Opinion of the Court.

The defendant stated that he had a good defense, which he detailed at length, and also that he had not been served with any process, returnable to the term at which the judgment was rendered.

The record shows conclusively that there was no new suit, and the attorney had been employed to defend the suit in which he filed the plea. He had accepted a retainer, and the defendant was concluded by the action of his attorney. All defects and irregularities in the service, if any existed, were cured by the plea. Easton v. Altum, 1 Scam. 250; Mitchel v. Jacobs, 17 Ill. 225; Dunning v. Dunning, 37 Ill. 306.

The affidavits do not present sufficient grounds for a new trial.

Even if all the facts detailed in the affidavit of the defendant had been proved, we should not disturb the finding of the court. The weight of the evidence would still be in favor of the plaintiff.

If the witnesses of the defendant had been present at the hearing, and testified in conformity to the affidavit, there would still be only a conflict of evidence.

In such case, it is sufficient, if, by fair and reasonable intendment, the judgment can be sustained.

Upon the whole record, we have no hesitation in affirming the judgment.

Judgment affirmed.

Syllabus. Opinion of the Court.

GEORGE C. BESTOR

บ.

WILLIAM Moss et al.

1. NEW TRIAL-finding as to facts. Where a case is fairly left to the jury, under proper instructions, and the evidence is conflicting, both parties being sworn, and the evidence objected to and admitted, even if irrelevaut, could not have affected the verdict, a new trial will not be granted.

APPEAL from the Circuit Court of Peoria county; the Hon. S. D. PUTERBAUGH, Judge, presiding.

Messrs. POWELL & MCCULLOCH, for the appellant.

Messrs. JOHNSON & MCCOY, for the appellees.

Per CURIAM: This case was fairly left to the jury, under proper instructions, and turned simply upon the question whether the defendants had paid the debt sued for, or that portion for which they were liable. The jury found they had. The evidence was conflicting, and the parties were both sworn. The evidence objected to by plaintiff bore upon the issue so far as to be admissible, and even if so irrelevant that it might have been excluded, it can not have affected the verdict.

There is n ground for disturbing the verdict.

Judgment affirmed.

32-61ST ILL.

1. MECHANIC'S LIEN-action by sub-contractor. Where a sub-contractor gives notice to the owner of the building, according to the act of 1869 amendatory of the mechanic's lien law, and the proof shows that such owner had funds in his hands belonging to the contractor at the time of the notice, he will be liable in an action by the sub-contractor to recover wages due him for labor on the building.

APPEAL from the Circuit Court of Cook county.

The appellee brought suit against appellant, before a justice of the peace, under the provisions of an act amendatory of the mechanic's lien law," approved April 5, 1869, for wages due appellee for work done on the building of appellant, under the employ of James Sullivan, contractor. On the trial of the cause on appeal, the services were proved and service of notice on appellee. It also appeared that at the time of serving the notice, appellant still owed Sullivan a sum greater than the claim of appellee.

Mr. A. T. EWING, for the appellant.

Per CURIAM: This suit was instituted by virtue of the provisions of "An act amendatory of the mechanic's lien law," approved April 5th, 1869. The law was complied with in the giving of the notice required.

We think it may be fairly inferred, from the evidence, that the owner of the building had funds in his hands belonging to the contractor at the time of the notice. His liability follows, as a matter of law.

The judgment is affirmed.

Judgment affirmed.

Syllabus.

HENRY UHLICH

v.

JOHN M. MUHLKE et al.

and

JOHN H. MUHLKE et al.

V.

HENRY UHLICH.

1. PRINCIPAL AND AGENT-of dealings between them-and herein, of tre burden of proof in relation to the fairness of the transaction. Where a conveyance is made to the confidential agent and adviser of the grantor, it is not void merely by reason of the relation thus existing between the grantor and the grantee.

2. Nor does it devolve upon the grantee, standing in this relation, to prove, in the first instance, that he did not use the influence he possessed over the grantor to induce the deed-that he did not abuse the confidence reposed in him.

3. A confidential relation gives cause of suspicion, and the circumstances under which a deed is made during such a relation, must be closely scanned; and if a reasonable suspicion exists that confidence has been abused where reposed, the deed should be set aside.

4. But the suspicion may be removed, and to render such a transaction valid, it is only necessary to show that the other party had competent and disinterested advice, or, that he performed the act, or entered into the transaction, voluntarily, deliberately and advisedly, knowing its nature and effect, and that his consent was not obtained by reason of the power and influence to which the relation might be supposed to give rise.

5. A gift by one to another, who has been for many years his confidential agent and adviser, is valid, unless the party who seeks to set it aside can show that some advantage was taken by the agent of the relation in which he stood to the donor.

6. ADEQUACY of consideration-fraud. A person owning a large and valuable property in the city of Chicago, obtained the services of another as agent and confidential adviser, in the management of the estate. After four years' service of an important character, to the principal, for which the agent had received no compensation, the former conveyed to the latter an undivided one-third of the property, of the value of about $125,000, the deed reciting a consideration of $12,000, and "for other good and valuable

| 61 499 157 252 61 499 181 25

Syllabus.

considerations." There was no money paid by the grantee, the only consideration for the conveyance being such services as he had rendered and such as he agreed to render, in the matter of the management of the es tate. At the time of the conveyance there was an incumbrance upon the entire property, amounting to $36,000, the conveyance being made subject to one-third of the same. Simultaneously with the execution of the deed, the grantee entered into a covenant to continue his services in the matter of the estate committed to his care, even after the death of his grantor; and if he himself should die, he covenanted that his successors after him, at the expense of his estate, should render them. At the time of the transaction the grantee was engaged in a large and remunerative mercantile business, by which he had already acquired property estimated at $50,000; and soon after he made the covenant mentioned he closed his connection with that business in order that he might bestow his entire time upon the business of his employer. Upon the objection in a suit by one of the chil. dren and devisees of the grantor, that the consideration for the deed was so grossly inadequate that a court of equity ought to set it aside as fraudulent, it was held, there was adequate consideration for the deed, and it was valid.

7. PARENT AND CHILD-absolute power of disposition of property by the former. The owner of property has a right to convey it to whom he pleases, there being no creditors; he may impose conditions upon any one of his grantees, to make the deed to him inoperative; he may judge who are the proper objects of his bounty, and, if free from insane delusion or senile dementia, passing by his own children, give it to aliens to his blood. A child has no natural right to the estate of his father-no such right as can be asserted against the testamentary disposition of the estate by the father.

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. Wм. K. MCALLISTER, Messrs. NISSEN & BARNUM, and Mr. I. N. STILES, for Henry Uhlich.

Messrs. GOODRICH, FARWELL & SMITH, for Muhlke et al.