author: Morait, J.

text:
    City of Chicago v. Lillian E. Smythe.

      Municipal Corporations—Streets—Condemnation of Private Property— Assessments—Interest.

    In an action to recover from a municipal corporation the value of land appropriated by it for street purposes, it appearing that possession thereof was taken by the city six months before the institution of proceedings to condemn the same, the ordinance which authorized such condemnation providing that the cost of the proposed improvement should be paid for by special assessment upon property benefited to the amount the same could be legally assessed, the balance to be paid by general taxation, this court holds that, although the city has been unable to collect the special assessment levied, the deficiency must be made up from the general fund, and that interest is recoverable upon the value of the land from the time the city took possession thereof.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. John W. Green and Clarence A. Knight, for appellant.
    Messrs. Miller, Leman & Chase, for appellee.
    This common law action lies to recover for property actually taken and appropriated to public use. City of Chicago v. Wheeler, 25 Ill. 478; Clayburgh v. City of Chicago, 25 Ill. 535; Soulard v. City of St. Louis, 36 Mo. 552; Jamieson v. Springfield, 53 Mo. 224; Bigelow v. Turnpike Co., 7 Mass. 202; Lebanon v. Olcott, 1 N. H. 339 ; Battler v. Braintree, 14 Vt. 348; Corwith v. Hyde Park, 14 Ill. App. 635.
    Soulard v. City of St. Louis, 36 Mo. 552, is a case illustrating this common law right of action. The plaintiff, Soulard, brought an action at law, alleging that the city, without notice to the owner or offering to make compensation, and without consent, opened and used a portion of plaintiff’s land as a public street, and has ever since so used the same ; that plaintiff had lately signified to defendant his assent to such opening and use on defendant’s paying plaintiff the first value of such land; that the just and fair value thereof is $8,000, and asked judgment for $8,000. The charter of the city gave it power to open, widen, etc., streets, and provided that when it became necessary for that purpose to take private property, and no agreement could be made with the owner, the corporation should make just compensation therefor to the person whose property is so taken, and provided the manner in which property should be acquired. To this complaint the city demurred 'and raised the question whether such action was sustainable, and the court sustained the action.
    In City of Chicago v. Wheeler, 25 Ill. 478, where the city had taken property for a public street, and the damages had been assessed, an action of assumpsit on behalf of the property owner was sustained.
    In Clayburgh v. City of Chicago, 25 Ill. 440, it was held that if the city authorities appropriate a party’s land for a street, and neglect to collect a special assessment wherewith to pay him his damages, he may maintain an action on the case, or waive the tort and sue in assumpsit for the value of the land taken. The familiar principle that a tort may be waived and assumpsit for the value be maintained, is here applied to the case of the appropriation by the city of real estate for public use. The court say:
    “It was objected that as this court had held that assumpsit might be maintained for the value of the land appropriated, the action of case would not lie. In many cases the party injured has his election whether he will sue in trespass or case, or will waive the tort and proceed for the value of the property. So in this case the plaintiff might rely upon the wilful refusal of' the city authorities to discharge their duty, by which he has sustained injury, or he may waive the tort and proceed for the recovery of the value of the land which they have appropriated to the use of the city. We have no hesitation in saying that he may elect as to which form of action he will resort.”
    If the city had the power, after first taking plaintiff’s property, to impose upon her the right of the city to get the money with which to pay her by a special assessment to be made, she could not be compelled to wait indefinitely therefor. This suit was brought two and one-half years after the judgment was entered in the condemnation case fixing the value of the land. After such a delay the city can not say that she shall wait longer to see if a special assessment can be collected. The city must show reasonable diligence and success.
    In City of Chicago v. Wheeler, 25 Ill. 478, it was held" that a delay of two years in - collecting a special assessment was unreasonable, and made the city liable to action.

      It is plain, however, that under the constitutional provision which authorizes private property to be taken for public use only on payment made, and not before payment, it is incompetent, either for the city, or the legislature, or the court, in any way to compel appellee to delay a day in demanding payment of, and bringing suit to collect for her land, which has been already taken for public use. When her land has been in fact taken, then the compensation is absolutely due. Phillips v. South Park Commissioners, 119 Ill. 626.
    Even where, under constitutional provisions, it is competent for the legislature to authorize municipal corporations to take private property for public use without first making payment, it is held to be necessary that the legislature should also make certain and adequate provision by which the owner can coerce the payment of compensation without unreasonable delay. 2 Dillon on Mun. Corp. Sec. 615, and authorities cited. In People v. Hayden, 6 Hill, 361, Mr. Chief Justice Edison says:
    “Although it may not be necessary, within the constitutional provision, that the amount of compensation should be actually ascertained and paid before property is thus taken, it is, I apprehend, the settled doctrine, even as respects the State itself, that at least certain and ample provision must be first made by law (except in cases of public emergency), so that the owner can coerce payment through the judicial tribunals, or otherwise, without any unreasonable and unnecessary delay. Otherwise, the law making the appropriation is no better i than blank paper.”
    In this State the constitution requires the payment of the compensation before the taking of the property can be given by law, and any statute or ordinance which purports to give the right to take private property before compensation is paid is unconstitutional and void; and the validity of every act, proceeding or judgment prior to payment is conditional upon payment being made, and void and of no effect if it is not made. It is the payment that gives the right to take; and, as soon as the property is taken, the property owner’s right to immediate payment is fixed. The compensation is then due. Cook v. South Park Commissioners, 61 Ill. 115; People v. McRoberts, 62 Ill. 38-45; City of Chicago v. Barbian, 80 Ill. 484-6; Schreiber v. C. & E. R. R., 115 Ill. 340; Phillips v. South Park Commissioners, 119 Ill. 626.
   Morait, J.

This was an action to recover from the city for the value of a strip of land which it had appropriated for the purpose of a public street.

In pursuance of an ordinance providing for opening and widening the street in question, a petition for condemnation of this strip with other land was filed in the Superior Court on October 6, 1881, and the compensation to be paid for the land was fixed at $950. It was proved that the city took possession of the land April 9, 1881, some six months prior to the filing of the condemnation petition, and the court in this suit allowed interest on the value of the land from the date of such taking possession, and rendered judgment against the city for the value of the land and such interest in the amount of $1,349.

The ordinance authorizing the condemnation provided that the improvements should be made, and the costs thereof paid for by a special assessment to be levied on the property benefited thereby to the amount that the same maybe legally assessed therefor, and the remainder of such costs to be paid by general taxation,” and the city offered to prove that it had been unable to collect the special assessment levied to pay for the improvements, and counsel for the city now contend that this case is governed by The People v. Hyde Park, 117 Ill. 462, and Village of Hyde Park v. Corwith, 112 Ill. 441.

We are of opinion that those cases do not control here. In those cases the ordinance declared that the entire cost of the improvement should be paid for wholly by special assessment, and the court declined to coerce the village into adopting another method of paying for the land to be taken. Here such part of the cost of improvement as should not be levied on property benefited is to be paid by general taxation. If, therefore, the city has not succeeded in finding property benefited, or has failed for any reason to collect assessment smade on property being benefited, the deficiency is to be made up from the general fund.

The value of the land was due to the owner from the time the city took possession, and we think it simple justice to allow interest from that time. Phillips v. South Park Commissioners, 119 Ill. 626. The judgment of the Superior Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Garnett, P. J.

license: Public Domain

text:
    George Lehman & Sons Company, Impleaded, etc., v. Arthur R. Clark and Johnson S. Findlay.

      Mechanic's Lien—Title—Resulting Trust—Sale.

    Upon a petition for a mechanic’s lien this court holds that the labor and material of plaintiffs went into the building in question; that the person in whom was vested the title thereof, held the same in trust for the defendant company; that although no time was fixed for the completion of the ■ work, the statute was satisfied by its being done within one year, and declines to interfere with a decree for the plaintiff.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. O. H. Horton, Judge, presiding.
    Mr. Charles J. Beattie, for appellants.
    Messrs. Morris & Ganse, for appellees.
   Garnett, P. J.

The facts out of which this litigation grows, are, that David H. Keyes, being the owner of a parcel of ground with a frontage of fifty feet on Wabash avenue, in Chicago, on July 20, 1886, made a contract with appellees and the George Lehman & Sons Company, by which it was agreed that Clark & Findlay should supply all labor and material necessary to complete the carpenter work for a building to be erected on the south 16-f feet of said premises, and should construct another building on the north 16-| feet thereof, and in consideration thereof Keyes agreed to convey the north 16-f feet to Clark & Findlay ; also that said company should supply the labor and material necessary in doing the mason work for the building on the south 16-|- feet, and should construct another building on the center 16f feet of the premises, and in consideration thereof Keyes agreed to convey the center 16f feet to the company. By another contract dated July 22, 1886, Clark & Findlay agreed with said company to furnish all the material and labor necessary for the carpenter work on the building to be erected on the said center 16-f feet, and the company agreed to pay them therefor $2,333. On the same day another contract was made by which the company agreed with Clark & Findlay to furnish the labor and materials for the mason work of the building to be erected on said north 16f feet for the sum of $2,033.

To carry out the scheme thus initiated, it became necessary that the .company should procure a loan of $6,500 on the premises which Keyes had agreed to convey to it. Accordingly application was made for the loan to E. S. Dreyer & Company by George Lehman, in behalf of the company, in which he was manifestly the controlling spirit.

Dreyer & Company declined to make a loan to the company, but suggested that the title should be placed in an individual, and that the latter should execute the papers for the loan. The stock of the company was owned by George Lehman and his family, one of the stockholders being his son, Hibbert J. Lehman. In pursuance of the suggestion made by Dreyer & Company, George Lehman arranged to have the title conveyed to his son Hibbert, and it was so conveyed on August 20, 1886, and the trust deed and notes to secure the loan were made by Hibbert. The latter paid no money then or at any time for the property. All the money secured by the loan was paid out from time to time, by the lender, for the purpose of paying for the building and completion of the house on the center 16-$ feet. The other two buildings were also erected and completed in conformity to the contracts above set forth, and certain extra labor and materials were furnished by Clark & Findlay for the center house.

About July 1, 1887, an adjustment was made between Clark & Findlay and the company, and it was found that there was coming to Clark & Findlay $300 more for carpenter work and extras, on the center house, than was due to the company for mason work on the north house. Thereupon the company made and delivered to Clark & Findlay its note dated July 1,1887, payable sixty days after date, for said $300 with interest at seven per cent per annum. Default was made in payment of this note, and appellees filed their petition in the Circuit Court to enforce a mechanic’s lien against said center 16$ feet and the building thereon, for the amount of the note and interest. A decree having been entered as prayed for, an appeal was taken by the company, Hibbert J. Lehman and Phillip Lichtenstadt, the latter being the holder of a note secured by a trust deed to William G. Witherell, dated February 16, 1887.

There is not even plausibility in the contention that the evidence fails to prove that the labor and materials represented by the $300 note were put into the building in question. Clark testifies, in substance, that they were, and it is an undisputed fact that the settlement, which culminated in the execution of the note, was in relation to the north house and the center house, and as Clark & Findlay did no work for the company on any house except the center one, the balance found due must have been for labor and material furnished on that house. In the amended petition it was alleged that Hibbert J. Lehman held the legal title to the premises, as a trustee for the company. The defendants denied this in their answer and on the hearing before the master both George Lehman and Hibbert J. testified that the latter was the absolute owner and that the company had no interest therein. Whether one or the other was the owner, and whether Hibbert merely held the title in trust for the company, are questions of law that these witnesses can not be permitted to settle by giving their opinion under oath, so as to affect the interest of third parties. Heither of the witnesses testified to any fact which has a tendency to shake the implication of law that there was a resulting trust in favor of the company. Hibbert paid no money or other valuable things for the premises; the entire consideration therefor was paid by the company by -furnishing labor and material for Keyes’ house, and it is a fair inference from the entire record that it was the intention of all the parties that Hibbert should take the title merely for convenience of the company, and in order to secure the loan. That a resulting trust arises, in such cases, in favor of the party from whom the consideration moves, is familiar law. 1 Perry on Trusts, Sec. 126.

Ho time was fixed for the completion of the carpenter work by Clark & Findlay, but as the contract was partly expressed in the terms of the written agreement, and the time of completion was left without any provision, the law raised an implied obligation on their part to complete the work within a reasonable time. Having finished it within a year the statute was satisfied, and their right to a lien became vested Driver v. Ford, 90 Ill. 595.

By the terms of the decree the property is ordered to be sold subject to the liens of the trust deeds to Dreyer and Witherell, so that no ground of complaint remains for any of the parties interested in those incumbrances, nor can the company£or Hibbert J. Lehman object to this feature of the decree, as their interests are in no wise affected thereby. The decree is affirmed.

Decree affirmed.


author: Moran, J.

text:
    Henry L. Waarich v. Sophia Winter.

      Criminal Law—Assault and Battery—Trespass—Continuance—Illness—Physician's Certificate—Discretion.

      1. A court is not bound to grant a continuance on the certificate of a physician.
    2. The improper introduction of counter affidavits on a motion for a continuance will not amount to reversible error, where those in support thereof are insufficient.
    3. Affidavits in support of such motion must not only show that illness prevented presence at trial but also the existence of a defense. Merits must always be shown upon such an application.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County ; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Cutting, Austin & Higgins, for appellant.
    Mr. Stacy W. Osgood, for appellee.
   Moran, J.

This was an action of trespass for an assault and battery, brought by appellee against appellant. When the case was called for trial, appellant’s attorney moved the court for a continuance on account of the sickness of appellant, and in support of such motion filed an affidavit stating that appellant had informed him, the attorney, by letter, some two or three days before, that he was sick, but expected to be sufficiently recovered to be in court when his case was called; but that on the evening before, on returning to his house, the attorney learned that a member of appellant’s family had left word for him that appellant was sick, and also left a certificate of a practicing physician, stating that appellant was ill, confined to his house and in the care of said physician; that appellant resided some twenty-three miles in the country and some distance from a railroad or telegraph, and that the attorney could not safely proceed to trial without the presence of said appellant. Thereupon appellee presented to the court two affidavits in which it was shown that said appellant was seen by the affiants the evening before, attending to his work about the farmhouse and barn, and that he was not sick. The court overruled the motion for a continuance and the case was heard before a jury and a verdict rendered against appellant for 8300.

A motion for a new trial was made, and appellant’s affidavit was filed in support thereof, in which he swears that he was sick on the day of the trial, and under the doctor’s charge, who advised him that it would be dangerous for him to leave his house; that if given a new trial he will prove that the injuries received by appellee at the time and place mentioned in the declaration “were due entirely to her own acts or the necessary acts of this defendant while acting solely in his own defense; that he did not attack said plaintiff and beat her as in said declaration alleged, but on the contrary she attacked him, injuring him to a considerable extent, and that if said plaintiff was at all injured by him, it was while he was using what force was necessary to repel her attacks, and in no other way.” The court overruled the motion for a new trial, and rendered judgment on the verdict, and from said judgment the appeal is taken.

There is no ground for reversal. The court was not bound to grant a continuance on the certificate of a physician. Schnell v. Rothbath, 71 Ill. 84. While the court erred in allowing counter affidavits to be read on the motion for continuance, such error will not constitute ground for reversal where the affidavits for continuance are not sufficient. In such case the counter affidavits will not be regarded as inducing the refusal of the continuance. Wick v. Weber, 64 Ill. 167; Quincy Whig Co. v. Tillson, 67 Ill. 351. The application may have been such as addressed itself to the discretion of the court, and upon such a matter the court could, as it seems to us, inform itself fully from the sworn statements of both parties in order to guide its discretion, the application being made for a favor, and not for a right. Ault v. Eawson, 14 Ill. 484.

The affidavits filed in support of the motion for new trial, probably sufficiently establish that appellant was prevented by sickness from being present at the trial, but they wholly fail to show by the statement of facts that appellant had any defense. Appellant states his conclusions that the injuries inflicted on appellee by him where inflicted in self-defense, but conclusions from facts are for the court or jury and not for the witness. The affidavits should have stated the facts and circumstances of the quarrel, if there was one, so that the court might see that the conclusions which appellant drew were supported by the facts which he could swear to.

Merits must be always shown on such an application. Waugh v. Suter, 3 Ill. App. 271; Slack v. Casey, 22 Ill. App. 412; Stenzel v. Sims, 25 Ill. App. 538. The judgment of the Superior Court must be affirmed.

Judgment affirmed.

Gaby, J., took no part in the determination of this case in this court.


author: Garrett, P. J.

text:
    Jacob Heissler and August Junge v. Charles Stose.

      Landlord and Tenant—Recovery of Rent—Action of Debt—Appraisers —Disagreement—Interest—Evidence.

    1. In an action of debt for the recovery of rent, this court holds that the intention of the parties to the lease was for the payment of rent monthly in advance, and that the fact that the amount of each installment was uncertain through failure of appraisers to agree in accordance with a clause therein, was no defense to the claim for interest upon each monthly sum found to be the reasonable rental value of Ihe premises in question.
    2. Rent in advance can not be recovered in the absence of an agreement to that effect.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    The declaration in this case was in debt, and avers that appellee, on December 4, 1887, executed a lease to appellants of 347 and 349 State street, in the city of Chicago, for a term from May 1, 1878, to May 1, 1888, at a rental from May 1, 1878, to May 1, 1879, of $110 per month, payable on the first day of each month, and from May 1, 1879, to May 1, 1884, $125 per month, payable on the first day of each month, and further providing that the rental from the first day of May, 1884, until the first day of May, 1888, should be fixed by three appraisers, one to be selected by the plaintiff, Stose, and one by the defendants, Heissler and Junge, and the two thus selected to choose a third, and the three to fix the rental; that prior to the first day of May, 1884, the plaintiff selected James Campbell and the defendants selected Charles Kosminski, and the two thus chosen selected James C. Sinclair as a third appraiser; that the three appraisers met; that Campbell and_ Sinclair agreed upon the rental value of said premises, but, that Jvosminski refused to agree with them upon the rental value determined by said Campbell and Sinclair; that defendants had notice of such disagreement, and that “ by means thereof said defendants became liable to pay to the plaintiff so much money on the first day of each and every month from the first day of May, 1884, for and during and until the first day of May, 1888, as rent for the use and occupation of said premises, as the same are reasonably worth, and that the same are reasonably worth the sum of $250 per month;” that by virtue of said demise, the defendants entered into the posses-, sion of said premises, and retained possession from the first day of May, 1878, until the bringing of the suit, “when a. large sum of money, to wit, the sum of $10,000, for the use: and occupation of said premises by the defendants, of the plaintiff, from the first day of June, 1884, to the first day of May, 1887, became due from the defendants to the plaintiff; that the defendants, though requested, etc., have not paid the sum of money, and therefore,” etc.
    Second count sets forth the lease, the covenant in respect to the selection of appraisers, their refusal to agree, and notice to the defendants of such refusal, and “ by means whereof said defendants became liable to pay the plaintiff so much money on the first day of each and every month, from the first day of May, 1884, for and during and, until the first day of May, 1888, as rent for the use and occupation of said premises, as the same are reasonably worth, and that the same are reasonably worth the sum of $250 per month.” That .by virtue of said demise the defendants entered into the possession of the premises, and were possessed thereof from May 1, 1878, to and until the time of the bringing of this action, “ when a large sum of money, to wit, the sum of $10,000, for the use and occupation of said premises of the plaintiff by the defendants, from the first day of June, 1884, to the first day of May, 1887, became due from the defendants to the plaintiff; that the defendants, though often requested, etc., have not paid the sum, therefore,” etc.
    Two additional counts were filed, the first averring that on June 1, 1887, the defendants were indebted to the plaintiff in the sum of $8,750, for the rent of 347 and 349 State street, from the first day of June, 1884, to the 31st day of May, 1887, at a monthly rental of $250 per month, together with interest at the rate of six per cent per annum on each monthly installment of said rent. The second averred that defendants were indebted on the 1st day of June, 1887, in the sum of $10,000, for the use and occupation of certain premises, 347 and 349 State street, by the defendants held and used and occupied, at the request and by the sufferance and permission of the plaintiff.
    There was a plea of nil debet, and a stipulation that defendants might introduce any evidence which might be admissible under any special plea which might be properly pleaded in said cause. On the trial a verdict was found for the plaintiff for $7,000 debt and $1,044 damages. Motion of defendants for a new trial was overruled and judgment on verdict, from which defendants appeal.
    Messrs. William H. Barrum and Bubers & Mott, for appellants.
    Messrs. Wilsor & Zook, for appellee.
   Garrett, P. J.

The damages allowed by the jury represented interest on each installment of rent, and the only question is whether interest was recoverable. Appellant contends that there was no money due on a written instrument, and therefore Sec. 2, Ch. 74, Rev. Stat., does not warrant the recovery. There can be no doubt that there was money due when the action was commenced, otherwise the suit would be premature. And since the decision in Stose v. Heissler, 120 Ill. 433, it must be admitted that some amount of money, as rent, was due each month in advance. The lease in question was there construed, and the court held it to be evident that both parties contemplated the payment of rent monthly in advance, during the entire term.

If the rent was due merely by reason of appellants’ occupancy and the implied undertaking arising therefrom, there is no known rule of law which would make the value of the use and occupation due each month in advance. We perceive no reason why, in the absence of any agreement, a suit might not be brought each day for the preceding day’s use, but it is certain that no suit could be maintained for future use and occupation unless there was an agreement to that effect. There is, then, no escaping the conclusion that there was money due each month in advance, and that it was due on and by virtue of a written instrument. That the amount was uncertain is no defense to the claim for interest. Appellants knew when they executed the instrument that, in a certain contingency, the amount-of ■ their monthly liability would become uncertain, and they should have provided against the possibility of having to pay interest on a demand, uncertain as to its amount. To say that they did not foresee the happening of the event is no better defense than to say they did not know the law. The judgment is affirmed.

Judgment affirmed.

Gajíy, J., took no part in this case.


author: Garnett, P. J".

text:
    Mary L. Lambert et al. v. Frances Hyers.

      Foreclosure—Redemption—Sale—Assignment of Certificate of—Feed— Writ of Assistance.

    Upon an order directing the issuance of a writ of assistance in behalf of the grantee in a master’s deed of real property sold under foreclosure proceedings, said grantee being the assignee of the certificate of sale, it being contended that the reversal of the decree of sale by this court subsequent to the execution and delivery of such deed operated to divest the title acquired thereby and that for such reason there was no foundation for the issuance of the writ, it is held: That the writ was properly issued, the facts being that the grantee in the deed was a stranger to the decree, and that the reversal was for an error only, of which the purchaser was not obliged to take notice.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. C. M. Hardy, for appellants.
    Messrs. Francis Lackner and Marcus Hitch, for appellee.
    If a judgment or decree is reversed for error it is a settled principle of the common law, coeval with its existence, that the defendant shall have restitution of the purchase money and the purchaser shall hold the property sold, unless, indeed, the plaintiff himself be the purchaser and still holds the title. Fergus v. Woodworth, 44 Ill. 381; Voorhees v. Jackson ex dem. the Bank of the United States, 10 Peters, 449.
    Appellants were present at the sale, but gave no notice of their intention to contest the same. The appeal which they had prayed from the decree had not been perfected, although nearly four months (from February to June) had elapsed since the entry of the decree ; the time for perfecting said appeal had expired. It would be fraud for a defendant to stand by and, without giving a purchaser any notice of his claim, allow a sale to be made under a decree then in full force and not appealed from, and then be permitted to bring a writ of error years afterward and attack the sale.
   Garnett, P. J".

A decree of foreclosure was entered by the Circuit Court on February 24,1885, in a cause then pending,wherein Frances Hyers was complainant, and Mary L. Lambert, Eudolph Lambert and others were defendants. From that decree the defendants prayed an appeal; which the court allowed, but nothing was done to .perfect'the appeal. At the master’s sale, under the decree, on June 10,1885, the premises decreed to be sold were struck off to John C. Ender, a stranger to the decree, he being the highest bidder, and a certificate of sale delivered to him. The certificate of sale was afterward assigned by Ender to Frances Livingston, and no redemption having taken place, the master, on September 22,1886, executed and delivered a deed in due form, conveying the premises to her. Afterward the Lamberts sued out a writ of error, and at the March term, 1887, this court reversed the decree. At the February term, 1888,-of the Circuit Court, on the application of Frances Li vingston, a writ of assistance was ordered to be issued to place her in possession of the premises.

The Lamberts appealed from that order, and the sole question now presented is, should the writ have been allowed ? Ho question is made as to the notice served and demand made being sufficient to authorize a writ, but appellants contend that the title acquired by the master’s deed is divested by the reversal of the decree, and that there was foipthat reason no foundation for the issuance of the writ.

If the complainant had been the purchaser at the master’s sale, and continued to hold the title until the writ of error became lis pendens, the point would doubtless be in accord with the authorities. But it is the policy of the law to encourage bidding at judicial sales, and the fixed rule of this State permits a stranger to the decree to purchase, without incurring the risk of a mere error that may be developed at any time within five years after the decree* is entered. Feaster v. Fleming, 56 Ill. 457; Hays v. Cassell, 70 Ill. 669; Hedges v. Mace, 72 Ill. 472; Fergus v. Woodworth, 44 Ill. 381; Murphy v. Loos, 104 Ill. 514. At the time of the decree the court had jurisdiction of the parties to, and suhject-matter of, the suit.

The reversal was for an error only, which the purchaser was not obliged to search for. The órder of the Circuit Court is affirmed.

Order affirmed.


author: Gary, J.

text:
    The Town of Lake v. John A. E. Bok.

      Municipal Corporations—Raising Street Grade—Floioage of Surface Water—Obstruction of—Damages—Evidence—Instructions.

    In an action against a municipal corporation, to recover dam-iges for obstructing the flow of surface water by raising the grade of a street, this court holds that a harmless erroneous instruction touching the measure of damages can not be complained of, and declines to interfere with a verdict for the plaintiff.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard 8. Tüthill, Judge, presiding.
    Mr. R. P. Hollett, for appellant.
    Mr. Joseph H. Barker and Clifford, Smith & Fry, for appellee.
   Gary, J.

This is an action by the appellee against the town for obstructing the flow of surface water from his land, by raising a street. This is a cause of action in this State, though great differences of opinion on the subject exist elsewhere. Gormley v. Sanford, 52 Ill. 158; Gillliam v. Madison R. R. Co., 49 Ill. 484; Angell on Watercourses, Sec. 108 et seq. The fact whether the land of appellee was affected,as he claimed, was settled by the verdict of the jury, upon conflicting evidence, in his favor.

There is in the case an erroneous instruction as to the measure of damages, which seems to have arisen by mere inadvertence, using and ” in place of “ or,"’ by which the jury are permitted to give to the appellee the cost of getting his crop to the state it was in, and the value of it as it was, instead of giving one or the other. But this instruction did no harm. If he was entitled to recover at all, no computation, based upon the testimony, could make his damages less than nearly or quite double all he has recovered. The judgment can not be disturbed. East St. Louis v. Flynn, 19 Ill. App. 64.

Judgment affirmed.


text:
    Patrick Moran et al. v. John Hope Gordon et al.

      Sales—Consignments—Advances—Draft for—Refusal to Accept—Evidence—Practice.

    1. Whether silence, for an unreasonable time after receipt of an account, amounts to an admission of its correctness, or delay in noticing the same was unreasonable, are questions for the jury.
    ‘2. The finding of a court in a given case is entitled to the same respect as the verdict of a jury; and in a trial by a court its decision will ordinarily be reversed or affirmed by the same rules which govern when the facts are tried by a jury.
    3. In an action brought to recover advances, freight charges, etc., alleged to be due upon a shipment of butterine, the contention being as to whether the goods were sold or consigned, this court declines, in view of the evidence, to interfere with verdict for plaintiff.
    [Opinion filed April 17, 1889.]

      Appeal from the Superior Court of Cook County; the Hon. Johh P. Altgeld, Judge, presiding.
    Messrs. Clifford, Smith & Fry, for appellants.
    Messrs. S. E. Dale and F. W. Becker, for appellees.
   Garrett, P. J.

Appellees, who are surviving members of the firm of Fraser, Gordon & Co., sued appellants in the court below to recover a balance alleged to be due appellees for advances, freight, etc., on fifty tubs of butterine shipped in 1880 by appellants from Chicago, to Fraser, Gordon & Co., at Glasgow, Scotland. By stipulation a jury was waived and the cause submitted to the court for trial. Appellees had judgment, from which this appeal is taken. The suit is occasioned by the fact that there was a loss on the sale of the property, appellants contending that the goods were sold by them to the Glasgow house, while the appellees claim they were consigned. On the trial, evidence was given tending to prove that prior to the time in question appellants had made quite a number of shipments of goods to the Glasgow house, and that they were all consignments. It also appeared from the evidence in the case, which consists largely of correspondence between the parties, that after the goods were shipped, and before they arrived at Glasgow, there was a misunderstanding as to the character in which appellees were to receive the goods, whether as purchasers or factors. Appellees having declined to accept the draft against the shipment on the ground that it was more than its full value, and asserting that the member of their firm with whom the arrangement was made understood it to be a consignment, were induced, nevertheless, to make the acceptance, on receipt of a letter from appellants, in which they said, “We don’t want any ill-feeling to arise from a little thing like this, and had rather lose the full amount. We want the draft paid anyway, and if it is not right we will make it right.” Appellees might have supposed from this letter that appellants meant that although they considered it a sale, yet they would not insist upon that construction of the transaction, and all they cared for was that they should not have imposed upon them the discredit of drawing against a shipment without right to do so. From that time on appellees consistently, and at all times, treated and wrote of the butterine as the property of appellants. November 19, 1881, sale was made and account sales at once transmitted by appellees to appellants, showing balance due to appellees as claimed in this suit. Appellants admit the receipt of the account, and it is admitted that no answer was made thereto until February 16, 1882. The failure to object to the account was evidence tending to prove an account stated. 1 Greenl. on Ev., Sec. 212; 1 Taylor on Ev., Sec. 810.

Whether silence for an unreasonable time, under such circumstances, amounts to an admission of the correctness of the account, and whether the delay was unreasonable, are questions of fact for the jury. Hagenbaugh v. Crabtree, 33 Ill. 225. In this case the court took the place of the jury, and its finding is,to be treated with the same respect as the verdict of a jury. If the evidence would have .warranted the latter in returning a verdict for the plaintiff it was sufficient foundation for the finding of the court. In trials by the court the general rule is, that “the decision will be reversed or affirmed by the same rules which govern when the facts are tried by a jury.” Field v. C. & R. I. R. R. Co., 71 Ill. 461.

There being evidence to support the finding, and no error of law having been committed, the judgment will be affirmed.

Judgment affirmed.


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    Robert W. Clark v. Thomas Scanlan.

      Master and Servant—Building Contractor—Wrongful Discharge— Recovery for Partial Performance—Damages—Evidence—Instructions.

      1. In an action brought by a contractor, discharged before the completion of his labors, to recover for services rendered, this court holds that the admission of evidence touching the reasonable worth thereof was erroneous, and that it should have been shown what the work and material furnished were worth according to the contract price.
    2. In the case presented it is held: That the fact that the court gave the jury an instruction, stating the correct rule of damages, upon request of the defendant, will not cure the error committed in giving an erroneous one in behalf of the plaintiff, there being no evidence in the record as to the true rule on which to base a verdict, it being apparent that the erroneous rule was followed in arriving at the same.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Aethoet, Judge, presiding.
    This action was brought by appellee to recover for certain mason work done for appellant. The declaration contained the common counts and a special count, which alleged the making of a contract by plaintiff to build and complete for defendant the substructure of a residence, including stone and brick work, etc., according to plans and specifications, and to the satisfaction of the architect, for the sum of 81,278; that plaintiff began the work and proceeded until it was discontinued in the fall of 1886, by the orders of appellant, until settled weather should arrive in the spring of 1887. That plaintiff was and always lias been ready to complete said work according to agreement, but defendant refused to allow plaintiff to do so, and canceled the said contract and prevented plaintiff from completing said work, and wrongfully discharged plaintiff from any further performance thereof, and retained all the material and labor of plaintiff, whereby plaintiff has lost said labor and material, and the profits and advantages he would have derived by the completion of said work, etc. Defendant pleaded the general issue and set-off. There was a trial by jury and a verdict for $1)200 against defendant, and from the judgment rendered thereon this appeal is prosecuted.

      Messrs. T. H. Gault and D. H. Penney, for appellant.
    Under the proofs in this case there can be no question of the utter worthlessness of the structure as made by appellee. On whom shall the loss fall, is the question to be settled. The court below instructed the jury in effect that no matter whose fault it was, if the work was done under the direction of the architect, then the contractor should recover.
    Even the certificate of an architect can not dispense with the performance of any substantial part of the contract. Bond v. Newark, 4 C. E. Green (N. J.), 376.
    Nor will the acceptance of a different class of work by the architect bind the owner. Gracius v. Black, 50 N. Y. 145.
    “ The duty of the architect was to see that the contract was faithfully fulfilled according to the agreement. Appellant had a right to insist upon a strict compliance with the agreement, and, unless specially authorized, the architect could not change its terms. If he might to the extent claimed in this case, he might as to any and every part of its terms, specifications and conditions. This no one would claim.” Adlard v. Muldoon, 45 Ill. 194.
    While this is not an action on the contract where a certificate had been given—nor an action on the contract alleging fraud on the part of the architect in refusing to give a certificate—still the same principle, so far as applicable, would apply.
    The allegations of the declaration are, that appellant and appellee entered into a written contract for the building of a substructure or basement, which was to be built by appellee according to contract plans and specifications and to the satisfaction of the architect. The work progressed until a certain time, when, by orders of appellant, work was discontinued until settled weather in the spring, and that the appellant refused to permit appellee to fully complete the job, etc.
    Under such a complaint recovery could be had (if at all) for the value of the labor and material. Guerdon v. Corbett, 87 Ill. 272.
    If the price is not fixed by the contract then a recovery could be had for the value of the service. Eyer v. Weissgerber, 2 Iowa, 463.

      If the price is fixed by the contract and a party is prevented from performing, then he may recover in proportion to the stipulated price. McCarsland v. Creasep, 3 Greene (Iowa), 161.
    The correct mode of determining the value of satisfactory work on an unfinished contract is the contract price, less what it would cost to complete it. Gowzales v. McHugh, 21 Tex. 259.
    The measure of damages is what it would cost to procure the work necessary to be done to make the building conform to contract. Smith v. Bristol, 33 Iowa, 24.
    In no case can a recovery be had for more than the contract price, and a recovery can not be had for that unless the work is reasonably worth it, or if, by paying it, the rest of the work will cost the defendant more than if the whole had been completed under the contract. Allen v. McKibbin, 5 Mich. 447.
    The measure of damages, if the work had been good, would be the contract price, less what it would cost to finish the job. If, however, as in this case, the work was so poorly done as to be of no value, or if it cost the appellant more to rebuild and complete the structure, so as to make it as good as the contract price and specifications required it to be, then no recovery could be had at all; and the great weight of evidence in this case shows that the work done and material furnished left a structure wholly unfit to build upon, and that the cost to rebuild was greater than the contract price.
    Mr. Edward Maher and John C. Simonds, for appellee.
    Under the contract in this case the architect and superintendent was the agent of the owner and the arbiter of all disputes. If he was the arbiter it became the imperative duty of the appellee to obey his directions. If he so obeyed directions and injury thereby resulted the contractor was not blameworthy. If not blameworthy he was entitled to recover in this action.
    The agreement in evidence established the status of the contracting parties. Scanlan submitted himself to the will of the architect. The work was to be done “ to the satisfaction of and under the direction of the architect.” So, “ if any dispute should arise between said parties in relation to the contract, or work to be performed under it, or in relation to the plans, drawings and specifications (or alterations), the decision of G. Isaacson, architect, shall be final and binding on all the parties hereto.”
    The architect acts for the owner. If the owner may be bound by an agent in any transaction or contract, he may bo bound ia a building contract where he expressly designates his agent and charges him with express duties.
    The relation of principal and agent exists where an architect acts for the owner in superintending the erection of a building. Emden’s Building Law, 65-6; Kimberly v. Dick, L. R. 13 Eq. 1.
    The relationship corresponds with that of master and servant, and the maxim, gui faoit per alium facit per se applies. Brown v. Acrington Cotton Co., 3 H. & C. 511; Emden Building Law, 65-6.
    The English courts have decided that, when a matter in dispute in the contract is submitted to an architect, his determination of the subject is in the nature of an award. Wadsworth v. Smith, L. R., 6 Q. B. 332.
    In cases not involving the precise points at issue in this case, our own Supreme Court hold that the "decision of the architect is conclusive, where the contract provides his decision shall be final on all questions of difference arising under the contract. Downey v. O’Donnell, 86 Ill. 49; Finney v. Condon, 86 Ill. 78; Downey v. O’Donnell, 92 Ill. 559; Snell v. Brown, 71 Ill. 134.
    ■ Several cases are cited by counsel for appellant in support of the theory, that the certificate or approval of the architect does not waive the right of the owner to have a substantial compliance with the contract. Chiefly they seem to rely on Adlard v. Muldoon, 45 Ill. 194; Bond v. Newark, 4 C. E Green (N. J.) 376; Gracius v. Black, 50 N. Y. 145.
    It is respectfully submitted to this court that these cases do not control the case at bar. Each of them is distinguishable from this. In the Adlard case the architect undertook to approve performance, where there were palpable omissions and distinct variations and alterations in the contract. Gas-pipes were left out of bed-rooms. The newel posts, brackets and cornices were altered and varied. The architect justified his conduct by showing that extra work had been done as compensation. The court very rightfully held that the architect could not alter or vary the agreement. This is certainly different from the present case, where a dispute as to method of doing the work arose. Also in the bond case (-ubi SMjp.) the court said that an architect could not accept a brick house where a marble house was contracted for, “ but the architect may say that the work was done in a workmanlike manner or of proper materials of the kind required.” Bond v. Newark, 4 C. E. Green, (N. J.) 376; Bonnet v. Glattfeldt, 120 Ill. 176.
    The very questions involved in this case have been twice before the Supreme Court of Illinois. The doctrine seems fully declared and may be pronounced res adjudicata.

    In the first case the court held the contractor bound by the terms of the contract. If he agreed to perform the work to “the satisfaction and under the direction of the architect,” he must do so. “An express contract admits of no departure from its terms.” Clark v. Pope, 70 Ill. 131-2.
    If there was doubt as to the plans, etc., it was the duty of the contractor to apply to the architect for directions. If he relied on his own skill he would have to bearthe consequences. This decision makes it the duty of the contractor to apply for directions. Clark v. Pope, 70 Ill. 133.
    Again, in a recent and well-considered case, where the contract was that “the architect was appointed superintendent, with full power to inspect, accept and reject any work done or material furnished, whether worked or otherwise, when the same should not be in accordance with the plans and specifications, and that his decision on the matter should be binding and conclusive on the parties,” the error assigned was the refusal of an instruction, which said that “ it was the duty of the plaintiff to take down and rebuild a wall in a workmanlike manner, and that no instructions of the superintendent [architect] could relieve the plaintiff from the duty imposed by that agreement.” This instruction was refused. It presents the very same ideas contained in the fourth and fifth instructions refused in this case. Mr. Justice Sheldon, in delivering judgment, said:
    “ There might well have been a difference of opinion as to how much of the walls should bo taken down. We think under the agreement the architect was constituted the judge in this respect, whose decision should be binding and conclusive on both parties; and if he determined to what extent the walls should be taken down then the plaintiff would have been justified in following the directions of the architect.” Bonnet v. Glattfeldt, 120 Ill. 176.
    There was some evidence in the case that Mr. Clark insisted on more mortar. If he did, he also is directly responsible. If the owner is responsible for the acts of his architect, a fortiori, he is liable for his own. Where the defect in the work is occasioned by the owner, the contractor is not thereby responsible. Vermont St. M. E. Church v. Brose, 108 Ill. 207.
   Moran, J.

The evidence introduced by appellee tended to show that he performed the work under the special contract which was introduced in evidence, and under the express direction and constant superintendence of the architect mentioned in the con tract, and that he was ready and willing and offered to complete the work; that he was prevented from so doing by appellant, who declared the contract forfeited and canceled. There is in the record a conflict of evidence as to the manner in which the work was done and as to delay in doing the work, and who was to blame therefor, but it is agreed on all hands that the work was not completed, and that a material portion of that called for by the contract remained to be performed, when appellant notified appellee that he would not allow him to proceed further with the job. If it be assumed that the controversy, with reference to the manner and time of performance of the work, is settled by the verdict in favor of appellee, and that the effect of the verdict is to establish that the forfeiture of the contract by appellant was wrongful, still the verdict can not stand, for the reason that the court gave to the jury an improper measure of damages. The court gave to the jury at appellee’s request, the following instruction :

“In this case if the jury find from the evidence that the plaintiff, Scanlan, was stopped or prevented by defendant from completing the work without the fault of said Scanlan, then and in such case the jury should render a verdict for plaintiff, and in assessing damages give him such sum as the material furnished, work and labor done, was reasonably worth, if such work was done' and material furnished. It is well settled in this State that when a suit is brought to recover for work done or material furnished under a special contract, the stipulations of the contract must govern as to the value of such work and materials, and the contractor can not recover upon a quantum, meruit or quantum valebant in disregard of the prices fixed by the contract, notwithstanding he may have been prevented from completing the contract by the wrongful act of the other party to the contract.” City of Chicago v. Sexton, 115 Ill. 230.

The fact that the court at the request of appellant gave to the jury an instruction stating the correct rule will not cure the error in this case, even if the jury might be left to choose which of the two different rules of damage staled to them by the court they would follow; for the reason that there is no evidence in the record on the theory of the true rule on which to base the verdict. The only evidence introduced by appellee, as to damages, is his own answer to the question, how much the work done and material furnished by him was reasonably worth—that it was worth $1,200, and he had never been paid any of it. There is no proof whatever of the value, according to the contract price, of the work and material furnished, and as the jury rendered a verdict for $1,200 it is evident that appellee’s rule of damages was adopted. It was error to admit evidence as to what the work was reasonably worth. It should be shown what the work and material furnished were worth according to the contract price. For the error pointed out the judgment will he reversed and the cause remanded.

Reversed and remanded.


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    The Village of La Grange v. Herman Benze.

      Master and Servant—Municipal Corporation—Local Improvements— Special Assessments—Commissioner’s Compensation—Recovery of.

    Where a municipality retains a person as commissioner to make a special assessment, the necessary preparatory work which he may do before taking the oath of office, is a part of the service for which he should be paid, and he is likewise entitled to compensation for services rendered before his appointment, if the same were performed at the request of the municipal authorities.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Lyman & Jackson and H. V. Freeman, for appellant.
    Mr. Adolph F. C. Mueller, for appellee.
   Gary, J.

This record shows that in the summer of 1886 the appellants, proposing to construct sewers in the village, the expense to be defrayed by special assessment, retained the appellee to render service as a commissioner in making such assessment. Such commissioners are, under the law, appointed, by the County Court, but it is well known that in practice the court acts upon the suggestion of the attorney of the municipality, in designating the persons who shall serve. The commissioners for this assessment took the oath of office August It), 1886, and certified to the assessment role, in detail, the 30tli of the same month.

Upon these facts the appellants contend that, until his appointment as commissioner, the services of the appellee could not begin, and being ended on the completion of the roll, the question is: “What were Mr. Benze’s services, between August 19, 1886, and August 30, 1886, in assisting in making tiró assessment, worth?” There is no statute by which the compensation is fixed. Either the appellee is entitled to nothing or to a reasonable compensation for the actual service.

The appellants admit, at least do not dispute, that the village is responsible for such reasonable compensation. The appellee testifies that he was retained in the latter part of July, 1886, and very urgently solicited to undertake the business, so as to get the roll ready for the September term of the County Court; that he told the village authorities that the time was too short; he would have to stop all other work, and then it would be doubtful whether he would be able to get it out; that he did all the figuring and made the calculations; although there were three commissioners, usually one man had the work to do, and that lie worked at it six weeks, not only during the day time, but of evenings, including Sundays. ¡None of this testimony was disputed, and is now only met by the assertion that the services of the appellee could not begin until he had been appointed commissioner.

The date of his appointment does not appear in the record. It does appear that the village ordinances ordering the construction of sewers were passed June 25, 1886. When a commissioner has been appointed, though he has not taken the oath of office (or, even before his appointment, if at the request of the village authorities), the necessary preparatory work that he may do for making a just and equal assessment is a part of the services, for which he should be paid, as much as the actual results of such preparations when embodied in the roll.

The evidence as to a reasonable compensation ranged from 8150 to 8900 for the work, as a whole, or as a per diem about 815 per day. The court allowed 8375, probably as the result of a calculation of twenty-five days’ service, at 815 per day, and not encouraging the appellee to work hereafter nights and Sundays.

This finding of the court, with no other complaint than as to the amount, is an end of the controversy, and the judgment is affirmed.

Judgment affirmed.


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    J. Obermann Brewing Company v. Charles H. Gurney.

      Negotiable Instrument—Note—Due Bill—Mistake as to Meaning of.

    An erroneous interpretation of the terms of a due bill by its maker is no defense to an action thereon.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Sidney C. Eastman, for appellant.
    Messrs. Weigley, Bulkley & Gray, for appellee.
   Garnett, P. J.

Appellee sued appellant in an action ofassumpsit in the Superior Court on a written instrument, which reads as follows:

8400.

Chicago, Sept. 25, 1885.

Due Gustav Weishaupt,- the sum of four hundred dollars for value received. Interest six per cent from date until paid. Said sum to be paid in full one year from date. It is further agreed that we will pay him on account of said sum during said year such sums as our books show credit due to Charles Clark from day to day.

J. Obermann Brewing Company,

(Limited)

By G. J. Obermann, Vice-president.

Weishaupt indorsed and transferred the paper to appellee, for whom judgment was given. The defense now urged is in effect that appellant’s officer, who attended to the transaction, did not understand the legal effect of the instrument. Ho claim is set up that the execution of the instrument was procured by fraud and circumvention. The vice-president, who wrote the signature, admits that he knew at the time what was in the paper, and says he ought to have known better than to sign it, but he had confidence he was being protected. That was the time to provide for appellant’s protection, if any was agreed on. The understanding of appellant, or its erroneous interpretation of the terms of the writing, can not be interposed as a defense. The words are plain and unambiguous, the consideration was sufficient in law, and we see no reason to disturb the judgment.

Decree affirmed.


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    Frank R. Baker v. Robert Strahorn and Juliette Strahorn.

      Adoption—Act of February 27, 1874, Chap. 4, R. S—D'woree of Parents—Desertion.

    1. In proceedings brought by grandparents for the adoption of a minor grandchild, its mother, the daughter of petitioners, having received its custody upon being granted a divorce from its father, she consenting to such adoption, this court declines to interfere with a decree in conformity with the prayer of the petition.
    2. The welfare of the child is of prime importance in such proceedings, and caprice, obstinacy or opposition, prompted by unworthy motives_on the part of the non-consenting parent should not be regarded.
    3. It seems that the granting of a divorce to a wife on the ground of desertion, together with the custody of her child, accompanied by the absence of all assistance to the child by its father, amounts to a continuance as to it, of the desertion of the mother and child, which began before the suit for divorce was brought.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Loein C. Collins, Judge, presiding.
    Mr. W. W. Gurley, for appellant.
    Mr. John M. Hamilton, for appellees.
   Gary, J.

This "is a proceeding under the act of February 27, 1874, Ch. 4, E. S., in relation to the adoption of children.

The child Edna is a girl who is about seven years of age, as the decree states, at the time it was entered, July 22, 1888. She is the daughter of the daughter of the petitioners. Though not expressly shown by the record, it is fairly infer-able from it that the petitioners have all the comforts, and probably the luxuries of civilized life, and that the father of the child, he being the appellant here, has neither the one nor the other, for the helpless object of this proceeding. June 3, 1885, the parents of the child were separated by a decree of divorce, granted to the wife because of cruelty of the appellant. He had left mother and child, before the suit for divorce, in destitution, in a house provided for them by the father of the wife. The decree gave the custody of the child to the wife, and the appellant has done nothing for either of them since. Their home is with the petitioners. The mother of the child is delicate in health, and consents to the adoption with proper recitals of facts.

The welfare of the child is an important element in a proceeding of this character. The natural rights of the parents are not to be disregarded, but nothing is to be yielded to mere caprice or obstinacy, or to opposition prompted by any unworthy motives. Whether the decree of divorce, i/pso facto, confers upon the wife, to whom it is granted, and to whose custody it commits the child, authority to consent to the adoption of, as it does to" appoint a testamentary guardian for the child (Wilkinson v. Doming, 80 Ill. 342) or not, such a decree and custody, accompanied by the absence, on the part of the appellant, of all parental assistance or aid to the child, may well be held to make a sufficient case, that continues toward the child, the desertion of both mother and child, which begun before the suit for divorce was commenced. There is no reasonable presumption, in law or fact, that a woman, yet probably young, the daughter of living parents, has any independent pecuniary resources. The whole case shows that the only shelter for this tender infant is in the home and affections of her grandparents, and to that haven of rest the decree properly committed her.

Decree affirmed.


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    City of Chicago v. Albert W. Morse.

      Municipal Corporations—Negligence—Personal Injuries—Defective S i reets—E viden ce—Instruction s.

    1. Whether or not a certain course of conduct is negligence is for the jury.
    2. In an action to recover from a municipality for a personal injury alleged to have been occasioned by a defective street, this court holds as erroneous an instruction given in behalf of plaintiff, the same containing no reference to the evidence, and setting forth in effect that a traveler upon the streets of a city need not exercise ordinary care.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Messrs. Hempstead Washburns and Theodore Brentano, for appellant.
    Messrs. We art & We art and J. S. McClure, for appellee.
   Gary, J.

By the testimony of the appellee it appears that on a pleasant afternoon, September 8, 1888, about two o’clock, he sat on the driver’s seat of a laundry delivery wagon going south on Wabash avenue, a wide street paved with asphalt blocks, paying no attention to anything, and the horse that he had driven for thirteen or fourteen years drew the wagon into a hole, caused by repairs that were being made in the pavement. The result was the overturning of the wagon and breaking of the appellee’s leg, and he wants the city to pay for it.

In such a case, if a verdict for him could be sustained at all, it would be a prerequisite that the instructions, if any were given, not asked for by the city, should be free from all reasonable objection. The court of its own motion gave an instruction, telling the jury that if they believed certain facts the city was liable, without referring in any way to the evidence as the source of belief. Freeport v. Isbell, 83 Ill. 440, and Fame Ins. Co. v. Mann, 4 Ill. App. 485, and cases cited there, show that such an instruction may or may not be overlooked as the merits of the case may appear; and in this case the defect may perhaps be considered cured by a clause added to one of the instructions asked by the city, “ that their verdict must be given upon the evidence.” “The jury are instructed, as a matter of law, that any person traveling upon a street of a city which is in constant use by the public, has a right, when using the same with due diligence and care, to presume, and act upon the presumption, that it is reasonably safe for ordinary travel throughout its entire width, and free from all dangerous holes, obstructions or other defects,” is the first instruction given on the part of the appellee.

There is in this no reference to the evidence, and when the jury are told that appellee “has aright * * * to presume

and act upon the presumption that a street is reasonably safe for ordinary travel throughout its entire width,” it in effect informs the jury that a traveler upon a street in this city need take no heed to his ways.

At the best the clause, “when using the same with due diligence and care,” serves only to-instruct the jury that acting upon the presumption of safety is not inconsistent with due care. It is for a jury to say what action is or is not, consistent with due care ; or, in other words, what course of conduct is or is not negligence. Penn. Co. v. Frana, 112 Ill. 398 ; Myers v. I. & St. L. Ry., 113 Ill. 386. The judgment must be reversed and the cause remanded.

Reversed a/nd remanded.


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    D. Theodore Merritt v. Philander G. Merritt et al.

      Mortgages—Foreclosure-Practice—Dismissal■—Reinstatement—-Limitations.

    1. A cause can not be reinstated after the term during which it was 'dismissed has passed, unless under such circumstances as, on a bill filed for that purpose, would, upon rules established, warrant a bill to set aside an ordinary decree after it has become final.
    2. There can be no foreclosure of a mortgage where original proceedings to that end were dismissed for want of prosecution, and the mortgage 'note is barred by the statute when the new bill is filed.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County] the Hon. Lorin C. Collins. Judge, presiding.
    Messrs. Mason Brothers and Mr. Henry B. Mason, for appellant.
    Mr. Joseph H. Barker, for appellees.
   Gary, J.

June 24, 1887, there was pending, and had been for nearly five years on the chancery side of the Circuit Court, a foreclosure suit, of the above title, in which, after it had been put at issue, nothing had been done. The parties are relatives and the suit involved a family quarrel. The respective solicitors had occasionally talked of bringing about a settlement, and occasionally about trying it some time. On the day mentioned the court called it for trial, nobody answered, though the solicitor of the appellees was present, and the court dismissed the suit.1 ’ The solicitor of the appellant did not learn of the dismissal until August, and then the judge was gone and could not be reached until October. The solicitor of the appellees met the solicitor of the appellant immediately after the dismissal, but said nothing to him about it, and said to a witness, that his reason for silence was in order to have the term of court elapse. There was some evidence as to the order of business in the office of appellant’s solicitor, and the reason why the case was not attended to. There was no evidence of anything done to deceive the solicitor of the appellant, but only an avoidance of anything to put him on his guard. After the suit was dismissed and before the end of the time to which that term of the court may have continued, the statute of limitations barred the note secured by the mortgage. On these facts the appellant filed a new bill, asking the court to reinstate the case, or to foreclose the mortgage, and the court dismissed it for want of equity.

While the court in its discretion might, during the term at which the case was dismissed, have reinstated it, yet when the term had passed it was too late (Kihlholz v. Wolff, 8 Ill. App. 371, Danforth v. Danforth, 105 Ill. 603.), unless under such circumstances as, on a bill filed for that purpose, would, upon rules established, warrant a bill to set aside an ordinary decree after it has become final. But this is not such a case. Wierich v. DeZoya, 2 Gilm. 385; United States v. Throckmorton, 98 U. S. 61.

The other alternative of relief the appellant asks, upon the argument, that at law a new suit may be brought within one year after a non-suit, if the time limited for bringing the action expired while the suit was pending ; that in this case that time expired during the time that the term of court at which this suit was dismissed might have continued, though such expiration was after the order of dismissal; that in law the whole term is to be considered as but one day; that during the term the order of dismissal might have been set aside, and was therefore not final until the expiration of the term; and that in some ways, as a conclusion from some combination of these postulates, the suit was still pending when the statute of limitations expired, and therefore a new bill is not barred by it. It would be of very dangerous consequence to hold that the suit was still pending during all the period during which the court might revoke its action.

Suppose this mortgage not to have been recorded, and a purchaser of the premises iojia fide, without notice, after the dismissal and during the time that the term of court might have continued; would he have been affected by the mortgage ?

There is no case that answers the question, but in principle, though not in degree, it would seem to be like Eldridge v. Walker, 80 Ill. 270, where it is héld that a purchaser, after a bill is dismissed by a decree on the merits, and before a writ of error is sued out, is not affected by the subsequent reversal of the decree. And see Herrington v. McCollum, 73 Ill. 476. The action of the court was not Jess final and operative as the end of the suit, by being revocable. There was therefore no suit pending when the time limited in the statute for suing on the note expired, and the note being barred, it is conceded no bill to foreclose would lie. Emory v. Keighan, 88 Ill. 482, is but one of the several cases in this State to that effect. Many other questions than those here discussed are suggested by this record, as to the solution of which no inference is to be drawn from this opinion.

Decree affirmed.


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    Matthias Schmidt v. William M. Hughes.

      Malicious Prosecution— Probable Cause— Larceny— Damages— Evidence.

    It is proper in an action for malicious prosecution to admit evidence of damage suffered after the bringing of suit and before trial thereof.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cock County; the Hon. A. H. WatePvMajx, Judge, presiding.

      Mr. George F. Westover, for appellant.
    If appellant was justified in having a strong suspicion of appellee’s guilt, he was justified in causing the arrest.
    The Supreme Court of this State, in an early case (Ross v. Innes, 35 Ill. 487), defined probable cause tobe “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.” This definition was adopted in Chapman v. Cawrey, 50 Ill. 512; Ames v. Snider, 69 Ill. 376; Palmer v. Richardson, 70 Ill. 544; Davie v. Wisher, 72 Ill. 262.
    In a later case the same court modified the definition somewhat, in these words: “Such a state of facts in the mind of
    the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion that the person accused is guilty.” Harpham v. Whitney, 77 Ill. 32. The Appellate Court has recognized the modification, and has held that an instruction to the jury, stating the belief of a prosecutor must be b'ased on facts sufficient to produce in the mind of the prosecutor a conviction of the guilt of the accused, is erroneous; that it is sufficient if the facts are such as to create in a reasonable mind a strong suspicion of guilt. Keep v. Griggs, 12 Ill. App. 511.
    Defendant acted on information of facts sufficient even to convict.
    Defendant missed lumber, and he was told by several persons that they saw plaintiff taking it. Defendant denies the taking. This alone was probable cause for the arrest.
    In Drodin v. Descalso, 66 Cal. 415, it was held that where the defendant was informed by a child eleven years old that she saw the plaintiff stealing, it showed probable cause for the plaintiff’s arrest; and where a third person told the defendant that he saw the stolen property in plaintiff’s possession, it was held sufficient to constitute probable cause for the arrest of the plaintiff. Beenar v. Dunlap, 94 Pa. St. 329.
    If the appellant had probable cause for making the charge against appellee; it matters not whether he also harbored malice against him. Leyenberger v. Paul, 12 Ill. App. 635; McFarland v. Washburn, 14 Ill. App. 369; Chapman v. Cawrey, 50 Ill. 512; Ames v. Snider, 69 Ill. 376.
    Mr. B. M. Munn, for appellee.
    Probable cause is a reasonable ground of suspicion supported by such circumstances as will warrant a reasonable and cautions man to believe the party guilty. Ames v. Snider, 69 Ill. 376; Barrett v. Spaids, 70 Ill. 408; McDaid v. Bevins, 85 Ill. 238.
    The court and jury had the best opportunity to notice the conduct and bearing of appellant as he testified before them, and they could not believe that a man so furious, revengeful and mercenary could be possessed of reason or caution; much less could they believe that appellant caused the arrest in good faith. Mere good faith or belief is not sufficient; it must be a reasonable belief of a prudent man. Bishop v. Bell, 2 Ill. App. 551; Boss v. Ennis, 35 Ill. 487.
    The proof in this case shows an absence of good faith, a want of prudence, and a neglect on the part of appellant to consult a reputable attorney as to what course to pursue. Collins v. Hayte, 50 Ill. 357; Anderson v. Friend, 71 Ill. 475.
    To prove the want of probable cause we have both the positive and negative testimony of appellant himself: “I
    arrested Hughes because he would not pay me my demand of 8100.” “ I did it to get even with him.”
    And it was shown by his own testimony that he was actuated by indirect and improper motives. Splane v. Byrne, 9 Ill. App. 392.
   Garnett, P. J".

The judgment of the court below is assailed because appellee, the plaintiff, was permitted to introduce evidence of damage which he claimed to have suffered after the suit was brought.

The action was for malicious prosecution, the declaration charging appellant with causing appellee’s arrest on a charge of larceny. The evidence complained of tended to show that after the suit was commenced and before the trial the plaintiff was unable, on account of the charge made against him by defendant, to procure steady employment, as he had formerly done, in his trade as plasterer and bricklayer. Sutherland, in his work on Damages, Vol. I, p. 187, says: “ It is not essential, however, that all the injurious effects of the act which constitutes the cause of action, should have been developed and suffered before suit; it is immaterial to the right to recover for them, when the effects manifest themselves with reference to the time of bringing suit. * * * The actual effects done to the time of the trial are provable.” See also Cooper v. Bandall, 59 Ill. 321.

There was evidence tending to support the verdict on the matei’ial points of inquiry, and we fail to discover that it so decidedly preponderates in favor of the appellant on the question of probable cause, as to require interference by this court. There is no error and the judgment is affirmed.

Judgtnent affirmed.


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    Ossian Guthrie et al. v. Patrick Doud.

      Injunctions—Collection of Judgment—Injury to Real Property—Flow-age—Evidence.

    Upon a bill perpetually to enjoin the collection of a judgment for damages arising through the obstruction of a watercourse, the same being based upon the alleged perjury of certain witnesses, mistakes of others, and divers remarks and offers alleged to have been made by the plaintiff since the judgment, this court holds that the same should not be disturbed, the evidence in question having been presented and considered on the trial of the cause.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.

      Mr. C. M. Hardy, for appellants.
    Mr. F. W. Becker, for appellee.
    Assuming that the allegations of perjury are sufficient, it does not follow that a court of chancery will grant a new trial on that ground; for, as is said in Woodside v. Morgan, 92 Ill. 273, “ Were a court of chancery to entertain bills for a new trial at law on the allegation of one party that the other had sworn falsely, the occasions would be numerous for applications of the present kind, under a practice where parties testify in their own cases, and their conflicting testimony on trials is so frequently witnessed; ” or, as is said in Fuller v. Little, 69 Ill. 229, “ Applications to a court of chancery for a new trial, after a verdict at law, are very rare in modern times, since courts of law exercise the same jurisdiction, and to the same liberal extent; and such trials are watched by equity with extreme jealousy.”
    It should appear in such an application that the applicant has been guilty of no laches, and that he had no opportunity of showing his defense in the proper forum and at the proper time. Blackburn v. Bell, 91 Ill. 434; Yates v. Monroe et al., 13 Ill. 212.
    As complainants knew of the alleged perjury before the termination of the last trial, they had abundant opportunity to make it known upon their motion for a new trial. If it was one of the grounds relied on for a new trial it is res adjudicaba/ for it was presented to a tribunal equally as competent to determine the question of perjury and render assistance as a court of equity; and if that tribunal passed upon it and its”decision was affirmed by the Appellate and Supreme Courts, the decision is final. It can not be reviewed in equity, which does not sit as a court of errors. High on Inj., Sec. 130. If, on the other hand, the point was not made on the motion for a new trial, then the appellants were guilty of such laches as to preclude them now from raising the point; for a court of equity will never be called into activity to remedy the consequences of laches, of neglect, or the want of reasonable diligence. Kersey v. Rush, 3 Del. Ch. 339.

      As to the perjurous testimony of the Bonds, the bill is defective in not being supported by other oaths than those of complainants. Opon the trial there was the sworn statement of one party opposed to that of the other; there is no more than that now appearing in this case. Fuller v. Little, supra. The names of witnesses who would swear to the contrary should be given, and their affidavits as to what they would swear to on another trial should be annexed to the bill. Ibid.
    The bill is further defective in showing no new evidence of a conclusive or decisive character ; what it shows, if any, is merely cumulative. Woodside v. Morgan, 92 Ill. 273.
   Gary, J.

The record in this case shows that September 7, 1880, the appellee sued the appellants in the Superior Court for injuries to his property, which he alleged he had suffered from the obstruction by the appellants of a watercourse. That, after four trials, with varying results, the appellee obtained a judgment for $1,200, which, after passing through all the courts to which the appellants could take it, stands affirmed. The present case is a bill in chancery filed by the appellants, asking that the collection of that judgment be forever enjoined, and for other relief.

There is an original bill and an amendment thereto, the original being based on allegations of perjury in the testimony of some witnesses, and mistake in that of others, and upon observations which the appellants have made since the judgment, as to the effect of the alleged obstructions upon the course of the water, and the amendment upon offers by the appellee, since the judgment,.to sell his lands at high prices, inconsistent with his-claim that it has been damaged. The allegations of the bill are minute, running into particulars as to the perjured or mistaken testimony to a length not consistent with the object of a judicial opinion to imitate.

That the appellants are not entitled to the relief they ask, is so firmly settled by authority, that it is difficult to feel impressed that the appellants have any hope of it. Even after one trial only, as to transitory matters, not physical features upon the face of the earth open to the observation of

every spectator who chooses to watch the phenomena, the doctrine is well settled that the court (of chancery) will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed.” United States v. Throckmorton, 98 U. S. 61. A great many cases are there cited, showing the application of the rule under a great variety of circumstances; among them are: Smith v. Lowry, 1 John. Ch. 320; Tovey v. Young, Pr. Ch. 192; Bateman v. Willoe, 1 Scho. & Lef. 201; Greene v. Greene, 2 Gray, 361. So in Galena, etc., v. Ennor, 116 Ill. 55, the Supreme Court of this State say: It can not be allowed as a ground for setting aside a judgment that there was false testimony given on the trial.” P. 63. The doc. trine is recognized and applied in Brown v. Luehrs, 95 Ill. 195, and there Seward v. Cease, 50 Ill. 231, which comes nearest to being an authority for appellants of any case, perhaps, in the books, is explained if not weakened. .

f/ If this attempt was successful, why next year might not the appellee file his bill to set aside the decree upon this, alleging that such decree was obtained by perjury, and thus the parties alternate in their charges and counter charges without •limit? Ho claim oí originality is made on this query, as it is in some of the cases cited. The established law is against the appellants, and the decree dismissing the bill is affirmed.

Decree affirmed.


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    Michael T. Coughlin v. The Gutta Percha & Rubber Manufacturing Company.

      Sales—Labor Rendered—Compensation—Liquidation of Accounts— Interest—Evidence.

    1. A creditor may bring suit for the recovery of money due and unpaid without waiting for .the time to arrive when the debtor promises that payment shall be made.

      2. Interest may be collected upon a balance ascertained to be due on a liquidation o£ accounts.
    3. The term “liquidation” does not necessarily imply inutuil accounls.
    4. In an action brought to recover a sum claimed to be due for goods furnished and labor rendered, this court holds that a question involving the competency or admissibility of the testimony o£ the book-keeper of plaintiff in relation to the contents o£ the bill left with the defendant, to produce which no notice had been given, can not primarily be raised herein.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Cameron & Hughes, for appellant.
    Messrs. Wilber, Eldridge & Clark, for appellees.
    The statute provides that interest shall be allowed on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance.
    This account was liquidated when it was presented to Mr. Coughlin for payment, and he agreed to pay the same.

      “ Where a debtor on the presentation of his account admits its correctness, and promises to pay the same, this will render it liquidated, and it will draw interest thereafter at the rate of six per cent, per annum.” Haight v. McVeagh, 69 Ill. 624.
    The Supreme Court of the Hnited States, in construing the interest laws of Illinois, say:
    “A sale of goods without a term of credit given is liquidated when contracted, and after the account is presented and impliedly admitted, the defendants are in default and chargeable with interest.” Cooper v. Coate, 21 Wallace, 105.

    Statements of the account between tlie parties had been sent to Coughlin, before the witness, Brown, presented one to him in person, and no objections were ever offered ; this silence should be regarded as an acquiescence of the justness of the account, and it would be liquidated from that time. Wiggins v. Burkham, 19 Wallace, 129.
    “A debt is liquidated when it is certain what is due, and how much is due.” Clark v. Dutton, 69 Ill. 521.
   Gary, J.

This was an action of assumpsit, upon the common counts, tried by the court without a jury.

The manager of the business of the appellee, in Chicago, testified that they had supplied the appellant with goods and done work for him. The bookkeeper testified that he presented to, and left with, the appellant a bill for the amount the appellee claimed, $247, and that the appellant said he would pay it when he got his money from the county, which he thought would be in about fifteen days. Ho question was made in the case as to the competency, or admissibility of the testimony of the bookkeeper in relation to the contents of a bill left with the appellant, and to produce which no notice had been given, and no such question could now be made here.

The effect of the testimony of both witnesses put together is, that the parties had dealings with each other, and "that the appellant acknowledged that, upon those dealings, he owed $247. The appellees were under no obligation to wait the fifteen days for the payment of money due, and upon a balance ascertained to be due on a liquidation of accounts, the statute allows interest. It is not necessary that there be mutual accounts for liquidation. Haight v. McVeagh, 69 Ill. 624.

■ These views dispose of the points made by the appellant, and the judgment is affirmed.

Judgment affirmed.


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    G. Bessey v. J. B. Ruhland.

      Practice—Appeals—Dismissal of—Preliminary Call—Justices—Sec. 68, Act of 1872—-Reinstatement.

    1. In the absence iron: the record of a rule of court warranting such action, an appeal should not be dismissed on a preliminary call.

      2. This court holds the clause in Sec. 68, act of 1872, requiring a written appearance ten days before the term by the appellee, to apply only to appeals taken by filing a bond with the clerk, and not to those taken by filing a bond with the justice.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Mr. Elbridge Hanecy, for appellant.
    At the time the appeal was dismissed in this case, appellee JEfuhland had never filed his appearance. In Lehman v. Freeman, 86 Ill. 208, the court says: “As a general rule of practice, a party in court can not force his adversary to act until he himself is in a condition to be forced to proceed.”
    The Singer Manufacturing Company v. May, 86 Illinois, page 398, was an appeal from the justice of the peace, and the appeal was perfected before the justice. The court says at the bottom of page 400: “And the case appearing on the trial calendar, the presumption is that she must have entered her appearance to have it placed there, and, if so, that would be a sufficient appearance if more than ten days before the term. (The italics are ours.) And as the want of a proper appearance was assigned as one of the reasons for setting aside the verdict, and the bill of exceptions fails to show the appearance was not in time, we must presume it was, and the court acted properly in disallowing that as a ground for setting aside the verdict.” See also Hooper v. Smith, 19 Illinois, page 53.
    In the case of MeVey v. Huott, 11 Ill. App. 203, the court says: “It will be observed that not only must the appearance of the appellee be entered in writing, but the paper by which such entry of appearance is made must be filed with the papers in the case; the design of these provisions is quite obvious. It is not merely to bring the appellee within the jurisdiction of the court, by a voluntary appearance, but also to place the evidence of such appearance on file, where it will be seen and known by the other party, so that he, for at least ten days before the term, may have notice of the fact that the canse is in a condition to be forced to trial.”
    The court also holds, in this case, that the payment of the appearance fee is a condition precedent to the right of appellee to enter his appearance in the case. See also Norton v. Allen, 12 Ill. App. page 592; see also Odd Fellows Benevolent Society v. Alt, 12 Ill. App. page 570; The Chicago Dredging and Dock Company v. McCarty, 11 Ill. App. page 552; McMullen v. Graham, 6 Ill. App. page 239; Pratt v. Bryant, 2 Ill. App. 314. Section 68, Chap. 79, Justices, etc., Revised Statutes of Illinois, is as follows: “In case the appeal from the justice of the peace is perfected by tiling the papers and transcript of judgment ten days before the commencement of the term of the court to which the appeal is taken, the appearance of the appellee may be entered in writing and filed among the papers in the case; and if so entered ten days before the first day of the term of court, the case shall stand for trial at that term.” That is the only law that authorizes the court to dismiss the appeal for want of prosecution; it prescribes what shall he done; that the appearance shall be in writing and filed among the papers; under that section the appearance of the appellee must be in writing, and filed among the papers in the case/ and if so entered ten days before the first day of the term, the case shall stand for trial, etc. Until that has been done the court has no jurisdiction of the persons, and can not dispose of the case; this statute applies as well to appeals perfected before the justice, as to cases where the appeal is perfected in the court above.
    Mr. D. M. Kirton, for appellee.
   Gary, J.

This was an appeal to the Circuit Court, by the then defendant, now appellant, from a judgment of a justice of the peace, taken by filing the appeal bond with the justice. The appeal was taken December 1, 1882, but the papers were not filed in the Circuit Court until September 28,1887. May 7, 1888, on a first or preliminary cal], on motion of the appellee, and without any appearance in the case by the appellant, the appeal was dismissed, and costs and damages adjudged against the appellant. At the same term he moved the court to set aside the judgment and reinstate the case, which motion, after being continued, was denied at the July term. The appellant excepted and brings this appeal.

It is quite sufficient to sustain the error first assigned, “ the court erred in dismissing the appeal on a preliminary or first call,” to cite the cases Killian v. Clark and Titley v. Kaehler, 9 Ill. App. 426 and 537, which hold that unless the record shows some rule of court, such as received the sanction of the Supreme Court in Hinkley v. Dean, 104 Ill. 630, the action of the Circuit Court is erroneous. If the question were here an original one, my view of the law would be, that all presumptions are in favor of the correctness of the judgment of the Circuit Court, until the error is made to appear on the record, and that, as this court has judicial knowledge that such a rule, under the authority of the case last cited, would justify the action of the court, its existence would be presumed, unless the record showed the negative. Teerney v. People, 81 Ill. 411; Herman v. Pardridge, 79 Ill. 471; Morton v. People, 47 Ill. 468; Reiman v. Ater, 88 Ill. 299; Schmidt v. Braley, 112 Ill. 48.

But I do not regret finding that assignment of error thus sustained and that on the principle, stare decisis, they govern the present case. Hopkins v. McCann, 19 Ill. 113; Frink v. Darst, 14 Ill. 304. My reasons for being satisfied with the result are forcibly stated by Mr. Justice McAllister in the one, and Mr. Justice Bailey in the other of those cases in 9 Ill. App.

This opinion might end here with an order reversing the judgment, but the principal question made by the appellant and of most general interest, is upon Sec. 68 of the act of 1872, concerning justices. It is true that in Hayward v. Ramsey, 74 Ill. 372, the Supreme Court, as a ground for their decision that the appeal must be perfected ten days before the term, applied that part of this section which relates to filing the papers and transcript ten days before tbe term, to appeals taken by filing the bond with the justice. In that case the appeal was taken before the justice, after the term had begun.

There is no statutory provision except in Sec. 6S, and before 1861 there was none at all, by which the time when an appeal case shall or should get into the Circuit Court, to be in order for trial at any term, is or was fixed. In Boyd v. Kocher, 31 Ill. 295, before the adoption of the present Sec. 68, where the papers were filed during the term, though the appeal was taken before the justice six weeks before, it was held that it was rightly dismissed for want of prosecution, on motion of the appellee.

In Allen v. Monmouth, 37 Ill. 372, after the present Sec. 68 was in force, it was held that an appeal taken before the justice, which had been pending in the Circuit Court nearly a year and a half, but in which the appellee had never entered any appearance, been "summoned, or anything been done as a substitute or equivalent for such appearance, was rightly dismissed when called in its order for trial, the appellant not being present to prosecute it. It is necessary to a full understanding of that case to get the facts from the briefs of counsel, but the decision is that the law applied in 31 Ill. in its application to this case in 37 Ill. was not changed. The opinion is not very clear, but Mr. Justice Breese would seem to have had in his mind the same point that Mr. Justice Walker decided in 74 Ill., that the law of 1861, now Sec. 68, allows ten days for preparation for trial after the court has acquired jurisdiction of the parties.” There is no case in which the clause of Sec. 68 relating to the appearance in writing by the appellee has been applied, either by the Supreme or Appellate Courts, to an appeal taken by filing a bond before the justice. It is a singular fact that until 1849, no mode was provided for getting the appellee into court, when the appeal bond was filed with the clerk, except by actual service of summons as now provided in Sec. 65.

The law of 1849 made the provision for two nihils as now in Sec. 67. Then came the law of 1861, now Sec. 68, allowing an appearance in writing, and the only purpose of that was, as an alternative or substitute for the other modes of obtaining jurisdiction of the appellee, when the bond was filed with the clerk. The right of parties to proceed is reciprocal. Hooper v. Smith, 19 Ill. 53. (The report does not show that the appeal in this case was taken by filing the bond with the clerk, but Boyd v. Kocher, 31 Ill. 295, explains that it was taken under then Sec. 61, now 65.) It has never been supposed that on an appeal taken by filing a bond with the justice, the appellant could not proceed, whether the appellee ever came or not. Reiman v. Ater, 88 Ill. 299; Fix v. Quinn, 75 Ill. 232. And as in such case the appellee may be pushed, he may push.

There is, besides the decision in 37 111., the recognition or assumption of the rule that Sec. 68, so far as relates to a written appearance, does not apply to appeals taken by filing the bond with the justice, in Camp v. Hogan, 73 Ill. 228, and Burns v. Nichols, 89 Ill. 480, if not other cases, as in Singer v. May, 86 Ill. 398, and Hohmann v. Eiterman, 83 Ill. 92. In truth, both legislation and decisions are in a very unsatisfactory condition on this subject, but the rule of this court is, that the clause in. Sec. 68 requiring a written appearance ten days before the term, by the appellee, only applies to appeals taken by filing a bond with the clerk, and does not apply to appeals taken by filing a bond with the justice.

Meversed and remanded.