v. Hetherington, 83 Ill. 510; Cunningham v. St. Louis & W. R. Co., 260 Ill. 589.

The evidence shows the plaintiff in error’s train at the time of the accident was traveling at a rate of speed from twelve to twenty-five miles per hour, which was in excess of the speed limit fixed by the city ordinance introduced in evidence. While such violation of the speed ordinance was prima facie proof of negligence, yet it was not proof of wantonness or wilfulness, especially when the injury occurred at a place which did not have the appearance of a public crossing. Blanchard v. Lake Shore & M. S. Ry. Co., supra; Illinois Cent. R. Co. v. O’Connor, supra; Illinois Cent. R. Co. v. Eicher, supra; Thompson v. Cleveland, C., C. & St. L. Ry. Co., 226 Ill. 542. Under these authorities there could not be a recovery under the circumstances in proof in this case for the death of Theophilus J. Ingram. Until the attempted rescue, at least, defendant in error’s intestate stood in exactly the same relation to plaintiff in error as his father. Consequently it would seem there could be no recovery in this case unless the attempted rescue changed the relation of trespasser or licensee of deceased. Counsel for defendant in error contend such was the effect of the rescue, while counsel for plaintiff in error insist that the attempted rescue would not change the relation unless the person attempted to be rescued had been placed in a position of peril through the negligence of the company. Certain instructions offered by plaintiff in error, three in number, embodying the element that to authorize a recovery in this case the person sought to be rescued must have been placed in a situation of peril through the negligence of the railroad company, were refused, while none of the instructions given on behalf of defendant in error contained this element or recognized this theory. The ruling of the court upon the instructions as above referred to is said by plaintiff in error to have been particularly erroneous, and this principle of law is thoroughly discussed in the briefs on both sides. Under the authorities above cited as applicable to the facts in this case, it cannot be held that Theophilus J. Ingram had been placed in a position of peril through the negligence of plaintiff in error. Hence, if plaintiff in error’s contention is sound, reversible error was committed in passing upon the instructions.

• The doctrine is laid down in 29 Cye. at page 524 that: “notwithstanding the fact that an attempt to rescue one from imminent danger may not amount to contributory negligence, no liability rests on defendant unless it has been negligent in placing such person in peril, or in failing to avoid injury after discovering the peril.” It has been shown that under the law of this State the father of the deceased was not placed in peril through the failure of plaintiff in error to exercise any duty it owed him, that is through any negligence of plaintiff in error, and the evidence does not show any failure on the part of the servants of plaintiff in error to exercise any duty to avoid the injury after discovering the peril. There was ample room for the deceased and his father to have walked upon the space between the tracks in safety. The witnesses testified the engine was only from ten to sixty feet away when the father stepped upon the track immediately in front of it. The accident occurred in the space between the Joplin street crossing and Burkett street, at a point which did not have any appearance of a public crossing. The trainmen were under no obligations to stop the train even though they saw deceased and his father upon the right of way near the track, as they had a right to presume the parties subsequently injured would remain where they were at a safe distance from the track until they manifested a disposition to go upon the same or so near thereto as to be in danger of injury. Casey v. Chicago & E. I. R. Co., 152 Ill. App. 441. It would appear to be the universally recognized law that a person attempting to rescue one imperiled by the negligence of another may, if injured in the attempt, recover from the negligent person if the attempted rescue be not one of recklessness and rashness and the rescuer did not place the imperiled person in danger. But the authorities do not appear to go to the extent of holding that the rescuer can recover regardless of the question whether the danger to the party attempted to be rescued was the result of negligence on the part of the person inflicting the injury or not. In Norris v. Atlantic Coast Line R. Co., 152 N. C. 505, 27 L. R A. (N. S.) 1069, it was said by the court in discussing this question that: “It is always required, in order to establish responsibility on the part of defendant, that the company should have been in fault.”

The instructions given for defendant in error entirely ignored the question whether plaintiff in error was guilty of negligence tending to place the father of deceased in danger, while a number of instructions refused for plaintiff in error, notably the twelfth, fifteenth and twenty-seventh which covered this point, and required proof that the father was in a place of peril in which he had been placed through the negligence of plaintiff in error at the time deceased attempted to rescue him before a recovery could be had, were refused. We are of opinion that the refused instructions offered by plaintiff in error above referred to stated the law correctly and that the court erred in refusing them. In view of what we have above said, we think it unnecessary to review the numerous other alleged errors assigned and discussed by plaintiff in error. ■ But for the errors in regard to the instructions hereinbefore indicated, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.'


text:
    George A. McHatton, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 209

      —when instruction on amount of recovery is erroneous. In an action for personal injuries by a passenger against a street car company, where the defendant complained of the giving of an instruction intending to state the rule as to the liability of a carrier, and concluding with the words “then your verdict will be for the plaintiff in such an amount as you may believe from the evidence he is entitled to recover,” held that by such instruction the jury were left free to give such damages as they might think plaintiff ought to recover, without confining them to any legal rule for fixing damages, and that the giving of such instruction constituted reversible error.

      Appeal from the City Court of Alton; the Hon. Jambs E. Dunnegan, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action by George A. McHatton, plaintiff, against the Alton, Granite & St. Louis Traction Company, defendant, to recover damages on account of personal injuries alleged to be due to the sudden starting of one of defendant’s street cars while plaintiff was in the act of alighting. From a judgment for $500 for plaintiff, defendant appeals.
    Williamson, Burroughs & Ryder, for appellant.
    B. J. O’Neill and L. B. Coppinger, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

2. Cabbiebs, § 482*—when refusal of instruction in action by passenger for injuries received in alighting from car is proper. In a personal injury action by a passenger against a street car company, where an instruction that the declaration did not charge as a ground of recovery that the defendant did not keep its car waiting a sufficient length of time for plaintiff to alight, but that the actionable negligence charged was the sudden and violent starting of the car, which caused plaintiff to be thrown, and that, unless such actionable negligence was proven as charged, the verdict must be not guilty, was refused, held that such instruction contained nothing material which was not fully covered by other given instructions, and as the charge in the declaration appeared to be as much a charge of failure to wait a reasonable time as a charge of negligence in starting, the refusal was not error.

3. Appeal and ebbob, § 1543 —when instruction on credibility of toitnesses is not reversibly erroneous. In a personal injury action by a passenger against a street car company, where an instruction was given telling the jury that where two witnesses testified directly opposite to each other on a material point, and were the only ones that testified directly to the same point, the jury were not bound to consider the evidence evenly balanced or the point not proved, but might regard all the surrounding facts and circumstances proved at the trial and give credence to the one witness over the other, if the jury thought such facts and circumstances warranted it, held that, while such instruction was somewhat argumentative and was not to be wholly commended, it did not contain reversible error.


text:
    Richland Milling Company, Appellant, v. Lane Brothers & Erwin, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1787

      —when reversal proper. Failure on the part of the appellee to file a brief will cause a reversal under Rule 27 of the Appellate Court rules: ..
    2. Set-óff and recoupment, § 14*—when account is not subject of set-off. An account due to two parties cannot be the subject of a set-off in an action against only one of said parties.
    Appeal from the Circuit Court of Williamson county; the Hon. N. 0. Potteb, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action by the Richland Milling Company, a corporation, plaintiff, against Lane Brothers & Erwin, defendants, to recover on an amount for feed sold by plaintiff to defendants. Defendants interposed a plea of set-off exceeding plaintiff’s claim on an account for labor performed by defendants and another person, under a contract with plaintiff. From a judgment for $92.06 in favor of defendants, plaintiff appeals.
    W. W. Skaggs and James O. Miller, for appellant.
    No appearance for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    The People of the State of Illinois for use of Mary Bothman et al., Appellees, v. Title Guaranty & Surety Company and James W. Brown. Title Guaranty & Surety Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1725

      —when decision on former appeal is controlling. In an action upon a surety bond, where the question involved was as to whether or not the act of a county clerk in negotiating and selling certain bonds was his official act, and where on a former appeal the sustaining of a demurrer to the declaration was . held error, and, on the reinstatement of the case, special pleas were filed which were but a restatement of defendant’s contentions in the former case, which were disposed of by the opinion, held that general demurrers thereto were properly sustained.

      Appeal from the Circuit Court of Jackson county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by the People of the State of Illinois, for the use of Mary Bothman and others, plaintiffs, against James W. Brown, county clerk of Jackson county, and the Title Guaranty & Surety Company, defendants, on the official bond of said Brown. From a judgment against defendants in the sum of $5,000 debt and $5,000 damages, the Title Guaranty & Surety Company alone appeals.
    For the decision on a former appeal, see People v. Brown, 194 Ill. App. 246.
    Denison & Speller, for appellant.
    Isaac K. Levy, Martin & Glenn and John M. Herbert, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.


author: Mr. Presiding Justice Thompson

text:
    Melissa J. Taylor, Appellee, v. Isaac J. Reed et al., Commissioners of Highways of Township 21, Allen’s Grove Township, Mason County, Illinois, Appellants.
    1. Roads and bridges, § 165

      —when evidence insufficient to show diversion of water from natural course by grading. On a bill by an owner of land abutting on both sides of a highway for an injunction requiring highway commissioners of a town to replace dirt removed from the highway, causing embankments against complainant’s premises, and to remove obstructions to flow of water in its natural course and for damages from such improper grading, evidence held sufficient to show that the water was not diverted from its natural course upon complainant’s land and that complainant’s land was consequently not damaged.
    2. Roads and bridges, § 167*—when abutting landowner not entitled to damages for injury to land and property due to improper grading. A complainant is not entitled to both a mandatory injunction against highway commissioners to compel highway commissioners who have improperly graded a highway to make the bank along the side of the highway next the land of an adjoining landowner of a specified width, and damages because fences are undermined and land washed away.
    3. Roads and. bridges, § 154*—what is nature of work of highway commissioners in constructing or repairing highway. The work of constructing or repairing a public highway is not a judicial but a ministerial act, and must be performed with a proper regard to individual rights.
    4. Roads and bridges, § 165*—when township not liable for acts of highway commissioners in diverting water from its natural course. A township is not liable for the unlawful conduct of its commissioners of highways in diverting water from its natural course, whereby the water is caused to flow upon the.land of another.
    5. Roads and bridges—when township is liable for failure of highway commissioners grading highway to construct culverts or crossings. A township is liable for the failure of highway commissioners to fulfil their duty, under Hurd’s Rev. St. ch. 121, sec. 105 [Cal. Ill. St. Supp. 1916, j[ 10000(105)], to construct good and sufficient culverts or crossings at entrance gates or openings along the highway after grading the highway.
    6. Costs, § 21

      —when taxed against complainant. The costs, if any, occasioned by endeavoring to prove such allegations as a complainant has failed to prove, or for which he is not entitled to recover, should be assessed against him, unless such costs were necessarily made upon an allegation under which he is entitled to recover.
    Appeal from the Circuit Court of Mason county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    Edmund P. Nischwitz and Thomas D. Masters, for appellants.
    W. E. Stone and Stone & Dick, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Melissa J. Taylor filed a bill in equity against Isaac J. Reed, J. H. Rankin and Jacob Clausen, alleging that she is the owner of the east half of the southeast quarter of Section 7 and of a life estate in the southwest quarter of the- southwest quarter of Section 8 in Allen’s Grove; that there is a public highway of the width of forty feet on the section line between said lands; that the slope of said land is such that the water in a state of nature ran northerly down the road and across the northwest quarter of the southwest quarter of Section 8, owned by one Barnett; that defendants are commissioners of highways, and as such have caused the road to he so graded that there was a ditch on either side of the highway about four feet deep within a few inches of her fence or line; “that in a state of nature said road was practically level and there was no grade or cut upon the sides ’ ’; that by said grading and by placing obstructions 'the defendants have caused the water, which in a state of nature passed down the road onto the premises of Barnett, to be diverted and to pass over complainant’s land on the west side of the road to the great damage thereof. The hill prays that defendants be directed to replace the dirt removed from the highway causing embankments against complainant’s premises, and that said embankments be left not less than one-tenth of the width of the road, and to remove the obstructions so as to permit the water to flow in its natural course upon the lands of Barnett; and that the damages to complainant’s land resulting from such improper grading be ascertained and the defendants be decreed to pay the same.

The bill was amended by making Beed, Bankin and Clausen defendants as commissioners as well as personally. Answers were filed by the defendants personally and as commissioners, denying all the allegations of the bill alleging wrongful acts done by them.

A cross-bill was also filed by the Commissioners of Highways for the Town of Allen’s Grove, alleging that the public highway described in the original bill was regularly laid out morb than thirty years ago; that Melissa J. Taylor owns the land for eighty rods on both sides of the highway, and said highway is practically level and has been so graded that it is practically passable for the greater part of the year; that at a certain point in said eighty rods, there has been a culvert across said highway continuously for over thirty years; that a pipe forty-eight inches in diameter is a part of said culvert; that said culvert permits surface water, which in a state of nature collected east of it, to flow across said highway along a natural water course from the southeast to the northwest over the land of the defendant; that no waters are brought to said culvert that would not flow there in a state of nature and it is necessary to keep said culvert clear of obstructions that said highway may be maintained fit for travel; that the defendant has planted -trees along said water course and has caused the ends of the culvert to be obstructed and stopped up with limbs and tops of trees and debris and old junk, rendering said culvert useless and causing water to flow over said highway making it impassable, and that she has been notified to remove such obstructions but she refuses to do so and states that she proposes to fill up said pipe. The prayer of the cross-bill is that defendant be ordered to remove said obstructions from the natural water course and that she be enjoined from interfering with the natural flow of water in said water course.

The defendant answered the cross-bill denying that she had obstructed the water course and insisting that she is not asking relief against the commissioners of highways but has made them parties that the public may have notice of the relief prayed in her bill.

The evidence was heard before the chancellor. At the beginning of the trial a stipulation was entered into between the parties that the decree to be entered shall provide that “the ditches in the roadway commencing at the northwest corner of the southwest quarter of the southwest quarter of Section 8, and running thence north to the highway extending on a line east and west” shall, by the commissioners of highways of said Township 21, be cleared of obstructions of hedge brush and silt and the ditch kept open; “and that the ditch on the west side shall be constructed with a uniform berm of three and one-half feet from the west line of said road”; and the ditches shall be kept clean of a uniform depth and that these alterations and changes in the ditches shall be completed by the commissioners within six months from date of order. It is further stipulated that the complainant, and cross-defendant, will permit the culvert under the roadway between the southwest quarter of the southwest quarter of Section 8, and the southeast quarter of the southeast quarter of Section 7, to remain in the condition it now is in, and that “she will not place any obstructions in the ditch that will close it up or interfere with the opening of the culvert; and that she will keep the openings of the culvert from the east and ‘west sides open so that water can freely flow through, in so far as there shall be any obstructions in the water course on the east and west sides of said culvert upon the lands of complainant, leaving the question of damages to be determined by the court.”

A decree was entered setting forth the stipulation verbatim, and ordering that the obstructions in the ditch on the east side of the highway consisting of hedge brush and silt be removed and the ditch kept open by the commissioners and their successors, and that the commissioners and their successors shall cause the ditch on the west side to be so constructed that there shall be a uniform.berm of three and a half feet from the west line of said ditch to the fence, and said ditches shall be of uniform depth and shall be kept clear by the commissioners, and that these alterations and changes shall be completed within six months from the date of this order.

It is further decreed that the complainant, the cross-defendant, be and is enjoined from obstructing the culvert under the roadway south of her residence and that she shall keep said culvert open and free from obstructions on her land.

The court further finds from the evidence that the grading of the roadway as described in the original bill has damaged her premises to the extent of $100, and it is decreed that the defendants, as Commissioners of the Township of Allen’s Grove, and their successors, pay to the complainant within thirty days the sum of $100 together with the costs to be taxed.

The decree is an agreed decree, except upon the question of damages. The only questions argued are whether the township can be held liable for damages and, if so, what amount should be assessed against it, and should it be held for all the costs in the case?

Counsel for appellee have in their brief drawn a plat which shows the drainage of the surface water over the land owned by appellee, and in which she had a life interest, and over the land owned by Barnett. This sketch shows conclusively that the commissioners have not diverted water from its natural course upon her land, but, by the ditches on the east side of her land, water which would naturally run over it is carried around it. So that the land of the complainant has not been damaged by the diverting of water upon it and she has been benefited by the water being carried around her land by the acts of the commissioners. It is also contended that the ditches are so close to her fence that, in time, water running in the ditches will undermine the fences and take away their support. The proof tends to show that in one place on the west side of the road the ditch, which there is one foot deep, is within four inches of the fence, but the general tenor of the evidence is that the banks between the ditches and the fences were on the top from two to four feet wide. It was agreed and the decree provides that the commissioners shall make the bank on the west side of the road across appellee’s land of the uniform width of three and one-half feet. When that is done there will not be any injury to her land, and she is not entitled to both a mandatory injunction and damages because of her fences being undermined and land washed away, which is part of the damages alleged in her bill.

The decree adjudges that said defendants, “as Commissioners of the Township of Allen’s Grove, in the county of Mason, aforesaid, and their successors in office, pay to the said Melissa J. Taylor, within thirty days from this date, the said sum of $100 together with the costs in this proceeding to be taxed.” The decree for damages is against the township, apparently for damages for alleged diversion of water upon the land of complainant, and for digging ditches too near the property line, and for damages to her means of ingress and egress to and from her land.

The work of constructing or repairing a public highway is not a judicial but is a ministerial act, and must be performed with a proper regard to individual rights. A town is not liable to an action for the unlawful conduct of its commissioners of highways in diverting water from its natural course, whereby the water is caused to flow upon the land of another. Cooney v. Town of Hartland, 95 Ill. 516; Town of Waltham v. Kemper, 55 Ill. 348; Tearney v. Smith, 86 Ill. 391; Nagle v. Wakey, 161 Ill. 387; Kennedy v. McGovern, 246 Ill. 497; Padfield v. Frey, 133 Ill. App. 232.

The decree is erroneous in assessing damages against the township for the alleged diversion of water and the excavating of the ditch so that the fences would be undermined.

The statute requires that: “In grading roads, whenever practical, it shall be done so as to leave not less than one-tenth of the width of the road on each side for a sidewalk; and * * * if a ditch is made at the * * * entrance of gates, or other openings of adjoining premises, the road authorities shall construct good and sufficient culverts, or other convenient crossings.” Hurd’s Rev. St. ch. 121, sec. 105. [Cal. Ill. St. Supp. 1916, ¶ 10000(105).] The proof shows that at two places where appellee had gateways to her fields from the road, ditches were left two or three feet deep without any culvert, and at another entrance what was claimed to he an insufficient culvert was placed, that left the ditch so low that loaded wagons could not cross it. It is the duty of the commissioners of highways in their official capacity to make good and sufficient culverts or crossings at entrance gates or openings along the highway. This being a requirement of the statute, and the township having failed to make such crossings, the township is liable for such failure. The question of the measure of damages for the failure to make proper crossings has not been argued, and we express no opinion concerning it.

The costs, if any, occasioned by endeavoring to prove such allegations as appellee has failed to prove, or for which she is not entitled to recover, should be assessed against her, unless such costs were necessarily made upon an allegation under which she is entitled to recover.

The decree is reversed and the cause remanded because of the errors indicated.

Reversed, and remanded.


text:
    Marion F. Jones, Appellee, v. Elizabeth Ritter and Ralph Ritter, Appellant.
    1. Landlord and tenant, § 478

      —when evidence sufficient to show giving notice of intention to terminate tenancy hy landlord. In an action of trover by a farm tenant against the landlord to recover the value of a crop of corn which matured after the alleged date of termination of the tenancy, evidence including an admission of plaintiff’s counsel, held sufficient to show the giving of notice of intention to terminate the tenancy by the landlord at a date prior to the maturity of the crop.
    2. Landlord and tenant, § 485*—when giving of second notice of termination of tenancy does not constitute waiver of first notice. A second notice by a landlord of termination of the tenancy at a particular time does not constitute a waiver of the prior notice, but must be deemed a precautionary measure, where the tenant is not misled.
    3. Landlord and tenant, § 478*—when tenant may not complain of notice of termination of tenancy. A tenant of a farm cannot complain because more notice than that stipulated by the lease as to intention to terminate a tenancy from year to year is given.
    4. Landlord and tenant—when lease of farm land is not invalid. A lease of farm land for five years beginning September 1st of a particular year and providing for termination of the tenancy by either party by giving sixty days’ notice prior to September 1st of any particular year is not invalid as being against public policy because of its unusual period of termination.
    5. Landlord and tenant, § 526*—when tenant has no right to crops after termination of lease. Where a term is fixed in time, either by the terms of the lease itself or by a notice terminating it at a time when the landlord has the right to end it, the tenant has no right to crops planted after notice of termination of the lease, but maturing after its termination.
    Appeal from the Circuit Court of Brown county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed April 16, 1917.
    Rehearing denied and opinion modified and refiled July 2, 1917.
    J. F. Regan and Hartzell & Cavenaugh, for appellants.
    W. Y. Baker and S. A. Hubbard, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

On September 27, 1910, Elizabeth Bitter leased to Marion F. Jones a quarter section of land from the 1st day of September, 1911, to the 1st day of September, 1916, at an annual rental of $350. The lease contains the following provision: “It is agreed that either party may terminate this tenancy, at the end of the third or any subsequent year, upon giving to the other party 60 days’ notice in writing prior to the end of such year of such intention.” There is also a provision that the tenant shall not plow up a piece of nineteen acres of land now in clover unless the same shall be winter killed.

The landlord claims to have given to the tenant a written notice in January or February, 1915, that she had elected to terminate the tenancy on September 1, 1915, the end of that tenant year. The tenant plowed up tlie nineteen acres of clover land and planted it in corn. In June, 1915, a second notice in writing was given Jones by the landlord notifying him of her election to terminate the tenancy on September 1, 1915. Jones vacated the leased .premises September 1st, leaving the corn, which had not then matured, on the premises. In October, Jones desired to return and harvest the corn, but re-entry to gather that on the nineteen acres was refused. Jones brought this suit against the landlord and her son in trover to recover the com.

A jury returned a verdict in favor of plaintiff for $194.75, on which judgment was rendered. The defendants appeal.

The only question involved is the right of appellee to harvest the com off the nineteen acres that was on the land that had been in clover. There was other corn on the land, but appellant did not object to appell» entering the premises and gathering the other com after the expiration of the lease. The right of appellee to harvest the corn on the nineteen acres depends upon when the lease was terminated and whether the corn had been planted at that time.

The corn, under the proof, was planted in the last days of May and the first days of June. It did not mature until in October. The fact that appellant may have permitted the appellee to gather other corn, that she might have prevented him from gathering, is not a waiver of her right to deny him the privilege of gathering the corn on the nineteen acres, if she had the legal right to refuse him that privilege. If the notice served in January or February legally terminated the lease on September 1st, that termination of the tenancy was not waived by a subsequent notice to the same effect.

There is a controversy over the question whether a notice to terminate the tenancy on September 1, 1915, was given in January or February of that year. Appellee testified to receiving a notice in June, 1915, which caused him to vacate the land September 1st. He denied getting and that the son of appellee handed any notice to him in January or February, but said he got a letter through the mail. He said he had been unable to find the letter, that it was lost. He was asked to give the contents of the letter but an objection was sustained on the ground that it was immaterial. A son of appellant testified that he wrote a notice and that both his mother and he signed it; that he read to and handed this notice to appellee the last of January or 1st of February, 1915, in the presence of one Briggs. The witness was asked to give the substance of the notice and replied: “I told him we wanted the place on the 1st day of September, and to not plow this certain piece of ground; didn’t want any more plowing in that piece of ground.” The appellant testified in her own -behalf and was asked concerning the writing she signed and in January delivered to her son. Counsel for appellee thereupon stated, “we admit he got it,” and counsel for appellant stated: “It is hereby stipulated and agreed that defendant Elizabeth Bitter gave written notice to the plaintiff in the latter part of January or the fore part of February, of the year 1915, of her intention and election to terminate the lease offered in evidence on the first day of September, 1915.” Counsel for appellee made no reply to this statement. It must be taken as proven that written notice was given in January or February, 1915, terminating the lease on September 1, 1915. The second notice terminating the lease on September 1st was given on June 22nd, after the corn was planted. The appellant was in no way misled by the second notice. It was not, and could not be understood as a waiver of the former notice but it was only precautionary, if for any reason the first should be held insufficient. 24 Cyc. 1334.

The lease under its terms terminated on September 1, 1916, without notice, or either party had the right to terminate it at the end of the third or any subsequent year by giving sixty days’ notice of such termination. The statute, chapter 80, sec. 5 (J. & A. ¶ 7043) provides: “In all cases of tenancy from year to year, sixty days’ notice, in writing, shall be sufficient to terminate the tenancy at the end of the year. The notice may be given at any time within four months preceding the last sixty days of the year.” At common "law, notice of at least six months, ending with the period of the year at which the tenancy began, was required to terminate a tenancy from year to year. Parties under the common law could agree in the lease that it might be terminated by a less notice. “When the lease provides for thirty days’ notice or any other period whether more or less than that required by law it must be given, but while less notice than that stipulated for is insufficient, yet, the tenant cannot complain because more is given.” Wood’s Landlord & Tenant, p. 80; Rogers v. Kingston, 34 L. H. Ch. 165; Richardson v. Gifford, 1 Ad. & El. 52. An agreement in the lease as to the notice, which shall be given to terminate it, would appear to supersede the statute, and the fact that the notice is given for a longer time than the agreement requires would not render the notice void, and, if given for the time provided in the lease, it is binding on the parties. We are constrained to hold that the notice given in January or February terminating the lease September 1st was a valid and binding notice, and no act of appellee, done after that time, could give bim any right in or upon the premises after September 1st. The parties made their own contract when they executed the lease. The parties cannot avoid the contract knowingly made, because of its unusual time of termination. It is their contract; it is not contrary to public policy and they are all bound by it.

The tenancy was terminated before the corn was planted.' When the term is fixed in time, either by the terms of the lease or by a notice terminating it at a - time when the landlord has the right to end it, the tenant has no right to crops planted after notice of the termination of the lease but maturing after its termination. 8 Amer. & Eng. Encyc. of Law 319. “If his term is certain and does not depend upon a contingency, so that at the time he sows the crop he may know that his term will not continue until he shall have reaped it, he will not be entitled to it as emblements” or way-going crops. Taylor’s Landlord & Tenant, secs. 534-536; Wood’s Landlord & Tenant, p. 971.

Under the evidence in the case and the admission of the appellant, no judgment for the recovery of the value of the corn planted after the notice terminating the lease was given in January of February can be sustained. The judgment is reversed with a finding of fact that the lease was terminated under the agreement • in the lease by a notice given in January or February, 1915, more than sixty days before September 1, 1915, and the corn sought to be recovered was planted after that time.

Judgment reversed with finding of fact.


text:
    Irene Rice, by John A. Walker, Appellee, v. Royal Neighbors of America, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Jersey county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    Statement of the Case.
    Action by Irene Rice, a minor, by John A. Walker, her guardian, plaintiff, against the Royal Neighbors of America, defendant, upon a certificate of insurance for $1,000 on the life of Alta M. Rice and payable to plaintiff as beneficiary. From a judgment for plaintiff for $1,129.12, defendant appeals.
    U. A. Screechfield, W. J. Chapman and Fred J. Du Hadway, for appellant.
    Thomas F. Ferns and Sumner & Reardon, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

Insurance, § 907 —when evidence shows self-inflicted abortion was cause of death of insured. In an action on a benefit certificate, evidence held sufficient to show that self-inflicted, abortion and not pneumonia was the cause of death of insured.


text:
    John Y. Chisholm, Trustee, Appellee, v. First National Bank of LeRoy, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of MeLean county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied and opinion modified and refiled July 2, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John Y. Chisholm, trustee in bankruptcy of the estate of the Clarke Crain & Elevator Company of Le Boy, plaintiff, against the First National Bank of Le Boy, defendant, to recover certain alleged preferential payments made to it by the bankrupt. From a judgment for plaintiff for $6,297.20, defendant appeals.
    For the decisions on former appeals, see 176 Ill. App. 382, and 190 Ill. App. 354, reversed in 269 Ill. 110. For a statement of the facts, see 269 Ill. 110.
    Leslie J. Owen and De Mange, Gillespie & DeMange, for appellant.
    Sterling & Whitmore and Livingston & Bach, for appellee.

      Abstract of the Decision.
    1. Bankruptcy, § 38

      —when evidence sufficient to sustain verdict for plaintiff in action by trustee against bank to recover preferences. In an action by a trustee in bankruptcy against a bank to recover certain alleged preferential payments to the bank by the bankrupt in violation of the Federal Bankruptcy Act, including the proceeds of the sale of an elevator business, part of which was paid directly in settlement of a note owed the bank and the balance deposited to the credit of the account of the bankrupt, which was overdrawn to an amount exceeding the balance of such proceeds deposited, evidence held sufficient to sustain a verdict for plaintiff.
    2. Appeal and erbob, § 1560*—when refusal of cautionary instruction is not reversible error. In an action by a trustee in bankruptcy against a bank to recover alleged preferential payments made in violation of the Federal Bankruptcy Act, an instruction that the fact that the court had instructed the jury relative to the measure of damages which might be allowed plaintiff in case he was entitled to recover under the evidence and instructions and the fact that defendant’s counsel may have discussed the subject in argument was not to be taken as implying that the court had any opinion one way or the other, or that said counsel was admitting that plaintiff was entitled to any allowance of damages, held to be a proper cautionary instruction, but its refusal not reversible error.
    3. . Bankruptcy, § 38*—when instruction on behalf of defendant in action by trustee to recover preferences is properly refused. In an action by a trustee in bankruptcy against a bank to recover alleged preferential payments consisting of the proceeds of the sale of the bankrupt’s business, part of which was paid directly in settlement of a note and the balance on an overdraft, an instruction that plaintiff was seeking to recover the amount received from the bankrupt in payment of its note on the ground that defendant knew at the time of payment or had reasonable cause to believe that it would thus illegally receive a greater percentage of its claim than other creditors, and that the law presumed that defendant did not have reasonable cause to believe that such payment would give it a preference, and no recovery could be had unless plaintiff proved that defendant knew or had reasonable cause to believe that it would thus receive a preference over creditors of the same class, held properly refused.

      See Illinois Notes Digest, Vols. XI to XY, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

4. Bankruptcy, § 38*—when requested instruction on right of a bank to receive payment of note from insolvent debtor is properly refused. In an action by a trustee in bankruptcy against a bank to recover alleged preferential payments consisting of the proceeds of the sale of the bankrupt’s business, part of which was paid directly in settlement of a note and the balance on an overdraft, a requested instruction for defendant that if the jury believed that the debtor was insolvent at the time it opened its account with the bank, and that it remained, so during the continuance of its transactions with the bank, and that at the close thereof the debtor had received more money from the bank than it had repaid, and that the payment of the note was a payment on open account in regular course of business, and the bank at the time of receipt thereof did not know or have reasonable ground to believe that the debtor was insolvent, the verdict should be for defendant, held properly refused, as the money received was applied directly in payment of the note and with the intention of extinguishing a pre-existing indebtedness evidenced by it.

5. Bankruptcy, § 23 —what constitutes a preference. The payment of the proceeds of checks by a bankrupt directly to a bank with the intention of extinguishing a pre-existing indebtedness, a note owed to the bank, and without having such proceeds credited to the bankrupt’s account, is voidable as a preference under the Federal Bankruptcy Act.


author: Mr. Justice Eldredge

text:
    F. M. Harbaugh, Appellant, v. City of Sullivan, Appellee.
    1. Pleading, § 1

      —determination of character of obligation. A court should not go outside of the pleadings to ascertain the character of the obligations sued on.
    2. Appeal and erbob, § 742*—what are part of record. A declaration and all other pleadings are part of the record.
    3. Appeal and ebbob, § 747*—when bill of particulars is pjirt of record. A bill of particulars is no part of the record unless made so by a bill of exceptions.
    4. Pleading, § 337*—what is object of bill of particulars. The object of a bill of particulars is to inform the defendant of the claim he is called upon to defend against.
    5. Pleading, § 338*—what is effect of bill of particulars. The effect of a bill of particulars is to limit plaintiff on the trial to the proof of the particular cause or causes of action therein mentioned.
    Appeal from the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    Statement by the Court. In an action of assumpsit against the City of Sullivan, the plaintiff filed a declaration consisting only of the common counts, one of which was for money had and received. To this declaration was attached' a bill of particulars as follows:
    “Bill of Particulars
    “Copt of Account Sued On.
    “This suit is brought to recover $61.67 which the plaintiff paid to the defendant on account of a certain special assessment of taxes which the plaintiff paid to the defendant in pursuance to an ordinance for the paving of Hamilton and Jefferson streets in the City of Sullivan, Illinois, which said street was afterwards paved and the taxes levied in pursuance to said ordinance ; the plaintiff was then and now is owner of lots 3, 4, 5, and 6 in Block 3 of Brosam Brothers’ addition to the City of Sullivan, Illinois; also the south half of block 24 of the original town, now City of Sullivan, Illinois, and the said taxes were levied against said property and paid by the plaintiff to the defendant for the purpose of paying for the paving of Hamilton street in said city, and to pay the costs and expenses of making the survey and specifications, etc. The total cost of said improvement and expenses was $32,788.51; total amount levied and collected for said purpose was $34,273.25, leaving a balance collected in excess of the cost of said improvement and expenses of $1,483.74, which amount should be paid to the property owners who paid said assessments, and the proportionate part of said $1,483.74 which was paid by the plaintiff as taxes on the above described property is $61.67, the last payment having been made in the spring of 1915. This suit is brought to recover said $61.67 and lawful interest thereon until the date of recovery.
    “The City of Sullivan,
    To F. M. Harbaugh, Dr.
    “To goods, wares, merchandise sold and delivered ..............;..................$100.00
    “To money lent and advanced.............. 100.00
    “To money paid, laid out, and expended...... 100.00
    “To money had and received, to and for the use of said plaintiff.................... 100.00
    “To money due for interest and forbearance. 100.00
    “To labor, service and material............. 100.00
    “To balance due on account stated.......... 100.00”
    To this declaration the defendant filed six pleas in bar of the action. The first five pleas are in legal effect the same, each setting out certain proceedings had in the County Court of Moultrie county upon an application by the Board of Local Improvements of the City of Sullivan, for an order of the County Court to confirm the final certificate filed by said board showing that the improvement upon Hamilton and Jefferson streets had been completed in the manner provided by the ordinance under which it had been made, and also setting out the judgment order of the County Court which found that the improvement conformed to the requirements of the ordinance and that no part of the original assessment was to be abated.
    The sixth is a plea of the statute of limitations, in which it is averred that the cause of action did not accrue within five years prior to the commencement of the suit.
    An affidavit of claim was filed with the declaration and an affidavit of merits was filed with the pleas.
    Appellant filed a general and special demurrer to all of the pleas which was overruled by the court, and appellant elected to stand by his demurrer, whereupon judgment was rendered in favor of the defendant in bar of the action.
    This appeal is prosecuted to review the action of the court in overruling the demurrer to the pleas.
    E. J. Miller, for appellant.
    J. K. Martin, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Much of the argument of counsel is directed to a discussion of the merits of the first five pleas, but from the view we take of this case it is unnecessary to determine the sufficiency of those pleas because whether they were good or bad the plea of the statute of limitations, in our opinion, must prevail.

Over ten years had elapsed since the cause of action accrued before suit was brought, and it is apparent that the question whether the cause of action is barred by the statute of limitations must be determined by first ascertaining what the cause of action is as shown by the record in the case. Appellant filed no replication setting out facts which might take the cause of action out of bar of the statute, but elected instead to demur to the plea. We therefore have in the pleading proper, for consideration, the declaration consisting simply of the common counts and the plea of the statute of limitations. It is insisted by appellant that the defense of the statute of limitations cannot apply because the money sued for was a trust fund held in trust by the City of Sullivan for the use of appellant, and that this fact is shown by the averments in the bill of particulars. It is perfectly clear that without the aid of the bill of particulars there is nothing in the record to show that this action is brought to recover a trust fund. The court cannot go out of the pleadings to ascertain the character of the obligation. Hart v. Tolman, 6 Ill. (1 Gilm.) 1. A declaration and all other pleadings are a part of the record. A bill of particulars is no part of the record unless made so by a bill of exceptions. Eggleston v. Buck, 24 Ill. 262; Franey v. True, 26 Ill. 184; Schofield v. Settley, 31 Ill. 515; Garrity v. Lozano, 83 Ill. 597; Star Brewery v. Farnsworth, 172 Ill. 247. The object of a bill of particulars is to inform the defendant of the claim he is called upon to defend against, and its effect is to limit the plaintiff on the trial to the proof of the particular cause or causes of action therein mentioned. Star Brewery v. Farnsworth, supra; McKinnie v. Lane, 230 Ill. 544. In the case of Fish v. Farwell, 160 Ill. 236, wherein the question of whether a bill of particulars, filed prior to the time of filing of certain additional counts, could be resorted to in determining whether said additional counts stated new cause of action against which the statute of limitations had run, the court said: “But, in any event, we are wholly unable to see how the bill of particulars helps out the original declaration. A court cannot go outside of the declaration to ascertain the cause of action. (Hart v. Tolman, 1 Gilm. 1.) A notice of stipulation filed with the declaration forms no part of the declaration, and the declaration cannot be aided by reference to it. (Humphrey v. Phillips, 57 Ill. 132; Quincy Whig Co. v. Tillson, 67 Ill. 351.)” In the latter case of Heffron v. Rochester German Ins. Co., 220 Ill. 514, the court cites the case of Fish v. Farwell, supra, and quotes with approval the language of the opinion above set out herein.

.The character of the cause of action must be ascertained from the declaration itself and cannot be determined from the statements in the bill of particulars or from other matters not in the record. The plea under consideration was a complete defense to the declaration and the court did not err in overruling the demurrer to it. The judgment is therefore affirmed.

Affirmed.


text:
    W. A. Keithley, Appellee, v. County of Clark, Appellant.
    1. Appeal and erbob, § 292

      —what is final judgment. The judgment of a court denying a motion to vacate a judgment is a final judgment from which an appeal may be taken.
    2. Appeal and ebbob, § 551*—necessity of taking and preservation of exceptions. The taking and preservation of exceptions on the trial of a case is unnecessary.
    3. Attorney and client, § 66*—right of attorney to make stipulation. Where an attorney is authorized to represent a client in a lawsuit, his authority extends to the right to stipulate on trial.
    4. Attorney and client, § 52*—when attorney presumed tq he authorized to represent party. It must be presumed that where an attorney appears as counsel for a party he is authorized to represent such party.
    5. ' State’s Attorney—when has authority to enter into stipulation of facts. A State’s Attorney, being directly authorized by Rev. St. ch. 14, sec. 5 (J. & A. 616) to defend all actions brought against his county, has 'authority to enter into a stipulation of facts on the trial of the case.
    6. Stipulations, § 19*—when enforced. Courts look with favor upon stipulations designed to simplify or settle litigation and .save costs to parties, and will, when called upon in any appropriate manner, compel parties to observe such stipulations unless they are illegal or contrary to public policy.
    Appeal from the Circuit Court of Clark county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    E. D. Jones, for appellant; John J. Arney, of counsel.
    Everett Connelly, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Judgment was entered in this case in favor of appellee against appellant for the sum of $106 and costs on the 11th day of July, 1916. Thereupon appellant prayed for and was allowed an appeal to this court and sixty days were permitted in which to file its bill of exceptions. On the 12th day of July, 1916, appellant made a motion in said cause to vacate all motions, orders and judgments theretofore made at said term. On the next day, July 13th, this motion was overruled. Ho appeal was taken from the ruling of the court on the motion. The bill of exceptions filed in this ..court contains the proceedings had upon this motion, and the action of the court in overruling the same is assigned as error on the record. Motion was made by appellee in this court to strike from the bill of exceptions everything therein shown to have transpired after the order granting the appeal from the original judgment, which motion was taken with the case and will be first disposed of. The judgment of the court denying a motion to vacate a judgment is a final judgment from which an appeal may be taken. City of Park Ridge v. Murphy, 258 Ill. 365* The judgment of the court below overruling the motion to vacate the judgment was a final judgment from which no appeal was taken by appellant, and the proceedings in regard thereto have no place in the record on this appeal from the original judgment and the motion of appellee will be allowed.

This case originated by appellee filing a claim with the Board of Supervisors of Clark county for $106 damages, based upon the refusal of said board to permit him to print the judicial ballots for the judicial election held in June, 1915. Appellee appealed to the Circuit Court where, a jury having been waived, the case was tried by the court upon a stipulation of facts and judgment was entered in favor of appellee for the amount of the claim.

It is first insisted by appellee that this court cannot consider any of the errors assigned for the reason that appellant did not take any exceptions to the judgment, or to any of the proceedings in the court below. The taking and preservation of exceptions on the trial of a case are no longer necessary. Miller v. Anderson, 269 Ill. 608; Dunne v. County of Rock Island, 273 Ill. 53.

Appellant in the court below was represented by the State’s Attorney, and he, together with counsel for appellee, signed a written agreed statement of facts in which it is stipulated that on the 9th day of June, 1914, the board of supervisors, after having duly advertised for bids for the county printing, accepted the bid of appellee and entered into a written contract with him for all the printing to be done for the county for one year beginning on June 9, 1914; that among the items mentioned in the contract it was agreed appellee was to furnish the following: General election ballots at the price of $0.75 per 100, sample ballots at $0.50 per 100, and election notices at $0.18 each; that this contract was in force when it became necessary for the ballots and notices for the judicial election in June, 1915; that appellee demanded of the county clerk that he be allowed to print the ballots, which the latter refused to do, but gave the contract for the printing of the same to another person; that appellee was properly equipped and ready and willing to do the work according to the contract; that appellee filed his claim before the board of supervisors at its September meeting 1915 for $106 for damages for breach of contract; that the same being the difference between the contract price and the cost of printing and delivering the ballots in question; that the county board disallowed the claim in whole and that appellee perfected his appeal to the Circuit Court.

There were other matters in the stipulation concerning a prior suit between the same parties upon the same contract in which a judgment had been rendered in favor of appellee, and it is urged by appellee that the judgment in that case is an estoppel by verdict of all the errors assigned in this case. From the point of view we take of this case it is unnecessary to determine that question.

The principal contention of appellant is that the State’s Attorney had no authority as such to make the stipulation on behalf of the count. It is well settled that if an attorney is authorized to represent a client in a lawsuit his authority extends to the right to stipulate on the trial. (Wilson v. Spring, 64 Ill. 14); and the presumption of law is that where an attorney appears as counsel for a party he is presumed to be authorized to represent such party. City of Belleville v. Citizens’ Horse Ry. Co., 152 Ill. 171; Lawrence v. Jarvis, 32 Ill. 304; People v. Parker, 231 Ill. 481; Butts v. Peoria Cownty, 226 Ill. 270; Ellis v. People, 199 Ill. 548.

Section 22 of article VI of the Constitution provides:

“At the election for members of the General Assembly in the year of our Lord 1872, and every four years thereafter, there shall be elected a State’s Attorney in and for each county in lieu of the State’s Attorneys now provided by law, whose term of office shall be four years.”

In the enumeration of duties of a State’s Attorney, the statute provides in the fourth paragraph of section 5, chapter 14, Rev. St. (J. & A. ¶ 616), as follows:

“To defend all actions and proceedings brought against his county, or against any county or State officer, in his official capacity, within his county.”

Thus the statute specifically makes the State’s Attomey the proper legal attorney to the county in all actions brought against it. The Attorney General has the power to enter into stipulations in suits which he is authorized to conduct as such. . People v. Spring Lake Drainage & Levee Dist., 253 Ill. 479; Spring Lake Drainage & Levee Dist. v. Stead, 263 Ill. 247. There is no apparent reason, and none has been suggested, why the State’s Attorney, who is directly authorized and directed by the law to act as the attorney for the county, should not have authority to enter into a stipulation of facts. Courts look with favor upon stipulations designed to simplify or settle litigation and save costs to the parties, and will, when called upon in any appropriate manner, compel parties to observe such stipulations unless they are illegal or contrary to public' policy. Such stipulations will be enforced by the courts in a summary manner, and it is the policy of the courts to enforce them if fairly made. People v. Spring Lake Drainage & Levee District, supra.

The stipulation in this case warranted the judgment in favor of appellee, and it is therefore affirmed.

Affirmed.