Manken v. Wilson.

issue, and was admissible, and when unopposed by other evidence, and when supplemented by the personal visit of the jury to the premises, must be held sufficient to support the findings as to all the lands which are referred to in the abstract and brief. The findings in all the cases set out in the abstract are clearly within the amounts warranted by the evidence as to the damages to lands not taken, and sufficient to support the amounts allowed for land taken.

The instruction complained of is more liberal to the appellant than the one given at its instance, for it not only allows the jury to set off benefits and advantages against the damages to land not taken, but omits the limitation that such advantages as are enjoyed by the owner of the land in common with the public generally, should not be considered which limitation is in the instruction given for appellant.

We think if any error was committed in the giving of instructions it was in favor of the appellant. Page v. R. R. Co. 70 Ill. 324; R. S. 1874, Ch. 47, Sec. 9.

The judgment is affirmed.

LORENA MANKEN, Impl'd,

V.

HENRY C. WILSON, Trustee, etc.

EXCESSIVE JUDGMENT.-The amount found due in the decree is in excess of that shown by the evidence, and the cause is reversed with instructions.

APPEAL from the Circuit Court of Jackson county; the Hon. O. A. HARKER, Judge, presiding. Opinion filed April 7,

1881.

Mr. G. W. SMITH, Mr. R. J. STEPHENS and Mr. A. D. DUFF, for appellant.

Mr. A. R. PUGH, for appellee.

PER CURIAM. In this case the amount found due in the

Krug v. Outhouse.

decree of the circuit court is in excess of that shown to be due by the evidences of indebtedness. This is one of the assignments of error. The other assignments of error are not well made. The judgment of the circuit court is reversed and the cause remanded, with instructions that a decree for the amount due be entered, and in other respects the decree of the circuit court is affirmed. Reversed and remanded.

AUGUST KRUG

V.

OLIVER OUTHOUSE ET AL.

STATUTE OF LIMITATIONS.-At the time the trespass complained of was committed, the statute limiting rights of action in such cases was five years. The statute began to run from the time the trespass was committed, and five years having elapsed before this suit was begun, the cause of action was barred.

APPEAL from the Circuit Court of Marion county; the Hon. AMOS WATTS, Judge, presiding. Opinion filed April 7, 1881.

Mr. M. SHAEFFER, for appellant.

Messrs. MURRAY & ANDREWS, for appellees; that the right of action was barred, cited Reese v. Mitchell, 41 Ill. 365.

As to the time when the cause of action accrues: Faulds v. The People, 66 Ill. 210; Norris v. The Hundred, Hob. 139.

PER CURIAM. We see no error in the judgment of the cir cuit court in this case. The instruction was properly given on the part of the defendants. The trespass was committed on the 21st of June, 1873. Suit was begun on the 21st of June, 1878. The defense was the general issue and Statute of Limitations. The statute then and now in force, required that the action should be brought in five years from the time of the commission of the trespass, and the statute began to run from the time the right of action accrued. The right of action ac

Krug v. Outhouse.

crned on the 21st day of June, 1873. The 21st day of June, 1878, was one day more than five years, and the right to prosecute this suit was barred. Item 11, Sec. one, Chap. 131 of Underwood's Statutes, referred to by counsel for appellant, is not applicable to this case, because it was enacted subsequent to the commission of the trespass, and because section 4 of the same chapter provides that "No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment, incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect such offense or act so committed or done, or any penalty, forfeiture, or punishment so incurred, or any right accrued, or claim arising before the new law takes effect," etc.

The judgment of the circuit court is affirmed.

Judgment affirmed.

VOL, VII I.

20

CASES

IN THE

APPELLATE COURTS OF ILLINOIS.

FIRST DISTRICT-OCTOBER TERM, 1880.

FREDERIC S. BAIRD

V.

HENRY M. HOOKER

1. SALE UPON CREDIT OF THIRD PERSON-ENTRY UPON BOOKS OF VENDOR.-Where a plaintiff claims that the sale was made upon the credit of a third person, the fact, unexplained, that the goods were charged to the person to whom they were delivered, is entitled to some weight, as going to show that credit was in fact given to the latter instead of to the defendant, as claimed by plaintiff, but such fact is not conclusive.

2. BOOKS OF PLAINTIFF IN EVIDENCE.-Admission of the plaintiff's books in evidence, to prove delivery, amount and price of the goods, there being no sufficient ground laid for their admission, is error, but all these facts having been proved by evidence aliunde, it is not such error as will reverse.

3. VENDOR NOT BOUND TO SEE TO APPLICATION OF GOODS.-If the defendant agreed to pay for all the paints plaintiff might deliver to B and Cthey then being engaged in building a house for the defendant-it is no defense that some of the paints may not have been used upon defendant's house; the plaintiff is not bound to follow the goods and see where they were used.

4. SECONDARY EVIDENCE.-There was no error in rejecting the offered testimony of a witness as to the contents of a writing claimed to have been brought to defendant by plaintiff, there being no proof of the loss of the original writing or defendant's inability to produce it.

APPEAL from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding. Opinion filed February 8, 1881.

Baird v. Hooker.

Mr. F. S. BAIRD, pro se; that it was error to admit the books of account of plaintiff in evidence, cited Rev. Stat. 1872, Chap. 51, § 3; Pres. Church v. Emerson, 66 Ill. 269; Ruggles v. Gatton, 50 Ill. 412.

Mr. EDWIN F. BAYLEY, for appellee; that the account books of plaintiff were properly admitted in evidence, cited 1 Greenleaf's Ev. § 116; Boyer v. Sweet, 3 Scam. 120; Humphreys v. Spear, 15 Ill. 275; Taliaferro v. Ives, 51 Ill. 247.

The credit was given to appellant, and notwithstanding they may have been charged to another, yet if he promised to pay for them, the plaintiff was entitled to recover: Owen v. Stevens, 78 Ill. 462; Schoenfeld v. Brown, 78 Ill. 487.

BAILEY, J. Hooker sued Baird before a justice of the peace of Cook county, and recovered a judgment for $200 and costs. On appeal to the circuit court, a trial was had before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for the same amount. From this judgment Baird has appealed to this court.

The suit was brought to recover the price of certain paints, etc., delivered by Hooker to Burger & Coon, who at the time. were engaged in erecting a house for Baird. Hooker claims that said goods were delivered to Burger & Coon on the credit of Baird, and on his oral agreement to pay for them, entered into before their delivery. Baird denies the making of such an agreement, and also sets up and relies upon the Statute of Frauds.

As to whether said contract was made, the evidence is conflicting, the testimony of Hooker and Baird being directly contradictory. Counsel for the defendant urges upon our attention certain circumstances appearing in evidence, which, as he claims, corroborate the testimony of the defendant and dispute that of the plaintiff, the most significant of these being, that on the plaintiff's books the goods sold appear charged to Burger and Coon. This circumstance, undoubtedly, if unexplained, would be entitled to considerable weight, though it would be by no means conclusive. Some explanation, however, is furnished by