text:
    The People of the State of Illinois, defendant in error, v. Josephine Warren et al., plaintiffs in error.
    Gen. No. 34,519.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    Wm. W. Smith and Milton D. Smith, for certain plaintiffs in error. Burke & Crane, for certain other plaintiffs in error; James M. Burke, of counsel. John A. Swanson, State’s Attorney, for defendant in error; Otho S. Fasig, Edw. E. Wilson and Henry T. Chace, Jr., Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Daniel O. McGuire, appellant, v. Herman Gumbinsky et al., appellees.
    Gen. No. 34,542.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    John A. Brown, for appellant. Winston, Strawn & Shaw, for appellee General Fiber Co. Pennish & Rashbaum and William Friedman, for appellees Harry, Herman and Nathan Gumbinsky. Townley, Wild, Campbell & Clark, for appellee J. S. Bache & Co.; Morris Townley, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Jozefa Wroblewski, appellee, v. Stanislaw Wroblewski, appellant.
    Gen. No. 34,572.

      Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    Rehearing denied January 5, 1931.
    Alfred M. Loeser, for appellant. Kamfner & Halligan, for appellee; Arthur J. Goldberg, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    James McGinnis, appellee, v. Carlos Ames et al., appellants.
    Gen. No. 34,582.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    Samuel A. Ettelson, Corporation Counsel, and Francis J. Vurpillat, Special Assistant Corporation Counsel, for appellants. No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Leonard A. Shadburne, appellant, v. Elizabeth M. Shadburne, appellee.
    Gen. No. 34,657.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    Ray E. Lane, for appellant. Short, Rothbart, Willner & Lewis, for appellee; Joseph Z. Willner, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    W. H. Barber & Company, appellee, v. John Willis, trading as Jurgelionis & Willis and John Jurgelionis, defendants. John Willis, appellant.
    Gen. No. 34,672.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    Jacob Levy, for appellant; J. M. Gwin, of counsel. No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Frank J. Nenning, plaintiff in error.
    Gen. No. 34,744.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.

      Reeda & Peace, for plaintiff in error; M. Mayhall Smith, of counsol. John A Swanson, State’s Attorney, for defendant in error; Otho S. Pasig, Henry T. Chace, Jr., and Edw. E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Ida Slavik et al., appellants, v. Central Trust Company of Illinois et al., appellees.
    Gen. No. 34,284.
    Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed December 22, 1930.
    Francis M. Lowes, for appellants; George N. .Lowes and Henry N. Shabsin, of counsel. Richard E. Kropf and Fisher, Boyden, Bell, Boyd & Marshall, for appellees; Thomas L. Marshall, Richard E. Kropf and David A. Watts, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    John N. Johnson, appellee, v. M. Montelongo, appellant.
    Gen. No. 34,304.
    Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed December 22, 1930.
    Coburn, Kearney & Coburn, for appellant; Marshall V. Kearney, of counsel. Willard C. Lindsay, for appellee; B. M. Shaffner, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Charles J. Carlstrome and George H. Auer, trading as Carlstrome & Auer, appellees, v. Alfred B. Grunder, appellant.
    Gen. No. 34,440.
    Heard in the first division of this court for the first district at the June term, 1930.
    Opinion filed December 22, 1930.
    Walter A. Brendeeke, for appellant. Sonnensehein, Berkson, Lautmann & Levinson, for appellees; Henry L. Kohn, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr, Justice O’Connor

text:
    The People of the State of Illinois, defendant in error, v. Frank Gorman, plaintiff in error.
    Gen. No. 34,477.
    Heard in the first division of this court for the first district" at the October term, 1930.
    Opinion filed December 22, 1930.
    Adolph Marks, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Edw. E. Wilson, Grenville Beardsley and Otho S. Fasig, Assistant State’s Attorneys, of counsel.
   Mr, Justice O’Connor

delivered the opinion of the court.


text:
    Theodore Kinowski, defendant in error, v. Barbara Oswald et al. Northcenter Federal Finance Company, plaintiff in error.
    Gen. No. 34,510.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    David W. Roberts, for plaintiff in error. Otto Ade Arnston, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Jeffardo Picket, plaintiff in error.
    Gen. No. 34,522.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    William H. Temple, for plaintiff in error; Morris & Cashin, of counsel. John A. Swanson, State’s Attorney, for defendant in error; Otho S. Fasig, Edw. E. Wilson and Henry T. Chace, Jr., Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Sam Margolis, sometimes known as Samuel Margolis, and Goldie Margolis, defendants in error, v. Louis Ross et al. Louis Ross, plaintiff in error.
    Gen. No. 34,530.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    John A. Brown, for plaintiff in error. James E. McShane and Philip Conley, for defendants in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    B. F. Newman, trading as Chicago Realtor Publishing Company, appellee, v. Arthur Michel, trading as Arthur Michel & Company, appellant.
    Gen. No. 34,563.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 22, 1930.
    E. R. Elliott, for appellant. Charles S. Milan, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Matchett

text:
    John W. Keogh, plaintiff in error, v. Robert B. Peck, defendant in error.
    Gen. No. 34,350.

      Heard in the first division of this court for the first district at the June term, 1930.
    Opinion filed January 26, 1931.
    McHab, Holmes & Long and Alden, Latham & Young, for plaintiff in error; Hobart P. Young and Allan W. Cook, of counsel. Samuel B. King and Montgomery, Hart, Pritchard & Herriott, for defendant in error; Samuel B. King and Louis E. Hart, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Albert Goodman, plaintiff in error.
    Gen. No. 34,547.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Schnackenberg & Hansen, for plaintiff in error; Elmer J. Sehnaekenberg, of counsel. John A. Swanson, State’s Attorney, for defendant in error; Otho S. Pasig, Henry T. Chace, Jr., and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Sofie Malo, appellee, v. The Equitable Life Assurance Society of the United States and O. R. Cave, appellants.
    Gen. No. 34,578.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Mayer, Meyer, Austrian & Platt, for appellants. William Y. Baird, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Genevieve McMullen, appellee, v. Charles W. Brown, appellant.
    Gen. No. 34,588.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Church, Haft, Robertson & Crowe, for appéllant; Burt A. Crowe, of counsel. Coburn, Kearney & Coburn, for appellee; Marshall V. Kearney, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Personal Loan & Savings Bank, appellant, v. Bernard Henry Ford, appellee.
    Gen. No. 34,597.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.

      R. C. Darley, for appellant; O. G. Wahlgren, of counsel. Albert H. Pry, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    James H. Hooper, appellant, v. Victor X-Ray Corporation and. A. D. Gash, appellees.
    Gen. No. 34,606.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    James H. Hooper, pro se. Edwin Hamilton, for appellee A. D. Gash. Essington & McKibbin, for appellee Victor X-Ray Corporation.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Bama Whitaker, administratrix of the estate of Man Bradford, deceased, appellee, v. Metropolitan Life Insurance Company, appellant.
    ■Gen. No. 34,624.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Hoyne, O’Connor & Bubinkam, for appellant. Brown, Brown & Cyrus, for appellee; Sydney P. Brown, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Albert Burchard, appellee, v. John W. Esch, appellant.
    Gen. No. 34,654.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Behearing denied Pebruary 9, 1931.
    Edward H. Kubitz and W. W. O’Brien, for appellant. Edwin D. Lawlor, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Monroe H. Loeb, plaintiff in error.
    Gen. No. 34,527.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Henry H. Gibbs, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Julia Kosterman, complainant, v. John Kosterman, defendant. John Kosterman, cross complainant, appellee, v. Julia Kosterman, cross defendant, appellant.
    Gen. No. 34,557.

      Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Rehearing denied February 9, 1931.
    Albert H. Fry, for appellant. William O. Asay and Wallace Street-er, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Ethel Graves, appellee, v. Alexander Bisnow et al. Isadore Sarnoff, appellant.
    Gen. No. 34,648.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Rehearing denied February 9, 1931.
    Cohen, Tomas & Cohen, for appellant; George B. Cohen, of counsel. Dotson & Washington, for appellee; Heber T. Dotson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    In re Petition of Alfonso Cozzi to be discharged under the Insolvent Debtors Act.
    Gen. No. 34,699.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Coburn, Kearney & Coburn and L. T. Herzon, for appellant. George A. Gordon, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O ’Connor

text:
    Martha Lehmann, appellee, v. City of Chicago, appellant.
    Gen. No. 34,585.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Samuel L. Golan and Roy S. Gaskill, Assistant Corporation Counsel, of counsel. Charles G. Palmer, for appellee; Clyde C. Fisher, of counsel.
   Mr. Justice O ’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois for the use of William Wardell, executor of the estate of Mary W. Wallace, deceased, appellee, v. Benjamin F. J. Odell, appellant.
    Gen. No. 34,594.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Rehearing denied February 9, 1931.
    Benj. F. J. O’Dell, for appellant. Gurdon Williams, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Henry H. Morey, appellant, v. Harvey Morrell, appellee.
    Gen. No. 34,603.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Channing L. Sentz, for appellant. Leslie J. Taylor, E. E. Adams and Gottlieb & Schwartz, for appellee; Claude A. Both and Irving T. Zemans, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Mary J. Palmer, appellant, v. Charles M. Field and Rose G. Field, his wife, appellees.
    Gen. No. 34,621.
    Heard in the first division of this court for the first district at the October term, 1931.
    Opinion filed January 26, 1931.
    Charles G. Palmer, for appellant; Clyde C. Fisher, of counsel. No appearance for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Anthony Mangano and Anthony Pelegrino, administrators of the estate of Frank Mangano, deceased, appellants, v. Daniel W. Voltz et al., appellees.
    Gen. No. 34,651.
    Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Arkin, Berman & Marks, for appellants; Francis J. Higgins, of counsel. A. S. and E. W. Froehlich, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Raymond A. Johnson, defendant in error, v. Frans A. Olson, plaintiff in error.
    Gen. No. 34,675.
    Heard in the first division of this court • for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Robert W. Dunn, for plaintiff in error. Cochrane & George, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Raymond A. Frey, trading as R. A. Frey Teaming Company, appellee, v. Simms D. McGuire and Lake Zurich Milk Company, appellants.
    Gen. No. 34,711.

      Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed January 26, 1931.
    Abraham Lepine, for appellants. No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Scanlan

text:
    Frieda Nonn, defendant in error, v. Andrew Sahn et al., plaintiffs in error.
    Gen. No. 34,182.
    Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed January 27, 1931.
    G. A. Buresh, for plaintiffs in error. Cummings & Wyman, for defendant in error; Harold Engstrom, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Mandel Mendelson, plaintiff in error, v. Josephine L. Kellogg, defendant in error.
    Gen. No. 34,195.
    Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed January 27, 1931.
    Max Murdock, for plaintiff in error. Leslie A. Needham, for defendant in error.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    In re Estate of Mary Folks, deceased. In re Petition of Carrie Stonebridge, appellee, v. Irving R. Folks et al., appellants.
    Gen. No. 34,278.
    Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed January 27, 1931.
    Ivor Jeffreys, for appellants. Brundage & Gorman, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Margaret E. Curtin, administratrix of the estate of George W. Curtin, deceased, appellee, v. Edward F. Brennan, appellant.
    Gen. No. 34,301.
    Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed January 27, 1931.
    William E. Rafferty, for appellant. Rudolph and Arthur E. Frankenstein, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Edwin J. Gill, appellant, v. Lisette Kellerhals and J. F. Hecht, appellees.
    Gen. No. 34,423.
    Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed January 27, 1931.
    Myron E. Wisch, for appellant; Sidney R. Tarkoff, of counsel. Cummings & Wyman, for appellees; Austin L. Wyman and Harold Engstrom, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Harry Silberg, plaintiff in error, v. Margaret Silberg, defendant in error.
    Gen. No. 34,484.
    Heard in the second division of this court for the first district at the October term, 1930.
    Opinion filed January 27, 1931.
    Walter P. Altenburg and J. V. DeLaney, for plaintiff in error. Arthur W. Dixon, for defendant in error.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Sophie Knopp, defendant in error, v. Rose Knopp, plaintiff in error.
    Gen. No. 34,502.
    Heard in the second division of this court for the first district at the October term, 1930.
    Opinion filed January 27, 1931.
    Rehearing denied February 7, 1931.
    T. Fred Laramie, for plaintiff in error. James Pereival Pio, for defendant in error.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Richard J. Ward, appellee, v. Elgin, Joliet & Eastern Railway Company, appellant.
    Gen. No. 34,247.
    Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed January 27, 1931.
    Rehearing denied February 7, 1931.
    Knapp, Beye, Allen, Cochran & Cushing, for appellant; Joseph L. Earlywine and Paul R. Conaghan, of counsel. Murphy 0. Tate and Schroeder & Metzger, for appellee; Werner W. Sehroeder, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John Mayer, appellee, v. City of Chicago et al., appellants.
    Gen. No. 34,269.

      Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed January 27, 1931.
    Samuel A. Ettelson, Corporation Counsel, James W. Breen, First Assistant Corporation Counsel, and Samuel L. Golan, Assistant Corporation Counsel, for appellants; Cora B. Hirtzel, Assistant Corporation Counsel, of counsel. Edward J. McArdle, Jr., for appellee; E. J. McArdle, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    William J. Guyer, appellee, v. The American Electric Fusion Corporation, appellant.
    Gen. No. 34,293.
    Heard in the second division of this court for the first district at the April term, 1930.
    Opinion filed January 27, 1931.
    Rehearing denied February 7, 1931.
    Brundage & Gorman, for appellant. Sanders, Childs, Bobb & Wesectt, for appellee; William L. Bourland, of counsel.'
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Bessie Weissman and B. Pareski, appellees, v. W. F. Cooney, appellant.
    Gen. No. 34,420.
    Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed January 27, 1931.
    M. Edward Abram, for appellant. Rooney & Melaniphy, for appellees; John C. Melaniphy, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Frances Rostenkowski, appellee, v. Chicago National Life Insurance Company, appellant.
    Gen. No. 34,429.
    Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed January 27, 1931.
    Lee D. Mathias and Clyde L. Todd, for appellant. Benjamin S. Mesirow, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr, Justice Gridley

text:
    Dave Cahn, appellee, v. Eva Snyder et al., defendants, on appeal of Fanny Goldberg, appellant.
    Gen. No. 34,453.
    Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed January 27, 1931.
    S. B. Barnett and Rosenberg, Braude & Zimmerman, for appellant. Cameron Latter, for appellee.
   Mr, Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Kerner

text:
    Harold Mandelbaum, appellee, v. Aetna Acceptance Company, appellant.
    Gen. No. 34,441.
    Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed January 27, 1931.
    Rehearing denied February 7, 1931.
    William S. Kleinman, for appellant. Walter Zittenfield, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Margaret Suess, appellee, v. Eastholm, Melvin & Yeager, Inc., appellant.
    Gen. No. 34,465.
    Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed January 27, 1931.
    Schuyler, Dunbar & Weinfeld and John A. Bloomingston, for appellant. Royal W. Irwin, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    Second District.
    M. J. Plonsker, appellee, v. Joseph Cabonargi, appellant.
    Gen. No. 8,183.
    Heard in’this court at the February term, 1930.
    Opinion filed September 30, 1930.
    Rehearing denied December 5, 1930.
    Hall & Hulse and Gerrit T. Thorne, for appellant. J. A. Miller, for appellee; Sidney H. Block, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    T. J. Stahl and L. E. Hulse, trading as T. J. Stahl & Company, appellees, v. Wilbur Glenn Voliva, appellant.
    Gen. No. 8,208.
    Heard in this court at the May term, 1930.
    Opinion filed September 30, 1930.
    Rehearing denied January 5, 1931.
    J. A. Miller and Sidney H. Block, for appellant; Sidney H. Block, of counsel. William E. Herr and George W. Field, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Ida M. Hinkle, appellee, v. Block & Kuhl Company, appellant.
    Gen. No. 8,228.
    Heard in this court at the May term, 1930.
    Opinion filed September 30, 1930,
    Rehearing denied December 5, 1930.

      Miller, Elliott & Westervelt, for appellant; Frank T. Miller and Clair Westervelt, of counsel. John E. Cassidy, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Presiding Justice Jett

text:
    Mary Scanlon, appellant, v. Asa Beebe et al., appellees.
    Gen. No. 8,089.
    Heard in this court at the February term, 1929.
    Opinion filed October 13, 1930.
    Frank J. Burns and James T. Bums, for appellant. Miller & Streeter, for appellees.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Cornelius S. Tarbox, appellee, v. Joseph Schirka, appellant.
    Gen. No. 8,176.
    Heard in this court at the February term, 1930.
    Opinion filed October 13, 1930.
    Rehearing denied February 12, 1931.
    Higgins & Minow, for appellant; Joseph M. Minow, of counsel. Monahan & Monahan, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Thomas Fleming, appellee, v. City of Elgin, appellant.
    Gen. No. 8,233.
    Heard in this court at the May term, 1930.
    Opinion filed October 13, 1930.
    Rehearing denied February 12, 1931.
    Pierce C. Tyrrell, for appellant; Allen B. Woodward, of counsel. McCarthy & McCarthy, for appellee; Frank A. McCarthy and Theodore N. Schnell, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Chicago Trust Company, appellee, v. Alex Sandroff et al., appellants.
    Gen. No. 8,231.
    Heard in this court at the May term, 1930.
    Opinion filed January 15, 1931.
    Claude M. Granger and V. A. Parish, for appellants. Hunter & Minor, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    William A. Klein, appellee, v. George L. Fenner, appellant.
    Gen. No. 8,260.

      Heard in this court at the October term, 1930.
    Opinion filed January 15, 1931.
    Arthur H. Shay, for appellant. Adsit, Thompson & Herr, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Presiding Justice Shurtleff

text:
    Third District.
    The People of the State of Illinois, defendant in error, v. Charles Gash, plaintiff in error.
    Gen. No. 8,390.
    Heard in this 'court at the January term, 1930.
    Opinion filed June 11, 1930.
    Rehearing denied October 16, 1930.
    John F. Pearl and Chas. P. Kane, for plaintiff in error. Wirt Herrick, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Ottie Scott, alias Otto Scott, plaintiff in error.
    Gen. No. 8,391.
    Heard in this court at the January term, 1930.
    Opinion filed June 11, 1930.
    Rehearing denied October 16, 1930.
    John F. Pearl and Chas. P. Kane, for plaintiff in error. Wirt Herrick, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    The People of the State of Illinois, defendant in error, v. Clayton Hotchkiss, plaintiff in error.
    Gen. No. 8,420.
    Heard in this court at the April term, 1930.
    Opinion filed June 11, 1930.
    Rehearing denied October 16, 1930.
    Homer English and M. A. Brennan, for plaintiff in error. Joseph W. DePew, State’s Attorney, and Edward Barry, Jr., Assistant State’s Attorney, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Asher Holzman et al., trading as Holzman Brothers, appellees, v. William S. Ehnie and Charles F. Ehnie, trading as W. S. Ehnie & Brother, appellants.
    Gen. No. 8,423.
    Heard in this court at the April term, 1930.
    Opinion filed June 11, 1930,
    Rehearing denied October 16, 1930,

      Barnabas F. Sears, for appellants. Wm. N. Hairgrove and Wilford H. Absher, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    May J. Way, administratrix with the will annexed of the estate of Virgil G. Way, deceased, appellant, v. George F. Way, appellee.
    Gen. No. 8,428.
    Heard in this court at the April term, 1930.
    Opinion filed June 11, 1930.
    Rehearing denied October 16, 1930.
    Claude M. Swanson and S. Ludlow, for appellant. F. M. Thompson and Little & Finfrock, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Thomas M. Pritchett, plaintiff in error, v. Niantic Carbon Coal Company et al., defendants in error.
    Gen. No. 8,418.
    Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    F. R. Wiley and H. H. Morey, for plaintiff in error. Le Forgee, Samuels & Miller, Carl N. Weilepp and MeDavid & Monroe, for defendants in error.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Oscar Nelson, as auditor, v. New Salem State Bank et al. Farmers State Bank of Pittsfield, Illinois, receiver under the crossbill, appellee, v. C. L. Dunham, appellant.
    Gen. No. 8,421.
    Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    L. T. Graham, for appellant. William and Barry Mumford, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Every M. Paget, appellee, v. Iliff-Bruff Chemical Company, appellant.
    Gen. No. 8,432.
    Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    Rehearing denied January 8, 1931.
    Dyer & Dyer, for appellant. I. Ray Carter and Chas. W. Fleming, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Patrick Allen and John W. Sheehan, appellees, v. Glens Falls Insurance Company of Glens Falls, New York, appellant.
    Gen. No. 8,413.
    Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    Brown, Hay & Stephens, for appellant. Gillespie, Burke • & Gillespie, for appellees; L. F. Gillespie and Hugh J. Dobbs, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Will County National Bank of Joliet, Illinois, as administrator of the estate of Charles M. Gatliff, deceased, appellee, v. Champaign County Mutual Relief Association, appellant.
    Gen. No. 8,431.
    Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    Campbell & Graham, for appellant. Busch & Harrington, for appellee; C. E. Tate, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Kelly Trail, trading as Trail Electric Company, appellee, v. Lena Watters Hall, appellant.
    Gen. No. 8,434.
    Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    John F. Pearl, for appellant. George J. Smith, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Per curiam.

text:
    Lucy S. Fritz et al., complainants, v. C. M. Bowcock et al., defendants. Lucy S. Fritz et al., appellants.
    Gen. No. 8,404.
    Heard in this court at the April term, 1930.
    Opinion filed October 29, 1930.
    Carey E. Barnes and Brown, Hay & Stephens, for appellants. Hoff & Hoff, Edward F. Irwin, Henry A. Converse and Clayton J. Barber, for appellees; Lawrence Hoff, of counsel.
   Per curiam.


author: Mr. Presiding Justice Barry

text:
    Fourth District.
    M. H. Zeigler, appellee, v. Eastern Automobile Insurance Underwriters, appellant.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Rehearing denied October 28, 1930.

      Roger E. Chapin and Williamson, Burroughs & Simpson, for appellant. White & Quindry and Roscoe Forth, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    W. E. Beck, appellee, v. American Railway Express Company, appellant.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Brown & Burnside, for appellant. F. M. Guinn, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    John A. Ingram, appellee, v. George A. Buehrer, appellant.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Williamson, Burroughs & Simpson and James L. Reed, for • appellant. T. A. O’Connor, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Hellrung Construction Company, appellee, v. Joseph J. Eckhard and Leeta V. Eckhard, his wife, appellants.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Wm. P. Boynton, for appellants. John F. McGinnis, Jr., for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Edgar D. Dodgson, plaintiff in error, v. W. J. Hillgamyer and Mrs. E. Hillgamyer, defendants in error.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Keefe, Bandy & Listeman, for plaintiff in error. Owen Dillon and R. E. Costello, for defendants in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Baker, J.

text:
    Second District
    —December Term, 1887.
    Nils Erickson v. Marcus R. Lyon.

      Replevin—Sale of Corn-Adverse Possession—Evidence—Agreement— Whether with Firm—Instruction.
    1. In an action of replevin to recover a crib of corn in the custody of a former owner, by whom it had been sold to a local grain dealer, the controversy being between the plaintiff ana a firm of commission merchants, both of whom claim the corn as purchasers from said grain dealer to apply on an indebtedness due from him, it is held: That the court properly declined to admit oral statements in regard to a written agreement between said grain dealer and commission merchants, bet improperly excluded the agreement itself; that the agreement was with the firm, although executed by one of its members in his own name; that it was admissible, even if executory, ia view of the other evidence in the case; that the corn in question came within the terms of the agreement as corn upon which money had been advanced; and that there was error in refusing an instruction touching the adverse possession of the corn when sold to the plaintiff.
    2. A sale of personal property, while in the adverse possession of a third person, is void.
    [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of Whitesides County; the Hon. J. V. Eustace, Judge, presiding.

      Messrs. 0. J. Johnson and Manaiian & Ward, for appellant.
    Messrs. Bennett & Green, for appellee.
   Baker, J.

This was replevin in the deti/net by Lyon against Erickson to recover a crib of corn. The pleas were non detinet, property in defendant, and property in Horine Brothers & Company. Issues were formed on the pleas and tried by a jury, who returned a verdict for the plaintiff; and the judgment was rendered in his favor for the property and for one cent damages and costs.

At the trial it was claimed hy the defense that one John G. Plumely, a dealer in live stock and grain in Whitesides County, was, prior to the 22d day of March, 1886, indebted to Horine Brothers & Company, who were in the live stock commission business at the Union Stock Yards in Cook County, in the sum of §13,520, for money loaned merely as an accommodation, and that said firm was also security for him for §8,000 borrowed from Foss, Strong & Company, which it afterward paid. That on the date stated, Horine Brothers & Company, being wholly unsecured, and Plumely being in embarrassed circumstances, and in immediate and pressing need of §1,000, with which to pay interest past due on a mortgage on his farm and also a note of $600 clue in bank, for which certain notes and bills receivable were held as collateral security, said Plumely and one C. II. Horine, a member of and acting on behalf of the firm of Horine Brothers & Company, entered into a written agreement of that date. The purport of the agreement, in part, was that Horine Brothers & Company would advance the §1,000 to pay the §600 note and the interest due on the mortgage, and that Plumely would assign to them his notes, bills receivable and book accounts, and would grant, bargain, sell and transfer to them all his interest in contracts or purchases of corn on which he had advanced money, and all his right, title and interest in and to the property named in them, to be held by Horine Brothers & Company, until said corn was marketed and sold, when the proceeds of such sale were to be applied to the payment of the §8,000 to Foss, Strong & Company, for which Horine Brothers & Company xvere sureties, ox- of a note or notes owing by Plumely to Horine Brothers & Company. It was further claimed by the defense, that the corn in controversy was then owned by Plumely and was a part of the corn mentioned in the agreement; and that Horine Brothers & Company advanced the §1,000 as promised. Further, that the crib of corn in question was on the farm of appellant Erickson, and had been bought from him and left in his custody and charge as bailee of Plumely, and was included in a corn contract signed by Erickson and dated February 27,1886; and that on the 30tli of Maxell, 1886, Plumely delivered to one of the members of the firm of Horine Brothers & Company said corn contract of February 27th, and authorized and requested him to mark on the crib, “John Gr. Plumely to Foss, Strong & Go.” and attach a number for the purpose „of delivery and as evidence of a change of title in the corn. That between 3 and 4 o’clock in the afternoon of the first day of April following, said member of the firm of Horine Brothers & Company went to the farm of Erickson, displayed to him the corn contract, informed him the Ann were the owners of the corn, marked the crib on two sides with a stencil and paint, and in large letters as follows: “ John Gr. Plumely to Foss, Strong & Co., Ho. 16,” and left the corn ias charge of appellant Erickson as the bailee of the Ax-m, he agreeing to hold it for them. It was also claimed that all this transpired prior to any transfer or delivery of the corn to Lyon, the appellee.

For the purposes of the present decision, the theory of the plaintiff in the replevin suit may be very briefly stated. Ilis contention was that the written agreement of March 22d was xiot evidence of a completed sale of the corn in question to Horine Brothers & Company, but was a mere executory contract; that the corn contract of February 27th was not assigned by Plumely to Horine Brothers & Company, or delivered to them, ox- placed in their hands, with his knowledge or consent, but obtained by them surreptitiously; that Plumely never authorized them to mark the corn crib or take possession of the corn, and that he never sold or transferred the corn to them. Further, that on the first day of April, 2886, Plmnely sold and transferred the corn to him, in consideration of some 8900 indebtedness of Plmnely for "which he, Lyon, was security and afterward paid; and that about 5 o’clock in the afternoon of said day Plumely went with him to the crib and delivered him possession of the corn, by taking a small quantity of the corn out of the crib and handing it to him, and he carrying it away.

It appears that the trial court excluded from the jury the testimony of C. H. Horine and M. F. Horine in regard to the agreement made with Plumely on the 22d of March in reference to a sale and transfer of corn and corn contracts, on the ground the agreement was afterward reduced to writing by the parties. The court also refused to permit the written agreement of that date to go to the jury, on the ground it did not tend to prove any sale of the corn in controversy to Horine Brothers & Company, and was therefore irrelevant. In our opinion the court properly declined to admit in evidence the oral statements of the witnesses, but erred in excluding the written contract. Ball v. Benjamin, 56 Ill. 105. The grounds urged in support of the ruling of the court are that the contract is not between Plumely and the firm of Horine Brothers & Company, hut between him and one O. H. Horine; that the agreement is only executory and not a transfer of the title to the corn; and that the contract does not purport to relate to any corn of which Plumely then was the absolute owner, like the Erickson corn, but only to corn contracts upon which money had been advanced. We think the reasons suggested do not justify the determination of the court. True the contract or memorandum of things agreed upon” is signed only by Plumely and by C. II. Horine, as certifying “the above memorandum is substantially correct,” and is not signed by the firm name; but it is evident from an examination of the whole agreement and all its provisions, that C. II. Horine, avIio was a member of the firm, was contracting for and on behalf of such firm, and that it was so understood and intended by the parties. Besides this, the memorandum expressly provides that the agreements, contracts or bills of sale should make Horine Brother & Company the purchasers direct of the corn mentioned therein, or that the sale should 3)e assigned and transferred to Horine Brothers & Company, and the agreement of Plumely therein is to grant, bargain, sell and transfer to Horine Brothers & Company his interest ira the contracts and purchases, and all his right, bills and interest in aitd to the property named in them, “to be held by said Horine Brothers & Company.”

Upon the second point made we may remark, that, whether the “memorandum” had the effect, of itself, to vest title in the firm, or was merely an executory contract, it was in either event plainly admissible evidence, tending to prove the issue of property in the firm. There was very great conflict in the testimony whether or not Plumely, on the 30th of March, delivered the Erickson corn contract to Horine Bz-others & Company, and authorized them to take possession of the corn covered by it, and mark the crib so as to show a transfer of property and title. This agreement of March 22d would have been very strong corroborative evidence to sustain the witnesses for appellant izi that behalf. The fact there was an antecedent agreement so to do, would add strength to the testimony that on March 30th the corn contract and corn were turned over to the firm.

In regard to the third point suggested, we think the terms of the memorandum are broad enough to include the Erickson corn. Plumely held a contract from Erickson for the corn, and had paid §350 on it; but the corn still remained on Erickson’s premises and in his crib, and had neither been shelled nor weighed, and it was stipulated in the contract that Erickson should, on notice, shell the com, and deliver it at the railroad station in Prophetstown. The transaction with Erickson was surely a contract or purchase of corn, upon which Plumely had advanced money; and, if so, he agreed on March 22d to grant, bargain, sell and transfer all his interest in the contract or purchase, and all his right, title and interest in and to the property to Horine Brothers & Company.

There is another error in the record. Appellant requested the court to instruct the jury that if they believed from the evidence “that at the time of the alleged sale of the corn in question by Plumely to Lyon, Horine Brothers & Company were in the actual adverse possession of such corn, claiming to be the owners of the same, then such sale to Lyon is void and of no effect.” The doctrine of this instruction seems to be the law of the State. It was so expressly decided in McGoon v. Ankeny, 11 Ill. 558, and in O’Keefe v. Kellogg, 15 Ill. 347. See, also, Young v. Ferguson, 1 Lit. (Ky.) 289; Gardner v. Adams, 12 Wend. 297, and Overton v. Williston, 31 Pa. St. 155. We are urged to announce a contrary rule, upon the ground the doctrine of the refused instruction is contrary to well established legal principles and against the weight of authority. In O’Keefe v. Kellogg the court of final resort in this State say that the decision in McGoon v. Ankeny was made upon satisfactory authority, and that they still adhere to it. However we might be inclined to hold were the question an open one, and whatever may be the decisions elsewhere, we must follow the law as it is held in this State, until the rule is authoritatively announced to be otherwise.

For the two errors indicated herein the judgment is reversed and the cause remanded.

Reversed cmd remanded.


author: Welch, P. J.

text:
    Leven W. Benson v. B. H. Morgan and Company.

      Gaming Contracts—Board of Trade—Options—Action on Note—Burden of Proof—Intention—Settlement—Practice.

    1. Where the maker of a promissory note seeks to avoid the same on the ground that the consideration was illegal, the burden of proof is upon him to show the fact by a clear preponderance of the evidence.
    2. It is the intention of the parties that gives character to a transaction on the Boáxd of Trade. If either party contracts in good faith, he is entitled to the be'nefit of his contract, whatever may have been the secret purpose or intentioisgf the other party

      8. An issue not presented by the pleadings in the trial court can not be considered by this conrt.
    4. It seem* that the giving of a note for a balance claimed to be due on account of the execution of a contract is a waiver of any claim of noncompliance with the terms of the contract.
    [Opinion filed January 19, 1888.]
    In error to the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. F. F. Cooke and J. L. Wells, for plaintiff in error.
    Messrs. George W. Thompson and T. L. McGjbr, for defendants in error.
   Welch, P. J.

This was an action of assumpsit brought by defendants in error against plaintiff in error upon a promissory note executed by plaintiff in error on the 7th day of May, 1884, for the sum of §1,961.71, payable to the order of the ^defendants in error one year after the date thereof, with interest at six per cent. Plaintiff in error pleaded the general issue and special pleas, alleging that the consideration of the note sued on was void, being balances and differences on alleged sales of grain and other merchandise on the Board of Trade in Chicago, Hew York and St. Louis, and that flie transactions for which the note was given were gaming contracts within the law, and void. Also the plea of set-off. Replications were filed tendering issues upon the pleas which were joined. Plaintiff in error withdrew the general issue. Hpon the trial the jury returned a verdict for the defendants in error, and the court, after overruling a motion by plaintiff in error for a new trial, gave judgment upon the verdict. This writ of error is prosecuted by the plaintiff in error from this judgment. Various errors are assigned. It is first insisted by the learned counsel for plaintiff in error that if the transactions for which the note was given were Iona fide a.nd lawful, then, he insists, there can be no recovery on the note sued on in this case, for the reason, as claimed, that the defendants in error did not comply with their contract in the sale of the lard, oats and corn. There was no such issue presented by the pleadings in the trial court. No issue can now be raised in this court that was not raised on the trial in the Circuit Court. But if such an issue had been properly presented, that the contract was not substantially complied with, he could not now avail himself of it. The giving of the note some two years after the close of the transaction was a waiver of any claim of non-compliance with the contract, and an admission on his part that the contract had been executed according to its terms.

It is further insisted by counsel for plaintiff in error, that the consideration of the note was illegal and void, representing mere optional deals and not l)ona fide transactions but gambling contracts within the law. In order to determine whether the transactions from which the consideration of the note sued on arose, fall within the statute, v e will have to refer to the statute and to the evidence. The statute declares “That whoever contracts to have or give to himself or another the option to sell or to buy at a future time any grain, * * * and all contracts made in violation of this section, shall he void.” Section 130, Criminal Code. The plaintiff in error states “ that he ordered the defendants in error to make the purchases for him, and that he received from the defendants in error hills showing the date of the purchase; that he never paid for the articles bought and never expected to pay for them; that he put up margins; did not know the amount he put up; it was not near enough to pay for what he ordered.” The evidence for the defendants in error shows that they were commission men doing business in the City of Peoria; that the plaintiff in error instructed them to buy for him lard, oats and corn on the Board of Trade at Chicago, New York and St. Louis for future delivery, and that they made the purchases, being charged to them, and they notifying plaintiff in error of the purchases and charging him with the purchase price upon their books; that the purchases were regular business transactions; the articles purchased were for actual delivery. That the plaintiff in error deposited some money with defendants in error for the purpose of securing them in their purchases for him, so that if the market would fluctuate, the money on hand, with the produce bought for future delivery, would secure them. The price of the articles purchased having declined, the money left by plaintiff in error not being sufficient to secure defendants in error, plaintiff in error was notified to deposit more money; failing to do so the produce was closed out and the corn, lard and oats not selling for enough to pay its contract price, the defendants in error paid the money to fulfill the contracts of purchase. That the note in suit was given some two years after their transactions and was given on settlement for money advanced by defendants in error for plaintiff in error on these contracts and for recoverable commissions. We do not deem it necessary to notice the evidence of Cook of a transaction which he states he and plaintiff in error had with defendants in error prior to the transactions of pflaintiff in error with the defendants in error. We do not consider the evidence relevant in this case. Under the issues in this case the burden of proof was upon plaintiff in error to show the consideration of the note illegal, and he ought, in a case like this, to make this proof by a preponderance of the evidence. This, we hold, he has not done. 79 Ill. 352.

It is further insisted by counsel for plaintiff in error, that the court erred in giving the 6tli, 7th and 8th instructions for defendants in error. The objection to the 6th, that it is not based on the evidence, we do not think well taken. The evidence shows that letters and telegrams were sent by defendants in error to plaintiff in error, notifying him to put up more money. The 7th and 8th instructions are in conformity with the rule announced by Chief Justice Scott in Pixley v. Boynton, 79 Ill. 351. “ The intention of the parties gives character to the transaction; and if either party contracts in good faith, he is entitled to the benefit of his contract, no matter what may have been the secret purpose or intention of the other party.”

On a careful consideration of this case we are satisfied that substantial justice has been done.

Judgment affirmed.


author: Per Curiam.

text:
    Martin Dunn et al. v. Alonzo D. Wilkinson.

      Judgments—Injunction—Dissolution—Damages—Sec. 8, Chap. 69, Starr <£• C. III. Stat.

    Upon the dissolution of an injunction to restrain the collection of a judgment in whole or in' part, Sec. 8, Chap. 69, Starr & C. 111. Stat., requires the assessment of damages in some amount, within the limit of ten per cent, of the judgment or part so reduced.
    [Opinion filed January 19, 1888.]
    Appeal from, the Circuit’Court of Ogle County; the lion. John Y. Eustace, Judge, presiding.
    Messrs. D. W. Bastee and J. C. Seystee, for appellants.
    No brief filed for appellee.
   Per Curiam.

The appellee filed his bill in chancery to enjoin a judgment against him upon a judgment note in favor of the appellant. The bill alleged that the note on which the judgment was rendered was given for the purchase of a stock of drugs, etc., by the appellee from the appellant. That there was fraud in the sale, and also a conversion of collaterals placed in the hands of 'the appellant by the appellee. The bill prayed that the damages appellee had sustained by reason of such fraud in the sa^ and the conversion of the collaterals might be ascertained and set off against said judgment, and that the Sheriff be perpetually enjoined from collecting the execution on said judgment.

The appellant filed his answer, denying all fraud in the sale, and denying that he converted the securities, and asks that on hearing the injunction be dissolved and the bill dismissed, etc.

The Sheriff answers, disclaiming any interest in the matter, except as Sheriff, and prays that he may be dismissed with cost. ¡Replication filed. Referred to master to take proof and report. Master reported evidence, and cause re-referred to him to report findings of law and fact. Master’s report of findings, exceptions thereto by appellant and appellee.

Motion to dissolve injunction and dismiss bill; cause heard on bill, answer, replication and master’s report of evidence, and findings of exceptions thereto. Decree dismissing bill and dissolving injunction for want of equity, at complainant’s cost, and providing that, as to suggestion of damages heretofore filed on account of dissolution of injunction, said cause be continued.

The suggestion of damages was on account of money expended for solicitor’s fees and other damages. The court on the hearing of the question on the suggestion of damages, entered an order refusing to allow any damages. From this order the defendant Dunn appealed, and has filed abstracts and briefs, as required by the rules of this court.

Under Sec. 8, Chap. 69, Starr & C. Ill. Stat, it is provided that where an injunction to restrain the collection of a judgment is “dissolved in whole or in part, the complainant shall pay, exclusive of legal interest and costs, such damages as the court shall award, not exceeding ten per centum on such part as may be released from the injunction.”

It will be seen that this statute requires damages to be assessed in some amount not exceeding ten per cent. This may be allowed without any suggestion of damages being filed, and even without evidence. Forth v. Town of Xenia, 51 Ill. 210. It would not be improper, however, for the court to hear evidence as to the expense the respondent had been put to in his efforts to procure a dissolution of the injunction^ including attorney’s fees, in order to ascertain what would be a reasonable allowance for damages inside the limit of ten per cent, provided for in the statute.

Eo more than ten per cent, on the amount of the judgment released from the injunction can be allowed. Camp v. Bryan, 84 Ill. 250. It seems from the evidence in this case that it was necessary for appellant to employ counsel to defend against the injunction suit in order to procure a dissolution. In this case, however,' the suggestion of damages was broad enough to cover all claim for damages. The appellee in this case has not favored us with any brief, and we might, for that reason, have reversed the judgment for non-compliance with the rule of this court; but we have preferred to decide the case on its merits, so that the questions involved may be. settled.

The judgment, for the error of the court in not assessing damages under the statute, is reversed and the cause remanded.

Reversed and remanded.


text:
    Singer, Nimick & Company, Limited, v. H. W. Carpenter, Executor.

      Administration—Partnership—Corpot'ation as Successor of—Agreements—Bights of Creditors.

    Upon a petition to have certain funds in the hands of an executor, which are alleged to have been derived from the assets of a firm of which the deceased was a member, distributed among the creditors of such firm, it is held.• That prior to the death of the deceased there had been such a disposition of the property in question by agreements between the partners with a third person and with a corporation which succeeded said firm, as to defeat the claim of the petitioners; and .that the partnership creditors can not complain, the partners having consented to the fulfillment of their agreements.
    [Opinion filed January 19, 1888.]
    Appeal from the Circuit Court of Winnebago County; the Hon. William Brown, J udge, presiding.
    Hr. William Lathrop, for appellant.
    Hr. William Marshall, for appellee.
   Welch, P. J.

The appellant, as a creditor of the firm of Briggs, Enoch & Company, of which firm Abraham I, Enoch was a member at the time of his death, filed his petition in the County Court of Winnebago County against the appellee' as the executor of the last will and testament of Abraham I. Enoch, deceased, asking that certain funds then in the hands of the executor and alleged to have been derived from assets of the firm of Briggs, Enoch & Company after the death qf said Enoch should be paid and distributed to the creditors of the firm of Briggs, Enoch & Company and not to the individual creditors of said Enoch. Appellee filed his answer, denying that he had any funds in his hands belonging to the firm of Briggs, Enoch & Company. The County Court, upon the hearing, dismissed the petition, and appeal ■was taken to the Circuit Court. Upon the hearing in the Circuit Court, the court found that the moneys in controversy belonged to the individual estate of said Enoch, deceased, and should be distributed as such, and dismissed the petition, and appellant now brings the cause by appeal to this court.

The firm of Briggs, Enoch & Company had been engaged in the manufacture of agricultural implements, at Bockford, Illinois, for many years prior to the death of Abraham I. Enoch, which took place on April 30, 1883. The indebtedness to the appellant had accrued for iron and steel, sold the firm in the course of its business On Bovember 10, 1882, the members of the firm of Briggs, Enoch & Company commenced the formation of a corporation, designed to take the place and business of the old firm, and the h div dual members subscribed for stock, to be paid for entirely by the transfer of property and assets of the firm of Briggs, Enoch & Company. The amount of stock agreed to be subscribed was, that said Enoch should subscribe for §20,000, and the said O. & G. Briggs should, between them, subscribe for §20,000. On .January 3, 1883, a contract was made between Duncan II. Ferguson and Abraham I. Enoch as follows:

“Articles of agreement made and entered into this third day of January in the year of our Lord one thousand eight hundred and eighty-three, between Duncan H. Ferguson, of the City of Eockford in the State of Illinois, party of the first part, and Abraham I. Enoch of said City of Eockford, party of the second part, witnesseth: That the said party of the first part hereby agrees to convey to the said party of the second part by good and sufficient deed of warranty free from all incumbrances whatsoever, an undivided one-half interest in and to the two brick blocks, situated in West Waterloo in the State of Iowa, and known as the Woodruff Block and the Post Office Block, respectively, located on Mill Square in the said City of Waterloo, Iowa, for a consideration of seventeen thousand five hundred .dollars (§17,500), the same to be paid by said party of the second part out of the proceeds of the sale of his interest in the real estate and water-power and machinery now owned by the firm of Briggs, Enoch & Company in said City of Eockford, to the new corporation known as the Briggs & Enoch Manufacturing Company of Eockford, Illinois, providing such sale-is made within six months from the date hereof. It is further agreed and understood between the said parties, that said party of the first part shall cake of the stock of the Briggs & Enoch Manufacturing Company of Eockford, Illinois, before mentioned, at least the sum of seventeen thousand five hundred dollars (§17,500) and shall deliver the said deed of property in Waterloo, Iowa, herein before mentioned, when, or as soon as said Briggs & Enoch Manufacturing Company, of Eockford, Illinois, is fully and legally authorized to do business as such corporation.

“It is further agreed and understood between the said parties, that the covenants and agreements herein contained shall extend to, and be obligatory upon the heirs, executors, administrators and assigns of the respective parties, and that in case said Briggs & Enoch Manufacturing Company of Eockford, Illinois, is not so organized and prepared to do business as such corporation within six months from this date, then these agreements are to be void and of none effect.

“In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.

“(Attest:)
“ J. Prynne Jones.
Duncan H. Fergutson, [Seal.]
Abraham I. Exooh. [Seal.]”

This agreement between Ferguson and Enoch was well known to the two Briggs; they approved and were anxious to have the agreement entered into. The Briggs & Enoch Manufacturing Company was fully and legally organized on the 5th day of April, 1883. In the organization of said corporation, Enoch subscribed for §17,500 of the stock, Chester 0. Briggs §12,000, George §8,000. The stock of the corporation was §100,000, and the balance of said stock was subscribed by persons not members of the said firm of Briggs, Enoch & Company, of whom Ferguson was one of the subscribers for stock. The real estate of said firm of Briggs, En >cli & Company stood in the name of C. O. Briggs and Abraham I. Enoch. On April 10, 1853, a deed was prepared from G. C. Briggs and wife and Abraham I. Enoch and wife to Briggs & Enoch Manufacturing Com pan jr, of the lands, water-power and machinery owned by said co-partnership; said deed was signed and acknowledged on the 10th day of April and delivered to Ferguson, a director in said corporation, by Enoch and wife, and was, on the 11th of May, signed and acknowledged by Briggs and wife, consideration §10,000. There was placed to the credit of Enoch §20,000 on the books of the corporation and to Briggs of §20,000, the same being in consideration of said conveyance. On May 29, 1883, the appellee, as executor of Abraham I. Enoch and Catherine J. Enoch, who was at that time executrix with appellee, applied to the County Court by petition for leave to execute and carry out said contract with Ferguson.

The court ordered and decreed that executors, etc., of Enoch’s estate be, and are authorized and empowered to perform and carry out said contract with Ferguson, and also the contract of subscription for stock with Briggs & Enoch Manufacturing Company. That they are authorized, empowered and directed to receive forthwith from said corporation paid-up stock to the amount of §10,000, and balance of stock subscribed for by Enoch, §7,500, whenever the same can be paid for out of assets of said estate applicable to that purpose. To pay for the same out of said assets, and assign to said Ferguson of said paid-up stock seventy-five shares, and give him an order on said company for §10,000. The balance of credit to said estate remaining on books of said corporation after issuance of said stock to the amount of $10,000. The said assignment of stock and order on said company to be full performance on part of said executors of said contract. Also to receive from said Ferguson a deed of Waterloo property according to terms and conditions of the written contract.

Ferguson, upon a compliance by the executors with the order of the County Court, executed to them a deed to the Waterloo property, in Iowa. This exhausted the $20,000 credit on the books of Briggs & Enoch Manufacturing Company, except $2,500. For this the corporation issued to the executors twenty-five shares of stock. Mrs. Enoch having-resigned her position as executrix, and renounced the will, appellee, as executor, sold the- Iowa property for $6,000, and the twenty-five shares of stock for $1,676.88, making the sum $7,676.88, which he has in hands for distribution. It is claimed by counsel for appellant, that at the death of Mr. Enoch, on April 30, 1883, no part of the firm property of Briggs, Enoch & Company had been, in fact, sold or conveyed to the corporation, and that the title to all and every part of the firm property then remained in the firm of Briggs, Enoch & Company, and as such was chargeable with the payment of the co-partnership debts. That the co-partnership was then wholly insolvent, and that the executors of Enoch, deceased, could not withdraw any part or portion of the co-partnership assets and apply them to the payment of Mr. Enoch’s individual debts as against the rights and equities of the firm creditors, and that the Waterloo property, and the twenty-five shares of stock, were paid for directly from firm assets after the death of Mr. Enoch; and that the executor is accountable therefor to appellant, and all the other of the creditors of the firm of Briggs, Enoch & Company, and that the money proceeds of such property now in the hands of the executor should be paid to appellants, or to them and the other creditors of Briggs, Enoch & Company, and not to the individual creditors of Enoch.

The averments of the petition, records and evidence, show the facts as above stated. We are of the opinion, in view of this evidence, that it is not vital to the determination of this case, as to where the legal title to this property was at the time of Enoch’s death. It is clear from the evidence that prior to his death there had been such a disposition made of it under agreements between the parties to the firm of Briggs, Enoch & Company with each other, with Ferguson, and the corporation of Briggs & Enoch Manufacturing Company, as to defeat any right or claim of the petitioners. There has been nothing done that was not in conformity to an agreement made between the partners, or an agreement made with their consent, prior to the death of Enoch. The surviving partners in this case have not sought, even if it should be conceded that they had the right, to defeat the execution of their agreements. The equity of the creditor is of a dependent and subordinate character, and is to be enforced through the medium of the equities of the partners. The partners consenting to the fulfillment of their contract, manifestly the partnership creditor has no right to complain. Williamson v. Adams, 16 Ill. App. 568, and authorities therein cited; Allen v. The Center Valley Co., 21 Conn. 130; Sigler v. Knox County Bank, 8 Ohio, 516. We are of the opinion, after a careful consideration of this case, that there is no error of which petitioners can complain. The order and decree of the Circuit Court is affirmed.

' Affirmed.


author: Wbloh, P. J.

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    John M. Reticker v. Katzenstein & Wachtel.

      Sales—Fraud—Insolvency—Rescission—Replevin—Instructions.

    Undisclosed insolvency on the part of the vendee is not such evidence of fraud as entitles the vendor to rescind the sale and maintain an action of replevin to recover goods sold.

      [Opinion filed January 19, 1888.]
    Appeal from the Circuit Court of Rock Island County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Pleasants & Hurst and William Jackson, for appellant.
    Messrs. W. II. Gest and P. O’Mara, for appellees,
   Wbloh, P. J.

This was suit in replevin brought by the appellees to recover possession of certain merchant tailoring goods, which had been seized by appellant to satisfy certain judgments confessed by one Williard G. ¡Nickerson in favor of L. S. McCabe and William Meyers. Appellees sought to avoid the salo of these goods to ¡Nickerson and recover possession of them on the ground of alleged fraud and deception practiced by him in inducing the sale.

Pleas: 1st. Won cepit/ 2d. Property in stranger; 3d and 4th. Justification by defendant as Sheriff. Replications: 1st. To second ¡dea, denying property in stranger; 2d. To third plea, denying execution; 3d. To third plea, alleging property in plaintiffs; 4th. To third plea, denying judgment; 5th. To fourth plea, denying execution; 6tli. To fourth plea, alleging property in plaintiffs; 7th. To fourth plea,' denying judgment.

Trial, verdict finding property in the appellees, and assessing damages at one cent. Motion for new trial; motion overruled. Judgment on verdict. From which judgment this anpeal is taken. Various errors are assigned.

In the view we take of the case, we only deem it necessary to notice the third error assigned—the giving of appellees’ 6th and 7th instructions. These instructions are as follows:

6th. “If the jury believe, from the evidence, that the witness, at the time of his purchase of the goods in controversy from the plaintiffs, was insolvent and unable to pay his liabilities then existing, or, by the use of ordinary diligence in the conduct of his business might have known that he was insolvent, and knowingly concealed the fact from the plaintiffs, and thereby the plaintiffs were induced to make the sale of goods, then this was such fraud as to warrant the plaintiffs to rescind the sale and recover the goods. Fraud may be committed by knowingly suppressing the truth from one who is not informed, as well as by stating what is absolutely untrue.”

7th., “You are instructed, as a matter of law, that if one obtains goods by way of purchase by means of false representations of facts, or by any deception, or with the design not to pay for them, or knowing himself at the time to be insolvent and unable to pay for them, or who, by the use of ordinary diligence, might have known himself tobe insolvent and unable to pay for them, and the seller is, by any such means, deceived into parting with his goods, no title passes to the buyer, and the seller has the right to reclaim his good-:. And if you believe, from the evidence, that the sale in this case was induced by any such- means you must find for the plaintiffs.”

These instructions are clearly erroneous, and are in conflict with the rule uniformly announced by our Supreme Court. The rule was first announced in case of Henshaw v. Bryant, 4 Scam. 97, 108. The court through Catón, Justice, declares the law as follows: “Should we establish a rule that would declare all sales void where the purchaser does not disclose to the seller his real circumstances, many contracts, made with the most upright intentions, would be annulled for fraud. While a man is really struggling against adversity with an honest intent to retrieve his fortunes, the law will not declare him incapable of purchasing goods on a credit, although he does not disclose to the vendor the extent of his embarrassments. In such a case there is wanting that essential ingredient in fraud, a design never to pay.” The rule here announced has been followed by the Supreme Court in Patton v. Campbell, 70 Ill, 72; and by the Appellate Court in Morril v. Corbin, 13 Ill. App. 81; Catlin v. Warren, 16 Ill. App. 418; Preston v. Spaulding, 18 Ill. App. 341. These instruction's informed the jury, that if, at the time Hickerson made the purchase of the goods in controversy, he knew himseif to be insolvent and nnable to pay for them, or if he, by the use of ordinary diligence, might have known himself to be insolvent and unable to pay for them, and knowingly concealed the fact from the-appellants, and thereby they were induced to make the sale, then this was such fraud as to warrant a rescission of the contract of sale and a recovery of the goods; that the sale was fraudulent even if the purchaser did not, at the time of the purchase, know he was insolvent; yet if he, by ordinary diligence, could have known that he was insolvent and concealed the fact, that was sufficient.

The 7th instruction recites various means that would render the sale fraudulent and the jury are told that if they believe from the evidence that the sale in this case was induced by any such means they must find for the appellees. The undisclosed insolvency of Nickerson, known to him, or which he by ordinary diligence could have known at the time of the purchase, was stated as one of the grounds that would render the sale void.

The 6th and 7th instructions.in this respect are alike. We hold under the rule announced by the Supreme Court, that it is not enough to maintain fraud that the vendee is insolvent and.knows himself to be so at the time of the purchase and conceals the fact from the seller, and that he has no reasonable expectations that he can pay the debt.

The only intent that renders the sale fraudulent'is a positive and predetermined intention, entertained and acted upon at the time of going through the forms of an apparent sale, never to pay for the goods. For the error herein indicated the judg. ment is reversed and cause remanded.

Reversed and remanded.


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    George H. McDonald, Administrator, Impl'd, etc., v. Eugene Clifford.

      Replevin—Chattel Mortgage—Distress Warrant—Priority of Liens— Question of Fact.

    In an action of replevin involving the priority of liens on certain furniture based oa the -question whether the lien of a chattel mortgage was waived by surrender of possession, this court declines to interfere with the finding of the court below in favor of the mortgagee, there being a sharp conflict of evidence.
    [Opinion filed January 19, 1888.]
    In error to the Circuit Court of Kane County; the Hon. CL W. Upton, Judge, presiding.
    Mr. Frank Crosby, for plaintiff in error.
    Messrs. Botsfokd & Wayne, for defendant in error.
   Welch, P. J.

This was an action of replevin brought by the defendant in error against Stephen Lasher, plaintiff in error, intestate, Leonard Lasher and H. S. Carlisle, to recover certain furniture conveyed by a chattel mortgage executed by Leonard Lasher, on January 27, 1880, to the defendant in error, to ^secure the payment of a promissory note of said Lasher -of that date for $1,700, payable two years from date, with interest at eight per cent., payable monthly. Separate pleas were filed. Stephen Lasher, plaintiff in error, intestate, filing pleas of non cepit, non detinet, property in himself, justification and talcing by himself as distress for $1,200 rent in arrear from Leonard Lasher, mortgagor. Replication to pleas, jury waived, and trial by the court. Judgment, finding the right of property in the defendant in error, and for costs. From which judgment this writ of error is prosecuted. The evidence shows that on or about the 2d of August, 1881, one A. W. Schoonhoven, as Constable, had in his hands an execution for some §20 in favor of ¡M¡. T. Lynch, against Leonard Lasher; that on the 3d day of August he proceeded to execute the writ by levying upon the mortgaged furniture. Defendant in error then placed in the hands of this Schoonhoven this chattel mortgage with directions to take possession of this property under this mortgage; the mortgage containing an insecurity clause, entitling the mortgagee to take possession and soil upon ten days’ notice, before the maturing of the note. On August 3d, Stephen Lasher, plaintiff in error, intestate, issued a distress warrant for §1,200 rent, claimed to he due him from Leonard Lasher July 5, 1881. On the 3d day of August an arrangement was made between E. J. Joslyn, as attorney for Stephen Lasher, and the defendant in error, that the distress warrant should be put into the hands of Schoonhoven, and that he should hold this property and become custodian of it, 1st, for the mortgagee, 2d, for the execution creditor, 3d, for the landlord. On the 6th of August there was another arrangement or agreement made about the surrender of the property in controversy. This arrangement or agreement presents the only controverted question in this case. It was made by J. Crosby for Stephen Lasher and Leonard Lasher, with the defendant in error, .and what the arrangement or agreement was, is to be determined from their testimony. Defendant in error states that his agreement with Crosby was “ that Leonard Lasher should pay off the execution;” that he was to he permitted to run the house and pay part of the mortgage debt weekly; that the distress warrant should not interfere. It was agreed that Leonard Laslier should be let alone so he could pay under the agreement, and on that consideration I made the following written order:

“Elgin, August 6, 1881.
“ To LL W. Schoonhoven, Esq. :
“You will surrender possession of Waverly House furniture, held by you as custodian, under chattel mortgage to me, Leonard Lasher, mortgagor.
“Eugene Clifford, ¡Mortgagee.”

Crosby states that he £t had a talk with Clifford about fixing matters up, based upon paying Lynch judgment and mortgage and enabling Leonard Lasher to go on with the business; no recollection of distress warrant being mentioned in this talk; made arrangement of August 6th without reference to distress warrant; was trying to get the property for Leonard Lasher to pay this indebtedness, acting as his attorney and in his interest, but made no arrangement about distress warrant.5’

The Ljmch execution was paid, and $100 paid on the mortgage by Leonard Lasher. The order signed by Clifford was given to Crosby. Schoonhoven, the bailiff, states that u after this arrangement I saw Crosby, and something was said about turning the property over to Leonard Lasher; Crosby said it would do as well to turn it over to him, as he was Leonard’s attorney; about § p. ai. the same day Crosby said I should go back and hold it on landlord’s warrant. That night I saw Clifford. Oe Monday he told me to hold property on mortgage; arrangement was made on Saturday, and Monday after Clifford told me to hold property under mortgage; held until August 10th under mortgage and landlord’s warrant; was ordered by Clifford to move property out under mortgage when Lasher, Joslyn and crowd put me out and took possession.” Tiiat he did not deliver the property to Lasher. In view of the evidence in this ease was it error in the court to refuse to hold, as a proposition of law:

66 That plaintiff’s mortgagee, having surrendered possession of the mortgaged property after having once taken it, to the mortgagor, said property became thereupon subject to the Sien of the distress warrant of the landlord, Stephen Lasher?” The mortgage was a prior lien on this furniture. Was anything done by the defendant in error by which this Hen was postponed or lost? Did the agreement made with Crosby by defendant in error operate as a surrender of this property by him to Lasher and was it a waiver of his Hen thereon? The only witnesses to this agreement were Crosby and the defendant in error. The conflict between their testimony as to the agreement is not reconcilable. One or the other of them must have been mistaken in his testimony. Lennon v. Goodspeed, 89 Ill. 438.

Under snch circumstances it became the duty of the Judge sitting in this case as a jury to properly weigh the evidence in connection with all the facts and circumstances surrounding the transaction, and from all the facts determine who told the truth. The Judge who heard this ease had many facilities for arriving at a correct conclusion which this court does not possess. He had the witnesses before him, heard the story of each on the stand and could observe their manner of testifying. The Circuit Court has many tests for detecting falsehood and ascertaining the truth, which an appellate court can not have when the evidence is submitted on paper.” The Judge who tried this case by his refusal of the proposition of law asked by plaintiff in error, holds that the defendant in error did not surrender the property or lose his prior lien. We adopt the language of Supreme Court in ease supra in this case.

“We perceive no ground upon which we can reverse the judgment in this case without a clear departure from a long line of decisions, holding that when a question of fact only is involved and the evidence is conflicting, this court will not interfere unless the verdi'ct is the-result of prejudice or passion, which is not the case here.” The authorities referred to by plaintiff in error announce sound and correct principles of law as to the rights of the creditors when the mortgagee permits the mortgagor to remain in possession after default in payment, and when the mortgagee, after taking possession, surrenders the property to the mortgagor. These authorities, we hold, have no application to the facts in this case. We are of the opinion that there was no error in refusing the proposition of law asked by plaintiff in error, and that the evidence fully sustains the finding and judgment. The judgment is affirmed.

Judgment affirmed.


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    Lysander Hord v. The Village of Montgomery.

      Municipal Corporations—Acceptance of Street—Mill-Raee—Bridge—> Covenant Running with the Land.

    1. Where a municipal corporation accepts a street burdened with a mill, race over which there is a bridge, it assumes the duty of keeping the bridge in repair.
    2. In the case presented, the evidence does not show a covenant running with the land, requiring the owners of the mill to keep the bridge íd repair.
    [Opinion filed January 19, 1888.]
    Appeal from the Circuit Court of Kane County; the lion. Isaac G. Wilson, Judge, presiding. •
    Messrs. A. J. Hopkins, U. J. Aldrich and F, H. Thatcher, for appellant.
    Mr. Charles Wheaton, for appellee.
   Welch, P. J.

This was an action of assumpsit brought by the appellee against the appellant and Lucas Broadhcad. The declaration contains only the common counts—plea of general issue filed by appellant, Broadhcad not being served with process, and stipulation that all defenses may be put in thereunder as fully and completely as if specially pleaded. Jury waived and issues submitted to the court. The court found the issues for the appellee and gave judgment, from which judgment this appeal is taken. Various errors are assigned. The appellant and one Lucas Broadhcad are the owners of the mill, mill-dam and certain real estate in the Village of Montgomery. One of the streets of the village, Mill Street, crosses the race leading from the dam to appellant’s mill. Across this race is a bridge in the center of the street. This race bridge was originally built by Vine B. Watkins and the Greys —they, or some of them, at that time being the owners of the mill property. This bridge was kept in repair by the Greys until the}'- sold the property to Alexander in 1863. And from that time it was kept in repair a portion of the time by Alexander, but almost entirely by subscription until 1885, when the repairs by appellee, for which this suit is brought, were made. Appellant and Broadliead became the owners of a portion of this mill property in 1878, and the balance in 1880. Counsel for appellant maintains that there is no liability resting upon appellant, under the proof in this record, to maintain the race bridge. In 1852 or 1853, Daniel Grey, who was at that time the owner of the mill property and also the owner of the property where the Village of Montgomery's situated, dug the race across which this bridge is now located. He also laid out and platted the Village of Montgomery in October, 1853. The plat describes Mill Street as crossing this race. When he platted the Village of Montgomery, the village had not been incorporated and was not incorporated until February, 1858. In 1858 Vine Watkins, Ralph and D. W. Grey, who were then the owners of the mill property, made an arrangement, as stated by Watkins, with the • Road Com. missioners to build a bridge across the race and maintain the same as long as they were the owners of the property, upon the condition that the town would build a bridge across the race at that point, being a,short distance north of the mill. The town built the bridge, as per agreement, and they built the bridge across the race. This agreement was not reduced to writing. When the property was sold to Alexander in 1863, Watkins told William & Charles Waller, who were the agents of Alexander and who looked after the property, “ that the race bridge belonged to the property; that it was built by Grey and Watkins, and that we made an arrangement with the Road Commissioners that on condition they build the main bridge where it was, we were to build the race bridge and keep it in repair, and had always clone so.” There is some evidence tending to show that appellant was in the employ of Alexander in 1876 or 1877, and that he knew of some repairs having been made by Alexander on the race bridge; appellant denies all knowledge of any payments made by Alexander, but states that he knows of his refusal so to do. He denies all knowledge of any arrangement or agreement as to the repairs of the bridge. The deeds to appellant and Broadhead show that the same is bounded on the north as to the mill property, by Hill Street, and on the south, as to the other of his property, including dam, sash factory, etc., by Hill Street, It is conceded by counsel for appellee that the fee to the streets of the Village of Montgomery, as platted by Grey, remained in abeyance and did not vest until the village was incorporated. This being conceded, the village, in accepting the street, took it in the condition it was, burdened with the race crossing it, and the village, by accepting it, also assumed the duty of putting and keeping it in repair. There is no question that the village accepted the street. Work is shown to have been done upon it by the village. This is not like the case of President and Trustees of West Bend v. Mann, 59 Wis. 60. There the owner of the land over which the highway passed, cut a race-way across the road. It was held it was his duty to bridge it over and at the same time it was the duty of the village to keep it bridged for the safety of the public In that case the race was cut through a highway already established ; in case at bar, the race was there prior to any street, and when the street was platted it showed the existence of the race, and when accepted by the village the race was still there.

Counsel for appellee insist, that, under the agreement by Watkins, etc., with the Boad Commissioners, appellant is liable. In the view we take of the evidence under the law, there was no such an agreement, even if known by the appellant, as would create a liability on his part to keep the bridge in repair, and the evidence fails to show knowledge upon his part of any agreement. There was nothing of record to apprise him that the property was burdened with a covenant to maintain the race bridge in question. His deeds show that his property only extends to Mill Street. He knew that the bridge had often been repaired by subscription prior to his purchase. In view of what we have said, the court erred in refusing the 8th proposition of law, as requested by counsel for appellant; 8th: “the court holds, as a matter of law, that under the proofs in this case, there is no covenant running with the land, or obligation resting upon defendant to keep in repair the race bridge in question.” This proposition should have been allowed, and judgment entered for the appellant. There are various other errors assigned, but we do not deem it necessary to refer to them. For the error herein indicated, the judgment is reversed and cause remanded.

Reversed and remanded.


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    George Pope v. The People of the State of Illinois.

      Dram Shop's—Nuisance—Indictment—Bnproper Verdict.

    Upon an indictment charging the defendant with keeping a common nuisance, under Sec. 7 of the Dram Shop Act, there being four counts and' but one offense, it is held: That the latter part of the verdict, finding the defendant herein guilty upon the “ first, second, third and fourth counts of the indictment, ” was unauthorized by the law and unwarranted by the evidence.
    [Opinion filed January 19, 1888.]
    Appeal from the Circuit Court of Kendall County; the Hon. C. W. Upton, Judge, presiding.
    Messrs. Fowleb Brothers, for appellant.
    Mr. John Fitzgerald, State’s Attorney, for appellee.
   Welch, P. J.

The indictment in this case charged plaintiff in error with keeping a common nuisance, under the 7th section of the Dram Shop Act. The indictment contained four counts. The first count describes the premises and charges that on the first day of January, 1888, and on divers other days and times between said day and the day of the finding of the indictment, the jfiaintifE in error not having a license to keep a drain shop, intoxicating liquors unlawfully did then and there sell to be drunk on the premises when so sold. The second count charged that on the 10th of January, 1887, and on divers other days and times from said date to the day of finding the indictment, the plaintiff in error not having a license to keep a dram shop, intoxicating liquors unlawfully did then and there sell to he drunk iqion the premises adjacent thereto. The third count describes the location of the premises as near unto divers public roads, being the common highways, and also near unto the dwelling houses of divers citizens, etc., and charges that the plaintiff in error, on the 1st day of January, 1886, and on divers other days and times between that day and the day of finding the indictment, not having a license to keep a dram shop, intoxicating liquors unlawfully did then and there sell to be drunk upon the premises where so sold. The fourth count describes the location of the premises as near unto divers public roads, and also near unto the dwelling houses of divers citizens, and charges tiiat the plaintiff in error, on the 1st day of January, 1886, and continuing from said day to the day of finding the indictment, not having a license to keep a dram shop, intoxicating, liquors did then and there sell to be drunk upon the premises where so sold, and in and upon an adjacent room, building, yard and place of public resort. Motion to quash indictment. Motion overruled. Plea notguilty. Trial and verdict. “"We the jury, find the defendant guilty of keeping a common nuisance, as charged in the indictment. And we find him guilty upon the first, second, third and fourth counts of the indictment.” Motion for a new trial, and in arrest of judgment. Motion oven-uled. Judgment on verdict imposing a fine of $50 upon each count, and committing the defendant to the county jail for fifty days, and that he stand committed until fine and costs are paid. From which judgment this writ of error is prosecuted. Various errors are assigned. The verdict and judgment is clearly erroneous. The latter part of the verdict, “and we find him guilty upon the first, second, third and fourth counts of the indictment,” was unauthorized by the law and unwarranted by the evidence. The indictment, although containing four counts, charged but one offense.

The separate counts were but one offense. The separate counts were but the statement of the offense, stated as having been committed in a different way, and not a statement of separate and distinct offenses. The sales were all made in the same premises, and during the time charged in first count. The place where the liquor was to be drunk was stated differently. We should not have been inclined to disturb the verdict if it had not embraced this latter finding.

The motion for a new trial should have been allowed. For the error in overruling said motion and entering judgment, the judgment is reversed and cause remanded for a trial de novo.

Reversed and remanded.


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    Mary Jacoby v. George H. Scougale.

      Mechanic's Lien—Conflict of Evidence.
    Upon a review of the evidence, which was conflicting, this court declines to interfere with a decree allowing a mechanic’s lien.
    [Opinion filed January 19, 1888.]
    Appeal from the Circuit Court of Woodford County; the Hon. FT. W. Greene, Judge, presiding.
    Messrs. Blades & Neville, for appellant
    Messrs. Meek & Radford, for appellee.
   Welch, P. J.

This was a petition for mechanic’s lien, brought by the appellee against the appellant. The petition alleges that a verbal contract was made by the appellee with the appellant to do certain repairing on dwelling house of appellant, and to furnish all the material for said repairs. The price to.be paid for said work and material by the appellant was §550. The answer denies that there was a verbal contract, but alleges there was a written contract or agreement that the work was to be done for $414, and alleges that the work has not been done according to agreement.

Replication; decree for appellee for the sum of $532.25; from which decree this appeal is taken. The evidence in this case is conflicting as to the contract and the manner in which the work was done. The appellees state “ that about the middle of August, 1886, Mrs. Jacoby told me she had a house she wanted repaired; I told her that was in my line, and she asked me to look' at the house and figure on the cost; I did so, and it amounted to $414. There was a verbal contract for what I was to do for $414, but it was not written down, but I made a memorandum. Exhibit 8 A5 was the memorandum given to Mrs. Jacoby. After I commenced this work I went to Bloomington to see Mrs. Jacoby; I asked her to go out and look at the building, and see if she did not think it necessary to make some changes ; I told her the frame was so badly rotted that it was impossible to level it with the brick filling in, and that the joists were completely rotten. She came in about two days,” when, he states, he made “a contract with her; was to re-side and re-shingle the house, put in new floors in the lower story, build new pillars and re-build cellar where fallen down, build a small veranda, ceil the lower story, take down a fireplace and build a stove flue in its place, put in two new windows, two new doors, one register in the upper floor, build a closet and pantry, and put a coat of paint on the outside of the house; all the work to be done for §550.” 861 completed the work about October 20, 1886.” The work was a first class job in his judgment. David Grove states: “I heard Mrs. Jacoby say she had made an agreement with Mr. Scougale to pay him §550.” James Simmons states that he is a • carpenter, and worked on the building. 86 The material was good and the work done in a workmanlike manner for a repair job. Defendant was there once or twice while 1 was working there; I heard her say she was to pay §550 for the job.” Mary Reims states: 161 live on Mrs. Jacoby’s farm, and know both parties in tlie suit. Mrs. Jacoby told me the contract with Scongale was §550, but that she would not pay it under any circumstances, This was after the work was completed. She claimed she would not pay because he had not done what he had agreed to do, and that the work was not done well.” Carson states that he was a carpenter. “ I examined the building of the defendant, and the repairs that had lately been done there; the material was a good article for repair work, and the workmanship was fair for repairing. I consider the job done in a workmanlike manner.” Probasco, the painter, states: “I know the building of the defendant; I painted the house outside one coat, and put in a lot of glass for Mr. Scongale. The work was first class and the material good.” Appellant states that the contract was for §414, and denies that she ever agreed to pay Scongale §550; denies telling Grove that she was to pay him §550; states that the work was not done in a workmanlike manner, and that he injured and damaged her property by means of his unskillfulness in making the repairs. Appellant introduced a number of witnesses who testified that the work was done nnskillfully; that it was not a good job, and that she had suffered damages. We do not deem it necessary to refer to the evidence for the appellant in detail On a careful examination and consideration of all the evidence, we are of the opinion that there is sufficient evidence to support the decree. The decree is affirmed.

Decree affirmed.