CHANCERY.

JURISDICTION. Continued.

equity to enjoin or vacate such judgments, and this notwithstanding the
fact that the defendant has a right to have such judgment reversed on ap-
peal or error. Follansbee et al v. Scottish Am. Mty. Co. et al., 486
11. To restrain suits.—Where plaintiffs and defendants were co-part-
ners, and the defendants by proceedings in court in another State were
seeking a dissolution of such co-partnership, and in such proceeding it
had been stipulated that plaintiffs might carry on the business under the
direction of a receiver, with the right to sell the articles manufactured in
such business, a court of equity will restrain the defendants from an un-
lawful interference by replevin suits, with the sale of such articles. Pin-
dell et al. v. Quinn et al.,

12.

605

Waiver of objection to.-The rule that if a defendant in chancery
submits to answer without challenging the jurisdiction, it is too late to
raise the objection is subject to some qualifications. Where it is com-
petent for the court to grant the relief, and the court has jurisdiction of
the subject matter, the rule applies; but where the jurisdiction of the
court is dependent upon a discovery and the discovery fails, the rule will
not apply. U. S. Ins. Co. et al. v. Cent. Nat. Bank et al.,
426
PRACTICE.

13. Appeal from dismissal of cross-bill.-Whether an order dismiss-
ing a cross-bill is such a final order as may be appealed from, is not deci-
ded; but in this case the dismissal of the cross-bill being followed by the
dismissal by complainants of their original bill, from which an appeal
was also taken, the latter appeal brings up the whole record, so that er-
ror may be assigned upon the order dismissing the cross-bill. Follansbee
et al. v. Scottish-Am. Mtg. Co. et al.,
486

14. Default after answer.-It is error to decree a default against a
defendant in chancery when his answer is on file. Younger et al. v.
Louks,
280

15. Entering decree.-A decree is inoperative, as such, until it has
received the file mark of the clerk. So, where a decree was prepared by
the judge before the expiration of his term of office, but was not filed
until after his successor had been elected and qualified, it is a nullity.
Russell v. Sargent,
98

16. On reversing a decree.-A complainant has no right, except by
consent, to dismiss his bill, after the filing of a cross-bill, and where a
cross-bill was improperly dismissed by the court, the complainant had no
right to dismiss his original bill; and upon reversal of the order dismiss-
ing the cross-bill, the parties will be remitted to the same position they
were in when the error was committed, and the order dismissing the
original bill will also be set aside. Follansbee et al. v. Scottish-Am. Mig.
Co. et al.,

486

17. Recital of facts in decree.-Recitals in a decree constitute one of
the recognized modes of preserving the evidence in chancery cases, but
where there is a certificate of evidence purporting to contain all the evi-
dence, that alone will be regarded upon appeal in considering the evi-
dence in the case. Gage v. Busse et al.,

433

CHATTEL MORTGAGE.

GENERALLY.

1. Growing crops.-A chattel mortgage made in February, 1879, of "the wheat and other crops now growing on " the lands designated, the wheat having been put into the ground the fall before, is valid. The wheat at the time of giving the mortgage, had a potential and substantial existence and was a proper subject of conveyance. Hansen v. Dennison et al., 73

2. Mortgagee taking possession-Manual caption not necessary.—In taking possession by a mortgagee of property covered by a chattel mortgage, it is not necessary that the property should be touched or removed, if the party taking possession has the property in view, where he can control it, and does assume dominion over it with the expressed purpose of holding it under the mortgage. Gaines v. Becker,

315

3. Taking possession by attorney.—Where an attorney, under directions from the mortgagee, takes proper possession of property under a chattel mortgage, and places it in charge of a custodian, he is not liable for the subsequent neglect of the custodian in permitting the property to be seized under an execution. Gaines v. Becker, 315

4. Taking possession under.—Such acts in taking possession of personal property under a chattel mortgage, as will make a valid levy under a writ of attachment or execution, will be a sufficient seizure under the mortgage. Gaines v. Becker, 315

CITIES AND VILLAGES.

LIABILITIES.

1. For damages done by private corporation.-Where a city gave consent to a bridge company to construct approaches to their bridge along a certain street, it becomes liable for such damages only as are the necessary, usual and natural consequences of the act, such as it might reasonably foresee would probably result from the license granted. City of East St. Louis v. Lockhead et al.,

SIDEWALKS.

2. Duty as to.-A city is only bound to use reasonable care and diligence in keeping its sidewalks in a reasonably safe condition. City of Joliet v. Walker,

267

3. Negligence-notice.-The question of the negligence of the city in failing to keep its sidewalk in repair, and whether or not the officers of the city had notice of the defect, are matters that should be left to the jury under proper instructions from the court. City of Joliet v. Walker,

267

4. Notice of defect.-If the defect was of such a nature, taken in connection with all the circumstances in the case, as not to cause a reasonably prudent man whose business it was to look after the repairs of the street to suspect its dangerous condition; or if it would not, in view of all the circumstances put him upon inquiry to examine its condition, then there would not be notice to the city. City of Joliet v. Walker, 267

5.

Want of repair-Notice.-Before a liability can attach to a city in consequence of injuries received through defects in a sidewalk by reason of not being kept in repair, the city must have had actual notice of its

CITIES AND VILLAGES.
SIDEWALKS. Continued.

condition, or the defect must have existed for such a length of time that
the city could, by the exercise of reasonable care and diligence, have dis-
covered and remedied the defect. Express notice need not be proved,
where the law will imply notice. City of Gilman v. Haley,

COGNOVIT.-See PROMISSORY NOTE.

COMMISSIONS.-See ADMINISTRATION OF ESTATES.

COMMON EMPLOYMENT.-See MASTER AND SERVANT.

CONDEMNATION OF LAND.-See EMINENT DOMAIN.

CONDITION PRECEDENT.-See CONTRACTS.

CONSIDERATION.-See PROMISSORY NOTES.

CONSOLIDATION OF CLAIMS.-See JUSTICES OF THE PEACE.
CONSTABLE.-See OFFICERS.

CONTINUANCE.-See PRACTICE-JUSTICES OF THE PEACE.

CONTRACTS.

CONSTRUCTION.

349

1. Contract of hiring.—A contract to serve a year at a fixed sum, the
same to be paid in regular weekly installments, although a single con-
gle contract, is divisible as respects the remedy, the stipulations as to pay-
ment being considered as several obligations. Jones v. Dunton, 580
2. Dependent agreements-Condition precedent.—A stipulation in a
contract that in consideration of the influence and services to be rendered
by one party, the other party would pay a stipulated sum per month, is a
dependent agreement, and some performance or service during each
month must be shown as a condition precedent to the right to recover
for the installments as they become due. Waldron v. Brazil, etc., Coal,
Co.,
542

3. Dependent and independent agreements.-Where a contract stipu-
lated that one party "would use his influence in every proper way for
the advantage of said company
* and performs such services as
the state of his health would permit," and that "in consideration of
such influence and services" said company would pay to the wife of such
party a stipulated sum per month, the first stipulation is independent
and its performance cannot be made a condition precedent to the pay-
ment of the monthly installments.
Waldron v. Brazil, etc., Coal Co.,

FOR SERVICES.

542

4. Member of family.—Where the testimony shows that one party
lived with another as a member of his family, and does not show an
agreement to pay for services rendered, there can be no recovery for such
services. Neeley v. Rich, 116; Woolsey v. White,

277

5. Readiness to perform.-In an action upon a contract of hiring

for a failure to give the plaintiff employment as agreed, it is error to instruct the jury that the plaintiff is entitled to recover if they believe that the defendant, without good cause, refused to give the plaintiff employment, without also stating in such instruction the proposition that the plaintiff must be ready and willing to perform on his part. Ruddock et al. v. Belton, 517

GENERALLY.

6. Agency. In this case the court is of opinion the evidence fails to show authority from appellee to direct the change in the contract upon which appellants rely, and hence appellee is not liable. Bensley et al. v. Moon, 415.

7. Change in contract.-Undoubtedly, parties after having made an illegal contract are at liberty to enter into another contract in relation to the same subject-matter, but the new contract must in no sense be a continuation or modification of the old; the old contract must be utterly abandoned, so that neither its terms, consideration, nor any claim of right springing out of it, shall enter into the new-otherwise the new contract is void also. Webster v. Sturges, 560

8. Constructive service.-Where the contract was to pay the employe in weekly installments, and he is wrongfully discharged before the expiration of his term of service, he cannot sue and recover for the several installments as they become due, averring a readiness to perform, on the ground of a constructive service. Jones v. Danton, 580

9. Modification.-The plaintiff claimed damages for a failure to perform a certain contract as modified by a subsequent parol agreement. The court is of opinion that the evidence fails to prove the modification of the original contract as claimed by plamtiff, and even if the modification was sufficiently proved, it did not extend to other portions of the original contract, which remained unchanged, and upon which plaintiff's right to a recovery must be based. Stewart v. Many, 508

10. Options.-Contracts by which either party is given an option to buy or sell, at a future time, grain or other commodity, are gambling contracts, repugnant alike to good morals and public policy, and are forbidden by statute. Webster v. Sturges,

560

11. Time contracts.-Time contracts, made in good faith, for the sale and future delivery of grain or other commolity, are not prohibited, either by the common or statute law, anl are in no respect repugnant to public policy. Webster v. Sturges.

560

12. Wrongful discharge.-An employe wrongfully discharged by his employer, cannot wait till the expiration of the term for which he was hired, and then sue for his whole wages, on the grounl of constructive service. His remedy in such cases is an action to recover such damages as he has sustained by reason of the breach of the contract. Jones v. Dunton, 580

OF SALE.

13. Measure of damages for breach.—In contracts of sale the measure of damages for a failure of the vendee to receive the property pur

CONTRACTS.

OF SALE. Continued.

chased, is the difference between the contract price and the fair market
value of the property sold; and if there be be a market value, and a sale
for the commodity, the vendor cannot, upon such failure keep the prop-
erty to await a rise in the market, and charge the vendee with the cost
of such keeping. Thurman v. Wilson,
312

RESCISSION.
14. Must be in toto.-A party to an entire contract cannot rescind in
part and affirm as to the residue. He cannot rescind without returning
or offering to return whatever he has received under it. Kimball v. Lin-
coln et al.,
470

15. Recovery on quantum meruit,-Where one of the contracting
parties refuses to perform, or by his act incapacitates himself from per-
forming, such act or refusal will be equivalent to a rescission of the con-
tract and the other party may, if he choose, treat the contract as rescind-
ed and recover for services already performed, upon a quantum meruit.
Shaffner v. Killian,
620

16. Sale.-Where the executors of a deceased partner, sold his
interest, real and personal, in the partnership business, for a gross sum,
although the instruments of conveyance were separate as to the real
estate and personal property, yet they cannot rescind the sale as to the
latter and affirm as to the former. Kimball v. Lincoln et al.,

CONTRIBUTION.-See SURETY.

CONVEYANCES.

FRAUDULENT.

470

1. Effect of. If a conveyance of property is made with a fraudulent
intent and object, it is not purged of the fraud because there may also
have been some other purpose in view, such as the discharge of a debt
due the grantee. Hansen v. Dennison et al.,
73

COUNTY TREASURER'S BOND.-See BONDS
COUNTY SUPERINTENDENT.-See SCHOOLS.

COURTS.
APPELLATE.

1. Jurisdiction.-The Appellate Court has no jurisdiction on appeal
or writ of error, where the question of a freehold is involved. McDowell
v. Lucas et al. 128; Randolph County v. Caldwell, 135; Almon et al. v.
Taylor et al., 183; Fitzgerald et al. v. Fitzgerald et al., 191; Neimeyer
v. Knight et al., 200; Marvin v. Collins, 353; Robinson v. Peterson et
al., 398; Hawley v. Simons et al., 401; Sperry v. Young, 402; Frick et
al. v. Trustees, 403; Whitehead v. Alexander, 506; Johnson v. Johnson,
521; Gage v. Bailey et al., 619; Gage v. McLaughlin,
623

224

2. Jurisdiction-Revenue cases.-This court has no jurisdiction on
appeal in cases relating to the revenue. Mix v. The People,
SUPREME COURT.

3. Opinion and statement of facts.-A statement of facts in an