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EEPORTS

OF

CASES AT LAW AND IN CHANCERY

ARGUED AND DETERMINED IN THE

SUPREME COURT OF ILLINOIS.

By NORMAN L. FREEMAN,

REPORTER.

VOLUME LIT.

Containing the remaining Cases decided at the January Term,

1870, those op the June Term, 1870, some omitted Cases

of the June Term, 1869, and a portion op the

Cases decided at the September Term, 1870.

PRINTED FOR THE REPORTER,

SPRINGFIELD:

1872.

i

Entered according to Act of Congress, in the year 1872, by

NORMAN L. FREEMAN, In the office of the Librarian of Congress, at Washington.

Journal Company.

Stereotypers,

Printers and Binders,

Springfield, III.

JUSTICES OF THE SUPREME COURT

DURING THE TIME OF THESE REPORTS, INCLUDING THE JUNE TERM, 1870.

Hon. SIDNEY BKEESE, Chief Justice*

Hon. CHARLES B. LAWRENCE, Chief Justice*

Hon. CHARLES B. LAWRENCE, "|

Hon. PINKNEY H. WALKER,

Hon. SIDNEY BREESE,

Justices.

JUSTICES OF THE SUPREME COURT,

COMMENCING WITH THE SEPTEMBER TERM, 1870.t

Hon. CHARLES B. LAWRENCE, Chief Justice. Hon. PINKNEY H. WALKER, Hon. SIDNEY BREESE, Hon. JOHN M. SCOTT, Hon. WILLIAM K. McALLISTER,

Hon. ANTHONY THORNTON, Hon. BENJAMIN R, SHELDON,

*The term of office of Mr. Chief Justice Breese expired on the sixth day of June, 1870, and thereupon Mr. Justice Lawrence, being the oldest Justice in commission, became Chief Justice. On the same day, Mr. Justice Breese was re-elected, in the First Grand Division, for the term of nine years.

+The new constitution, adopted July 2,1870, provides that "the Supreme Court shall consist of seven Judges," and the State was divided into seven judicial elec- tion districts, and provision made for the election of four additional Judges. Accordingly, "at the time of voting on the adoption of this constitution," the Hon. Anthony Thornton was elected in the second district ; Hon. John M. Scott in the third; Hon. Benjamin R. Sheldon in the sixth, and Hon. William K. McAllister in the seventh, each for the term of nine years. The Chief Justice will continue to act as such until the expiration of the term for which he was elected, after whieh the Judges will choose one of their number Chief Justice.

OFFICERS OF THE SUPREME COURT.

ATTORNEY GENERAL,

WASHINGTON BUSHNELL, Esq.

REPORTER,

NOEMAN L. FEEEMAN.

CLERK IN THE FIRST (SOUTHERN*) GRAND DIVISION,

K. A. D. WILBANKS, Mt. Yernon.

CLERK IN THE SECOND (CENTRAL) GRAND DIVISION,

WILLIAM A. TUENEY, Springfield.

CLERK IN THE THIRD (NORTHERN) GRAND DIVISION,

WOODBTJEY M. TAYLOE, Ottawa.

*Ttae new constitution provides that " the present grand divisions shall be pre- served, and be denominated Southern, Central and Northern, until otherwise provided by law."

TABLE OF CASES

REPORTED IN THIS VOLUME.

PAGE.

A Allison el al. v. Commissioners of

Highways 170

Arter et al. v. The People, use, etc. 228 Atchison ads. Taylor 196

B

Badclely ads. Toledo, Wabash &

Western Railway Co 19

Bailey v. Godfrey et al 507

Barnett v. The People 325

Beatty et al. ads. Martin 100

Becker et al. v. Quigg 390

Bell v. Dart 526

ads. Hubbard 110

Bissett v. Bowman 254

Blackledge et al. ads. Hickenbo-

tham etal 316

Blakeman ads. Wiggins Ferry Co. 201 Blan chard et al. ads. Mt. Carbon

Coal & Railroad Co. et al 240

Booth v. Storrs et al 472

Booth et al. v. Hynes et al 363

Bowles, Admx. v. Delaney et al.

Admrs 290

v. Lambert et al. Admrs. . 237

Bowman ads. Bissett 254

Bradley v. Marshall 173

Brooks ads. Esty 379

Buckles v. Harlan 361

Bunn et al. ads. Robbins 48

Burton ads. Mason 349

c

Candee, Swan & Co. v. Deere & Co 439

PAGE.

Carpenter et al. v. Mitchell 126

Chance ads. Wiggins 175

Chase, The People ex rel. v. Ma- coupin County 217

Chicago & Northwestern Rail- way Co. v. Harris 528

v. Simonson et al. Admrs. 504

Clarke v. Johnson 296

Collins et al v. Waters. 485

Comfort v. The People 404

Commissioners of Highways ads.

Allison et al 170

Cordray ads. Elder 244

ads. Runnamaker,use, etc. 303

County Court of Macoupin

County ads. The People ex rel. 217 County Court of Washington County, use, etc. ads. McEl-

hanon 163

Curry et al. v.The People, use, etc. 263

Cutler, The People ex rel. v. Ford 520

D

Dart ads. Bell 526

Deere & Co. ads. Candee, Swan

&Co 439

Delaney et al.Admrs.ads. Bowles,

Admx 290

Dewey.fl^s.Willoughby, use, etc. 266

Dorau v. Gillespie 366

Durham v. Goodwin 469

E Eastburn ads. Toledo, Peoria &

AVarsaw Railway Co 381, 385

Elder v. Cordrav 244

table' of cases reported.

PAGE.

Elliott v. Levings & Co 213

Emporium Real Estate & Manu- facturing Co. v. Emrie et al. . . 345 Emrie et al. ads. Emporium Real Estate & Manufacturing Co. . 345

Esty v. Brooks 379

Ewing et al. ads. Mugge 236

F

Fahs et al. v. Roberts et al 192

Faulk v. Kellums 188

Fililenburg ads. Holmes 203

Fike^s. Sale 292

Fischer v. Fischer 231

Foltz v. Stevens 180

Ford ads. The People ex ret. Cut- ler 520

Forgue ads. Kerr 482

Forth et al. v. Town of Xenia. . 210 Frankenberg et al. ads. Illinois

Central Railroad Co 88

Freeman v. The People 162

Freeman et al. v. The People. . . 153

Fritz v. Joiner et al 101

Frost v. Woodruff 155

Garfield v. Huls et al 427

Garretson, impl. etc. v. Strawn . . 402 Gerlach v. Levings & Co.. ..... 213

Gill v. Skelton 158

Gillespie ads. Doran 366

Gillmore ads. Russell et al 147

Gilmer, Town of, ads. Pearce. . . 25

Godfrey et al. ads. Bailey 507

Goe et al. ads. Horner 285

Goodwin ads. Durham 469

Gochenour ads. The People ex

rel. Ringe et al 123

Green ads. The People 280

H

Haines et al. v. Haines. 74

Hamilton v. Singer Manufac. Co. 370

Harlan ads. Buckles 361

Harris ads. Chicago & North- western Railway Co 528

Harsh ads. Lewis et al 383

PAGE.

Hartford Fire Insurance Co. v.

Walsh 164

Hayes v. Ottawa, Oswego & Fox

River Valley Railroad Co. . . . 373

Heinrich ads. Pensoneau 271

Herr, etc. ads. Illinois Central

Railroad Co 356

Hickenbotham et al. v. Black- ledge et al 316

Hodges ads. Shaeffer 337

Holmes v. Fililenburg 203

Horner v. Goe et al 285

Howett v. Selby et al 151

Hubbard v. Bell 110

Huddle v. Martin et al 258

Huls et al. ads. Garfield 427

Hummert v. Schwab et al 142

Hyde et al. ads. Titsworth 386

Hynes et al. ads. Booth et al 363

I Illinois Central Railroad Co. v.

Frankenberg et al 88

v. Herr, etc 356

v. McClellan 58

v. Parks 294

v. Slatton, Admx 133

v. Weaver 319

J

Jackson ads. Mercer 397

Johnson ads. Clarke 296

v. Wilson 419

Joiner et al. ads. Fritz 101

K

Kellums ads. Faulk. 188

Kerr v. Forgue 482

King, Admr. ads. Wooters 343

Klingle v. Ritter 140

Knockamus v. Shepard et al. ... 500

Kcerner et al. ads. Reichert 306

L Lamar Insurance Co. of New

York v. McGlashen et al 513

Lambert et al. Admrs.ads.Bowles,

Admx 237

Larkin et al. ads. Wead 489

TABLE OF CASES REPORTED.

PAGE

Law ads. Strother 413

Levings & Co. ads. Elliott 213

ads. Gerlach 213

Lewis et al. v. Harsh 383

Lewis et al. v. Swift 436

Little ads. Rouutree 323

Logsdon v. Spivey, Adrar 104

M Macoupin County, County Court

of, ads. The People ex rel.Clmse 217 Madden et al. ads. Rose Clare

Lead Co 260

Maguire et al. v. Town of Xenia 299

Marshall ads. Bradley 173

Martin v. Beatty et al 100

Martin et al. ads. Huddle 258

Martin et al. v. The People 225

Mason v. Burton 349

Mauck et al. v. Mauck 281

McClellan ads. Illinois Central R.

R.Co 58

McElhanon el al. v. County Court

of Washington county, use etc. 163 McGlashen et al.ads.Lo.msir Insur- ance Co. of New York 513

McGoon et al. v. Shirk 408

Mechanicsburg, Town of, Presi- dent andTrustees of ^.Meredith 84

Mercer v. Jackson 397

Meredith ads. The President and Trustees of Mechanicsburg. . . 84

Miller ads. School Directors 338

Mingia v. The People 274

Mitchell ads. Carpenter et al 126

Monell v. Scherrick et al 269

Mount Carbon Coal & Railroad

Co. etal. v. Blanchard et al 240

Mugge v. Ewing etal 236

Musgrave v. Musgrave 186

1ST

Nance et al. ads. Rainey et al 29

Nashville, City of, v. Weiser et al. 245

o

Oetgen v. Ross et al 79

Ottawa,Oswego & FoxRiverVal-

ley Railroad Co. ads. Hayes. . 373 Oxley et al. v. Storer 159

PAGE.

:p

Parks ads. Illinois Central Rail- road Co 294

Pearce v. Town of Gilmer 25

Pensonean v. Heinrich 271

People ads. Barnett 325

ads. Comfort 404

ads. Freeman 162

ads. Freeman et al 153

v. Green 280

ads. Martin et al 225

ads. Mingia 274

ads. Williams 422

People use etc. ads. Arter et al. . 228

ads. Curry et al 263

People ex rel. Cutler v. Ford 520

ex rel. Ringe et al. v. Goche-

nour 123

Chase tf.The CountyCourt

of Macoupin County et al 217

The Attorney General v.

Salomon 39

Phillips ads. Skeels 309

Q

Quigg ads. Becker etal 390

Rabbermann v. Wiskamp 179

Rainey et al. v. Nance et al 29

Reeves et al. v. Reeves. . - 332

Reichert v. Kcerner etal 306

Ringe et al. The People ex rel. v.

Gochenour 123

Ritter ads. Klingle 140

Robbins v. Bunn et al 48

Roberts et al. ads. Fahs et al 192

Rockwell et al. v. Servant et ux. . 251 Rose Clare Lead Company v.

Madden et al 260

Ross et al. ads. Oetgen 79

Roth v.' Smith 431

Roiintree v. Little 323

Runnamaker, use, etc. v. Cordray 303

Russell v. Russell et al 250

Russell et al. v. Gillmore 147

S Salea. Fike 293

TABLE OF CASES REPORTED.

PAGE

Salomon ads. The People ex rel.

The Attorney General 39

Scherrick et al. ads. Monell 269

Schmidt ads. Williams 205

Schnebly ads. West et al 523

School Directors v. Sippy 287

a. Taylor 289

v. Miller 338

Schwab et al. ads. Hummer t. ... 142

Selby et al. ads. Howett 151

Servant etux. ads. Rockwell etal. 251

Shaeffer v. Hodges 337

Shepard et al. ads. Knockamus. . . 500

Shirk ads. McGoon etal 408

Simonson et al. Admrs. ads.Chica,-

go & Northwestern R'way Co. 504 Singer Manufac.Co.ads JIamilton 370

Sippy ads. School Directors 287

Skeels v. Phillips 309

Skelton ads. Gill 158

Slatton, Admx. ads. Illinois Cen- tral Railroad Co 133

Smith ads. Roth 431

Southern Illinois Normal Univer- sity, Trustees of, ads. Town of

Tamaroa 334

Spivey, Admr. ads. Logsdon. . . . 104

Stevens ads. Foltz 180

Storer ads. Oxl ey et al 159

Storrs et al. ads. Booth 472

Strawn ads. Garretson, impl. etc. 402

Strother v. Law 413

Sweetland v. Tuthill 215

Swift ads. Lewis et al 436

T Tamaroa, Town of, v. Trustees of Southern Illinois Normal Uni- versity 334

PAGE.

Taylor v. Atchison 196

ads. School Directors 289

Titsworth v. Hyde etal 386

Toledo, Peoria & Warsaw Rail- way Co. v. Eastburn 381

v. Eastburn 385

Toledo, Wabash & Western Rail- way Co. v. Baddeley 19

Tuthill ads. Sweetland 215

Twiss, Admr. ads. Wise, Admr.. 301

¥

Walsh ads. Hartford Fire Insur- ance Co 164

Washington County, County Court of, ads. McElhanon... 163

Waters ads. Collins etal 485

Wead v. Larkin etal 489

Weaver ads. Illinois Central Rail- road Co 319

Weiser et al. ads. City of Nash- ville 245

West et al. v. Schnebly 523

Wiggins v. Chance 175

Wiggins Ferry Company v.

Blakeman 201

Williams v. The People , 422

v. Schmidt 205

Willoughby, use, etc. v. Dewey. 266

Wilson ads. Johnson 419

Wise, Admr. v. Twiss, Admr. . . 301

Wiskamp ads. Rabbermann 179

Woodruff ads. Frost 155

Wooters v. King, Admr 343

X

Xenia, Town of, ads. Forth et al. 210 ads. Maguire etal 299

TABLE OF OASES

COMPRISING THE FORMER DECISIONS OP THIS COURT,

CITED, COMMENTED UPON, OR EXPLAINED,

IN THIS VOLUME.

A PAGE.

Adams ads. Briggs, 31 111. 486 191

Aldrich v. Aldrich, 37 111. 35 51

Allman ads. Vanzant, 23 111. 30 417

Alton & Sangamon Railroad Co. v. Carpenter, 14 111. 190 378

Alvord v. Ashley, 17 111. 370 28

American Express Co. ads. Baldwin, 23 111. 197 95

Ashley ads. Alvord, 17 111. 370 28

Arnold ads. Illinois Central Railroad Co. 47 111. 173 530

B

Baker ads. Unknown Heirs of Langworthy, 23 111. 484 286

Baldwin v. American Express Co. 23 111. 197 95

Baty v. Sale, 43 111. 351 51

Belleville, City of, ads. Griffin, 50 111. 422 248

Benner v. Manlove, 3 Scam. 339 51

Bennett v. Farrar, 2 Gilm. 598 t 51

Berry ads. Dunlap, 4 Scam. 328 396

Blackberry, Town of, ads. Town, 29 111. 137 172

Bledsoe v. Graves, 4 Scam. 382 477

Bliss v. Clark, 39 111. 590 178

Bond et al. ads. Davidson, Admx. 12 HI. 84 191

Bowenacte. Rowe, 28 111. 120 185

Brennanu The People, 15111. 511 331

Brent ads. Rogers, 5 Gilm. 573 51, 325

Briggs v. Adams, 31 111. 486 191

Brill v. Stiles, 35 111. 307 51

Browning v. City of Springfield, 17 111. 143 86

Bullock ads. Hunt, 23 111. 320 194

v. Narrott, 49 111. 62 512

Burnelltf. Robertson, 5 Gilm. 282 438

TABLE OF CASES CITED.

C PAGE.

Caldwell ads. Logansport, Peoria & Burlington Kailroad Co. 38111. 280. . 382

Campbell v. The People, 16 111. 17 426

Carpenter ads. Alton & Sangamon Railroad Co. 14 111. 190 378

Carroll ads. Shipley, 45 111. 285 298

Chicago, City of, v. Starr, Admr. 42 111. 174 484

Chicago, Burlington & Quincy Railroad Co. v. Dewey, 26 111. 255 484

Chicago & Great Eastern Railroad Co. v. Marshall, 48 111. 475 330

Chicago & Rock Island Railroad Co. ads. Porter, 20 111. 407 95

Chittenden v. Evans, 41 111. 251 260

Clark ads. Bliss, 39 111. 590 178

Clement ads. Humphrey, 44 111. 299 410

Coffee ad*. Phillips, 17 111. 154 396

Cogswell ads. Cruikshank, 26 111. 366 156

Cole ads. Toles, 11 111. 563 154

Colley ads. Whetstone, 36 111. 328 410

Commercial Insurance Co. v. Spankneble, 52 111. 53 169

Conkwright v. The People, 35 111. 204 407

Crabtreev. Hagenbaugh, 25 111. 233 260

Crain v. Wright, 46 111. 107 22

Crosby v. Northwestern Manufacturing Co. 48 111. 481 152

Crouch v. Hall, 15 111. 263. 354

Crow ads. Rankin, 19 111. 626 395

Cruikshank v. Cogswell, 26 111. 366 156

Cummings v. The People, 50111. 132 264

Currey ads. Smith, 16 111. 147 86

D

Davidson v. Waldron, 31 111. 120 107

Davidson, Admx. v. Bond et al. 12 111. 84 191

Day ads. Van Buskirk, 32 111. 260 471

Dewey ads. Chicago, Burlington & Quincy Railroad Co. 26 111. 255.. . . 484

Dodge v. Mack, 22 111. 93 108

Dormady v. State Bank of Illinois, 2 Scam. 236 394

Dow, impleaded, etc. v. Rattle, 12 111. 373 191

Dunlap v. Berry, 4 Scam. 328 396

E

Ellis v. Huff, 29 111. 449 396

Erlinger v. The People, 36 111. 458 154

Evans ads. Chittenden, 41 111. 251 260

ads. The People, 18 111. 362 205

F

Farrar ads. Bennett, 2 Gilm. 598 51

Fishback v. Lane, 36 111. 437 178

Forbes v. Hall, 34 111. 167 51

ads. Palmer, 23 111. 302.,. 194

Fox v. Kitton, 19 111. 519 511

Frazier ads. Illinois Central Railroad Co. 47 111. 505 506

TABLE OF CASES CITED.

PAGE.

Frazier v. Laughlin, 1 Gilm. 358 * 154

Frink et al. v. Schroyer, 18 111. 416 24

Funk v. Ryan, 3 Scam. 322 422

o

Oilman ads. McCumber, 15111. 381 100

Gookwin ads. Judson, 37 111. 286 478

Graham ads. Ottawa Gas Light & Coke Co. 35 111. 346 376

Graves ads. Bledsoe, 4 Scam. 382 477

Gray v. McCance, 14 111. 344 51

Green v. Marks, 25 111. 221 178

ads. Morgan, 17 111. 370 28

Griffin v. City of Belleville, 50 111. 422 248

Griswold ads. McLean, 22 111. 220 404

H

Hagenbaugh ads. Crabtree, 25 111. 233 260

Hall ads. Crouch, 15 111. 263 354

ads. Forbes, 34 111. 167 51

Handy ads. Miller, 40 111. 449 273

Hartrunft ads. Yundt, 41 111. 9 260

Harward v. The St. Clair & Monroe Levee & Drainage Co. 51 111. 130. . 243

Haskin ads. Walbaum, 49 111, 315 390

Havely v. Lowry, 30 111. 446 107

Heintz ads. Werner, 17111. 259 1.. 380

Hemenway ads. Tenney, 53 111. 97 38

Herrifordads. Minor, 25 111. 344 107

Hinman v. Rushmore, 27 111. 509 525

Hoag ads. Southworth, 42 111. 446 366

Hobson et al. v. Paine, 40 111. 25 286

Hodgen ads. Preston, 50 111. 56 283

Howe ads. Sargent, 21 111. 148 417

Huff ads. Ellis, 29 111. 449 396

Hull v. Kohlsaat, 36 111. 130 409

Humphreys Clement, 44111. 299 410

Humphreys et al. ads. Southern Bank of St. Louis, 47 111. 227 294

Hunt v. Bullock, 23 111. 320 194

I

Iglehart v. Jernegan, 16 111. 513 330

Illinois Central Railroad Co. v. Arnold, 47 HI. 173 530

v. Frazier, 47 111. 505 506

v. Mills, 42 111. 407 506

v. Morrison et al. 19 111. 136 ♦. 96

v. Tait, 50 111. 48 360

J

Jernegan ads. Iglehart, 16 HI. 513 330

Jones ads. Rockwell, 21 111. 284 253

Judson v. Gookwin, 37 111. 286 478

TABLE OF CASES CITED.

K PAGE.

Kellogg ads. O'Keefe, 15 111. 347 157

Kinzie v. Penrose, 2 Scam. 515 365

Kitton ads. Fox, 19111. 519 511

Knisely v. Parker, 34 111. 482 525

Kohlsaatads. Hull, 36111. 130 409

L

Lane ads. Fishback, 36 111.437 178

Langworthy, unknown heirs of, v. Baker, 23 111. 484 286

Laughlin ads. Frazier, 1 Gilm. 358 154

Lindley ads. Pardee, 31 111. 174 394, 416

v. Smith, 46 111. 524 396

Logan ads. Palmer, 3 Scam. 57 , 394

Logansport, Peoria & Burlington Railroad Co. v. Caldwell, 38 111. 280. 382

Lowry ads. Havely, 30 111. 446 107

Lowry et al v. Wright et al. 15 111. 95. 525

Luster ads. Newsom, 13111. 176 394

Lutz aos. Mixell, 34111. 382 235

Lyon a. Robbins, 46 111. 276 293

M

Mack ads. Dodge, 22 111. 93 108

Manlove ads. Benner, 3 Scam. 339 51

Marks ads. Green, 25111. 221 .„ 178

Marony ads. Stevenson, 29 111. 534 178

Marshall ads. Chicago & Great Eastern Railroad Co. 48 111. 475 330

McCance ads. Gray, 14111. 344 51

McConnell v. Wilcox, 1 Scam. 353 51

McCumberfl. Gilman, 15 111. 381 100

McDowell v. Morgan, 28 111. 528 51

McGhee v. Wright, 16 111.555 + 51

McLeans Griswold, 22 111. 220 404

McLees ads. Seem, 24 111. 192 369

Miller v. Handy, 40 111. 449 273

ads. Illinois Central Railroad Co. 42 111. 407 506

Mines v. Moore, 41 111. 273 380

Minor v. Herriford, 25 111. 344 107

Mixell v. Lutz, 34 111. 382 235

Moffett ads. Wade, 21 111. 110 156

Moore ads. Mines, 41 111.273 380

Morgan v. Green, 17 111. 397 28

ads. McDowell, 28 111. 528 51

v. Peet, 32111.281 471

Morrison et al. ads. Illinois Central Railroad Co. 19 111. 136 96

Mullen ads. O'Connor, 11 111. 57 300

1ST

Narrott ads. Bullock, 49 111. 62 512

Newhall ads. Western Transportation Co. 24 IB. 466 96

TABLE OF CASES CITED. xv

PAGE.

Newsom v. Luster, 13 111. 176 394

Nicollfl. Ogden, 20 111. 323 284

Northwestern Manufac. Co. ads. Crosby, 48 111. 481 152

o

O'Connor v. Mullen, 11 111. 57 300

Ogden ads. Nicoll, 20 111. 323 284

Ohio & Mississippi Railroad Co. v. Shanefelt, 47 111. 497 506

v. Taylor, 27 111. 207 382

O'Keefe v. Kellogg, 15 111. 347 157

Ottawa, Town of, v. Walker, 21 111. 608 244

Ottawa Gas Light & Coke Co. v. Graham, 35 111. 346 376

Paine ads. Hobson etal. 40 111. 25 286

Palmer v. Forbes, 23 111. 302 194

v. Logan, 3 Scam. 57 * 394

Pankey, Admr. v. Raum, 51111. 88 212

Pardee v. Lindley, 31 111. 174 394, 416

Parker ads. Knisely, 34 111. 482 525

Patrick v. Rucker, 19 111. 439. 185

Pearce etal. ads. Wilhite et al. 47 111. 413 212

Peet ads. Morgan, 32 111. 281 471

Penrose ads. Kinzie, 2 Scam. 515 365

People ads. Brennan, 15 111. 511 331

ads. Campbell, 16111. 17 426

ads. Conkwright, 35 111. 204 407

ads. Cummings, 50111. 132 264

ad's. Erlinger, 36 111.458 154

ads. Starr, 50 111. 52 162

People ex rel. Beebe v. Evans, 18 111. 362 205

Stine v. Supervisors of Vermilion county, 47 111. 256 324

Pike County v. The State, 11 111. 202 222

Phillips v. Coffee, 17 111. 154 396

Piatt ads. Schuttler, 12 111. 418 . . . 353

Porter v. Chicago & Rock Island Railroad Co. 20 111. 407 95

Preston v. Hodgen, 50 111. 56 283

Prickett v. Ritter, 16 111. 96 369

Ranking Crow, 19111. 626 395

Rattle ads. Dow, impl. etc. 12111. 373 191

Raum ads. Pankey, Admr. 51 111. 88 212

Reavis v. Reavis, 1 Scam. 242 187

Riley ads. Sidders, 22111. 109.. 365

Rink ads. Slater, 18 111. 527 24

Ritter ads. Prickett, 16 111.96 369

Robbins ads. Lyon, 46 111. 276 293

Robertson ads. Burnell, 5 Gilm. 282 438

TABLE OF CASES CITED.

PAGE.

Rockwell v. Jones, 21 111. 284 253

Rogers v. Brent, 5 Gilm. 573 51, 325

Rowe v. Bowen, 28 111. 120 185

Rucker ads. Patrick, 19 111. 439 185

Rushmore ads. Hinman, 27 111. 509 525

Ryan ads. Funk, 3 Scam. 322 422

S

Salens. Baty, 43111. 351 51

Sargent v. Howe, 21 111. 148 417

Schneider v. Westerman, 25 111. 514 157

School Directors v. Sippy, 54111. 287 289

Schxoy er ads. Fnnketal. 18111.416 24

Schuttler v. Piatt, 12 111. 418 353

Seem v. McLees, 24 111. 192 369

Shaffer®. Sutton, 49 111.506 211

Shanefelt ads. Ohio & Mississippi Railroad Co. 47 111. 497 506

Shipley v. Carroll, 45 111. 285 298

Sidders v. Riley, 22 111. 109 365

Sippey ads. School Directors, 54 111. 287 289

Slater v. Rink, 18 111. 527 24

Smith v. Curry, 16 111. 147. . . 86

ads. Lindley, 46 111. 524 • • • • 396

ads. Whitehall, 24 111. 166 395

Southern Bank of St. Louis v. Humphreys et al. 47 111. 227 294

Southworth v. Hoag, 42 111. 446 366

Spankneble ads. Commercial Insurance Co. 52 111. 53 169

Springfield, City of, ads. Browning, 17 111. 143 86

Starr ®. The People, 50 111. 52 162

Starr, Admr. ads. City of Chicago, 42 111. 174 484

State ads. Pike County, 11 111. 202 222

State Bank of Illinois ads. Dormady, 2 Scam. 236 394

St. Clair & Monroe Levee and Drainage Co. ads. Harward, 51 111. 130. 243

Stephani etal. ads. Voltz et al. 46 111. 54 22

Stevenson v. Marony, 29 111. 534 178

Stiles ads. Brill, 35 111. 307 51

Stine, The People ex rel. v. Supervisors of Vermilion County, 47 111. 256. 224 Supervisors of Vermilion County ads. The People ex rel. Stine, 47 111. 256 . 224 Sutton ads. Shaffer, 49111. 506.. 211

T

Tait ads. Illinois Central Railroad Co. 50 111. 48 360

Taylor ads. Ohio & Mississippi Railroad Co. 27 111. 207 382

Tenney v. Hemenway, 53 111. 97 38

Thatcher®. Thatcher, 17111. 66 187 -

Toles v. Cole, 11 111. 563 154

Town v. Town of Blackberry, 29 111. 137 172

TABLE OF CASES CITED.

PAGE.

Town of Blackberry ads. Town, 29 111. 137 172

Town of Ottawa?;. Walker, 21 111. 608 244

V

Van Buskirk v. Day, 32 111. 260 471

Vanzant v. Allman, 23 111. 30 417

Vermilion County, Supervisors of ads. The People exrel. Stine, 47111. 256. 224

Voltz et al. v. Stepliani et al. 46 111. 54 22

w

Wade v. Moffett, 21111.110 156

v. Wade & Brown, 12 111. 89 394

Walbaumv. Haskin, 49 111. 315 390

Waldron ads. Davidson, 31 111. 120 107

Walker ads. Town of Ottawa, 21 III 608 244

Weiner v. Heintz, 17 111. 259 380

Westerman ads. Schneider, 25 111. 514 157

Western Transportation Co. v. Newhall, 24 111. 466 96

Whetstone v. Colley, 36 111. 328 410

Whitehall v. Smith, 24 111. 166 395

Wilcox ads. McConnell, 1 Scam. 353 51

Wilhite et al. v. Pearce et al. 47 111. 413 22

Wright ads. Crain, 46 111. 107 22

ads. McGhee, 16111.555 51

Wright et al. ads. Lowry etal. 15 111. 95 525

Y

YunU. Hartrunft, 41 111. 9 260

2 — 54th III.

CASES

SUPREME COURT OF ILLINOIS.

SECOND GKAND DIVISION.

JANUARY TERM, 1870.

The Toledo, Wabash & Western Hallway Co.

V. .

John W. Baddeley.

1. Depositions — notary public. In this State depositions in all cases may be taken before a notary public.

2. Notice to take depositions — as to the residence of the witnesses. A notice given by the plaintiff to take his own deposition, to be read in a suit at law commenced in Champaign county, but then pending in Ford county, had the venue of the latter county, and notified the defendant that the deposition would be taken at the residence of the plaintiff, at a place in Champaign county. On the objection that the notice did not show the witness was a resident of a different county from that in which the suit was pending, it was held, as the action was brought in Champaign county, it was a fair infer- ence that was the county of the plaintiff's residence, and it was a county different from the one in which the suit was pending.

20 T. W. & W. E. R. Co. v. Baddeley. [Jan. T.,

Syllabus. Opinion of the Court.

3. Practice — time of objecting to depositions. Objections to depositions should be taken and disposed of before the trial of the cause, so that, if defective, the party taking thern may have an opportunity to remedy the defects, and for such purpose to ask a continuance.

4. Measure of damages — in an action for injuries resulting from negli- gence of defendant. In an action against a railroad company for injuries to the plaintiff, a passenger on a train of the defendants, occasioned by the negligence of the company, the jury may consider, in estimating the dama- ges, whether the mental faculties of the plaintiff were impaired by the accident ; and this is a legitimate subject of inquiry without reference to the question whether the act was wilfully done.

5. And in such case it is competent for the physician who attended upon the plaintiff on the occasion, to testify on behalf of the plaintiff as to his opinion in respect to the effect of the injuries received by the plaintiff upon his future condition.

6. Negligence — instruction. In an action to recover for injuries received by reason of the negligence of the defendant, in a case where the latter should exercise the highest degree of care, the jury may properly be instructed that the defendant should have exercised extraordinary care, as that does not differ from the phrase, greatest care — utmost care — highest degree of care.

7. Carriers of passengers — proper time to leave a railroad train. Bail- road companies must afford a reasonable time to passengers, whether young or old, to leave the cars in safety, and if the time tables do not allow suffi- cient time for this purpose, and an injury is thereby occasioned, the company wUl be liable therefor. But the age or decrepitude of a passenger will not determine the time of the stoppage of a train on its arrival at a station.

Writ of Error to the Circuit Court of Ford county ; the Hon. A. J. Gallagher, Judge, presiding.

The opinion states the case.

Mr. A. E. Harmon and Mr. Wm. E. Nelson, for the plain- tiffs in error.

Messrs. Langley & Wolfe, for the defendant in error.

Mr.CHiEF Justice Breese delivered the opinion of the Court:

This was an action on the case, against a railroad company, to recover damages for an injury to the plaintiff, a passenger

1870.] T. W. & W. R. R. Co. v. Baddeley. 21

Opinion of the Court.

on the train, occasioned by the negligence of the company, and a verdict for plaintiff of f 10,000, one-half of which was remit- ted by the plaintiff, and judgment entered for $5000.

The defendants bring the record here, by writ of error, assigning various errors.

The first relates to the refusal of the court to exclude the deposition of the plaintiff, for the reason, it was taken before a notary public. This is not a valid objection to the deposition, inasmuch as, by the third section of Ch. 76, entitled, " oaths and affirmations," express power is given notaries public, " to take affidavits and depositions concerning any matter or thing, process or proceeding, depending or to be commenced in any court or before any justice of the peace, or on any occasion wherein such affidavits or depositions are authorized or required by law to be taken." R. S. 393.

That this power is plenary, so far as notaries public are con- cerned, can not be questioned, and the practice has been uniform and unchallenged throughout the State, to take depositions before such an officer.

Another reason for excluding this deposition was urged, that the notice to take it did not show that the witness was a resi- dent of a different county from that in which the court was held.

The notice, as appears by the record, lias the venue, Ford county, that being the county in which the suit was pending and to be tried, and notifies defendants that the deposition will be taken at the residence of the plaintiff, in Champaign City, Illinois, on a day named. This is a sufficient compliance with the statute, as it gives " time and place." As the action was brought in Champaign county, the inference would be fair, that was the county of plaintiff's residence, and it is a county differ- ent from the one where the suit was pending.

The objections to particular interrogatories, and the answers thereto, were properly disposed of by the court ; and here we may say, it is not the proper practice to make objections to depositions on the trial of a cause, as these appear to have been

22 T. W. & W. R. E. Co. v. Baddeley. [Jan. T.,

Opinion of the Court.

made. They should be made and disposed of before the trial, in order, if defective, the party taking them may have an opportunity to remedy the objections, and, for such purpose, ask a continuance.

As to the merits of the case, the testimony is very conflict- ing, indeed, on the strength of which, the jury would have been warranted in coming to a conclusion against the plaintiff, and, had they done so, the court would hardly be justified in setting the verdict aside as being against the weight of evidence. There are numerous cases in this court to that effect.

As this court said in Grain v. Wright, 46 111. 107, and in many other cases, where the evidence is conflicting, it is the duty of the jury to reconcile it so far as it can reasonably be done, and so far as it is irreconcilable to reject such as they may believe, from all the circumstances, was the result of mistake or misap- prehension, or from other causes is not reliable, and to give credit to such as they believe to be true. Juries see the wit- nesses, and from their manner, their intelligence and opportu- nities of being informed, can determine the weight their evidence should receive, and unless it is clear the jury have mistaken the weight of the evidence, and their verdict is manifestly against it, this court will not interpose to set aside a verdict and reverse the judgment rendered upon it. Voltz et al. v. Stephani et al. ib. 54, is to the same effect, and it has long been the settled doctrine of this court.

We can not say, in this case, the jury have mistaken the weight of the evidence, and consequently can not disturb the verdict.

An objection was made by defendants on the trial, to a ques- tion to this effect, put to the attending physician of plaintiff : Have these injuries affected the mind of the plaintiff?"

It is insisted by defendants, that, as the act was not willfully done, the mere mental suffering resulting from it forms no part of the actionable injury, citing a note in 2 Greenleaf on Ev. sec. 267. The authority referred to by the author of that treatise is Flemington v. Smithers, 2 Car. and Payne, 292. In

1870.] T. W. & W. R. R. Co. v. Baddeley. 23

Opinion of the Court.

the text, the author says : Injuries to the person or to the reputation, consist in the pain inflicted, whether bodily or mental, and in the expenses and loss of property which they occasion; and the jury, in estimating damages, may consider, not only the direct expenses incurred by the plaintiff, but the loss of his time, his bodily suffering, and if the injury was willful, his mental agony also.

It will be perceived the question put has no reference to this effect upon the mind. Mental suffering, such as a person is supposed to undergo when writhing under the infliction of a willful injury, is not involved in the question. The answer of the witness shows he did not so understand it, for he says : " Yes, sir, so much so, he is almost incapacitated from doing anything at all ; at this time he can not recollect anything more than ten minutes ; at times he loses his mind entirely." The effort was to show by this witness the shock to plaintiff's system by the fall, and consequent amputation of his arm, was so great as to deprive him, in a great measure, of mental power, and this was a legitimate subject, of inquiry. In the opinion of this witness, the injury was permanent, and of the most serious and distressing character.

This question was followed by another, to which objection was made. It was this : " What will be the effect of these injuries on his future condition ?" The answer was, " I think it will result in death before many months ; he may live one year." ,

Defendants insist that no man, physician or otherwise, can tell what the future condition of an injured person will be. This may be true, and this physician did not pretend to say what his future condition would certainly be — he merely expressed an opinion on the facts, on the medical knowledge he had, and of physiology. He was a physician of years' prac- tice, and must have been quite ignorant if he could not form an opinion on the probable effect of such injuries on the human system. It may be he was mistaken, but his opinion on the subject was proper for the consideration of the jury.

24 T. W. & W. E. R. Co. v. Baddeley. [Jan. T.,

Opinion of the Court.

All the evidence of this character objected to by defendants was admissible under the declaration, to the benefit of which the plaintiff was entitled. 1 Ch. PL 398 ; Frink et al. v. Sehroyer, 18 111. 416 ; Slater v. Rinh, ib. 527, and many other cases to the same effect.

An objection is made to the instructions given for the plain- tiff, especially the second, in which the jury are told these com- panies must exercise extraordinary care. It is said the court did not explain to the jury what was extraordinary care, leav- ing it to each juror to put his own construction on the phrase. "We think this objection is rather hypercritical. Had the court used the phrase, the strictest care, or any other phrase imply- ing a care more than ordinary, no one would think the court should give an explanation of it. So, where the phrase, extra- ordinary care, was used, the jury could not fail to see that something more than ordinary care was required, something extra, beyond that degree. It does not differ from the phrase, greatest care, utmost care, the highest degree of care, and so the jury would understand it.

The fourth instruction given for plaintiff is objected to. It was this :

" The jury are further instructed, that a passenger is entitled to a reasonable time to leave the car in which he has been riding, when a train is stopped for that purpose, and what will consti- tute a reasonable time, depends