Volume 14 — Illinois Reports

This cause was decided at February term, 1852, of the Circuit Court of Gallatin County. S. S. Marshall, Judge. The facts of the case will be found in the opinion.

The bill filed in this case alleges, that on the 13th of January, 1816, Josiah Bleakley constituted and appointed one John Hays his attorney in fact, empowering hini to sell and convey certain lands situate in the county of St. Clair, which power of attorney was duly recorded, &c.; that, on the 20th of June, 1817, by deed, Hays, in his capacity of attorney, conveyed, for a valuable consideration, to William A. Beard, the south half of section three, township one, north of…

At June term, 1850, of the Gallatin Circuit Court, the demurrer to the complainant’s bill was sustained, and the complainant declining to amend the bill, it was dismissed. The bill charges, that the trustees of Shawneetown, “ incorporated by an act of the General Assembly, &c., entitled, ‘An' Act concerning Shawneetown, approved 10th January, 1825, and Acts amendatory to the same,’ wished to borrow from the bank, &c., money to enable them to make improvements in town.

This cause was heard before Underwood, Judge, at October term, 1851, of the Perry Circuit Court. The opinion of the court contains a sufficient statement of the case.

The facts of this case are sufficiently stated in the opinion of the Chief-Justice. The decree complained of was entered by Catón, Justice, at May term, 1846, of the St. Clair Circuit Court.

This cause was heard at May terra, 1849, of the Clinton Circuit Court, before Underwood, Judge. The action was founded on a promissory note.

On the 2d of September, 1850, the defendant in error, who was the plaintiff in the court below, sued the plaintiff in error before a justice of the peace, on an account for eight dollars worth of rails, and obtained judgment for the sum of seven dollars and costs. The plaintiff appealed to the circuit court, at the special term of Jefferson Circuit Court, held in December, 1851.

The opinion contains a sufficient statement of the case. The petition was heard before Harlan, Judge, at October term, 1852, of the Jasper Circuit Court.

This suit was brought in the Circuit Court of Johnson County, by Haralson and wife against Bridges, in assumpsit, for rent due and in arrear, on an agreement not under seal, for certain premises described in the declaration. The cause of action arose before the intermarriage of the plaintiffs ; the premises had been leased from Mrs. Haralson. The cause was heard before Denning, Judge, at August term, 1852, of the Johnson Circuit Court.

This case is stated in the opinion of the court. The cause was heard before Denning, Judge, at the June term, 1851, of the Massac Circuit Court.

This was a suit commenced before a justice of the peace in the county of Wabash, by Lesher, to recover the amount of a medical bill, for services rendered the intestate in her last illness. An appeal was taken to the circuit court, and was submitted to that court, upon the following agreed case.

<p>The decree complained of was rendered at September term, 1852, of the Jefferson Circuit Court; Denning, Judge, presiding.</p>

This cause was heard before Denning, Judge, at September term, 1852, of the Jefferson Circuit Court. The opinion of the court furnishes a statement of the case.

The opinion of the court sets out the pleadings in this action and the substance of the testimony offered at the trial. The cause was heard before Harlan, Judge, and a jury, at March term, 1852, of the Richland Circuit Court.

The opinion contains a full statement of the case. The cause was heard before Harlan, Judge, at September term, 1852, of the Lawrence Circuit Court.

The opinion contains a statement of the case. The cause was tried before Marshall, Judge, without the intervention of a jury, at July term, 1852, of the Gallatin Circuit Court; and resulted in a verdict and judgment for the defendant in error. Mobley brings the cause to this court, and assigns errors.

The decree in this suit was entered by Marshall, Judge, at the October term, 1851, of the Gallatin Circuit Court. All the facts necessary to a full understanding of the opinion, are stated in it.

The opinion contains a statement of the case. The cause was submitted to the court, Marshall, Judge, presiding at September term, 1852, of the Jefferson Circuit Court; and resulted in a judgment for the plaintiff. The defendant brought the cause to this court by writ of error.

The final judgment upon the award was rendered at the May term, 1843, of the Massac Circuit Court, Denning, Judge, presiding. At the October term preceding, a motion was made to set aside the award. The recitals in the opinion set forth a full statement of the case.

This was an action of trespass de bonis asportatis, brought in the Franklin Circuit Court.

Wiley filed his bill, alleging that on the 23d day of March, a. d. 1848, Levi Rogers, being seized of certain lands, and being indebted to Wiley, executed a mortgage to secure the payment of such indebtedness which became due on the 23d of the following September; that the mortgage was duly acknowledged and recorded on the said 23d day of March.

This was a suit in chancery, brought to set aside a conveyance alleged to be fraudulent.

This was an action commenced before a justice of the peace, for the recovery of a penalty; the justice rendered a judgment for the plaintiff; the defendant then took the case to the circuit court by appeal. At the May term, 1849, of the Johnson Circuit Court, Denning, Judge, presiding, the suit was dismissed on the application of the defendant, because the plaintiff had omitted to give security for costs before commencing the action.

The facts of this case are stated in the opinion of the court. The cause was heard before Koerner, Justice, at March term, 1848, of the Monroe Circuit Court.

Eicheson brought this cause to this court by writ of error. Eyan filed his plea of release of errors, stating that Eicheson had voluntarily paid the judgment against him, to which plea a demurrer was interposed.

This was a case of distress for rent. Ellis issued his warrant as landlord, against Sketoe, directed to a constable, with an account appended, demanding the sum of $22.25 rent due. The constable, by virtue of the warrant, seized a two horse wagon. A summons was issued, and a trial had before a justice of the peace and a jury, who found for the defendant Sketoe a verdict for $25, for which judgment was entered by the justice.

The facts of this case are stated in the opinion of the court. The judgment complained of was rendered by Marshall, Judge, at the September term, 1852, of the Jefferson Circuit Court.

The opinion of the court embodies the agreed case upon which this cause was submitted to the circuit court for decision. The decision of this cause was pronounced by Denning, Judge, at November term, 1850, of the Gallatin Circuit Court.

This action was brought by Coudon against Phillips before a justice of the peace, to recover the value of a horse loaned by Coudon, and which died in the hands of Phillips. The suit was taken by appeal to the Circuit Court of Union county, and at September term, 1851, was heard before Denning, Judge, and a jury, and resulted in a verdict and judgment for the plaintiff. The defendant appealed to this court, and assigned errors.

This was a proceeding instituted in the court below, by the plaintiffs in error, under the 11th section of an act entitled “An Act to incorporate the Wabash Navigation Company,” in force January 30, 1847, to recover the value of timber, &c., taken from their lands by Samuel and Isaac Culbertson, and used in the construction of the dam and lock at the Grand Rapids of the Wabash River, for the said company, and, as is contended, as their agents and servants, as also the value…

<p>The only error assigned in this case is, that the court below suffered the said English to be examined as a witness, against the objection of the appellant.</p> <p>The cause was tried by Woodson, Judge, at March term, 1852, of the Morgan Circuit Court.</p>

This was an action of ejectment brought in the Hancock Circuit Court, and taken by change of venue to Scott County. The cause was by consent tried by the court, at May term, 1852, of the Scott court, Woodson, Judge, presiding. A statement of the case is in the opinion of the court.

The bill alleges, that the complainants being zrzuch embarrassed in their circumstances, by a decree of the circuit court of Morgan county, October, 1844, izi two cases consolidated on the 17th of February, 1845, the master in chancery sold their lands, incumbered, to Strawn; that the bill in this case was filed to redeem about 187 acres sold, for $862.48, (the precise amount of incumbrances on the same,) or at an average of $4.59 per acre; that H. Reeve, before day of sale,…

The plaintiff in error was convicted upon indictment found in the Menard Circuit Court, at November term, 1852, before Woodson, Judge, and a jury, for selling liquor in violation of the act of 1851, and fined $25 and costs. The court ordered that Metzker should stand committed until the fine and costs adjudged against him should be paid.

The decree herein was rendered by O. C. Skinner, Judge, at July term, 1852, of the Adams Circuit Court.

The declaration alleged that plaintiff owned a steamboat, running on the Illinois river: defendant also. Defendant run his boat carelessly and negligently against plaintiff’s and broke and injured it. Plaintiff greatly damaged thereby and obliged to pay out money to repair it, §1,500 ; lost use of it for a long time; also the profits of the use of it, &c. 2d count. Same as first, except that the names of the boats are given — plaintiff’s, Avalanche ; defendant’s, Alvarado.

The decree in this cause was entered at September term 1852, of the Jefferson Circuit Court, by Marshall, Judge. The cause was heard in the second division, by agreement.

This case was heard before O. C. Skinner, Judge, and a jury, at the March term, 1852, of the Adams Circuit Court. This was an action originally commenced before a justice of the peace, by Metcalf against Hess, for the value of a mare belonging to the former, and which got bung to death in the stable of the latter. Metcalf being at the time a.guest of Hess, and the mare being in the possession of Hess, as an innkeeper in the city of Quincy, in the State of Illinois.

This cause was heard and decided by the Circuit Court, at the August term, 1852. The facts of the case sufficiently appear in the opinion of this court.

<p>This case was tried before Minshall, Judge, and a jury, at u March term, 1852, of the Pike Circuit Court.</p>

<p>This cause was heard in the Circuit Court of Menard County, before Woodson, Judge, at March term, 1852, of the Menard Circuit Court.</p>

This was an action of assumpsit by the appellee against the appellant. The declaration contains the common counts for work and labor, goods sold and delivered, and the money counts. Plea, general issue and set-off. Issue joined, verdict and judgment for the plaintiff below. The defendant appealed. The cause was heard before Minsk all, Judge, at September term, 1852.

At the September term, 1851, of the Madison Circuit Court, a bill of indictment was found against Gutzweller, for unlawfully selling spirituous liquor by a less quantity than one quart, contrary to the form of the statute, &c. At March term, 1852, of the same court, Underwood, Judge, presiding, Gutzweller wras found guilty.

Short sued Pierce before a justice of the peace upon an assigned note, made by one Hungerford, in favor of one A. Thornton, by Thornton indorsed to Pierce, and by Pierce to Short. On the trial before the justice, Pierce recovered a judgment for his costs. Short thereupon appealed to the circuit court.

The opinion of the court contains a full statement of the facts of the case. The report of the master states that he has examined the evidence as touching the truth of the allegations set forth in the complainant’s bill, and that he found the following facts proven. 1. That the parties were married in Philadelphia, in 1843. 2.

The motion for a new trial in this cause was denied by O. C. Skinner, Judge, at November term, 1851, of the Adams Circuit Court.

This was an action of assumpsit brought by appellant, to recover compensation for board and lodging of appellee and his family. The cause was heard before Woodson, Judge, and a jury, at March term, 1852, of the Morgan Circuit Court, and resulted in a verdict and judgment for the appellee.! The opinion of the court contains a history of the casé.

The opinion of the court furnishes a statement of the case. The cause was tried before Woodson, Judge, and a jury, at March term, 1852. .

Cole commenced his action in ejectment to recover the west half of the north-west quarter of section twenty-four, in township thirteen north, range eleven west. Pennoyer pleaded not guilty. A trial was had before Woodson, Judge, a jury being waived, and judgment entered for Pennoyer as of May term, 1852, of the Morgan Circuit Court. A bill of exceptions was taken, which shows that the land in question was entered by and patented to Cole when he was about eighteen years old.

The agreed case filed in this court sets forth, that the railroad of the plaintiffs in error extends- from Naples to Springfield, fifty-five miles, and runs twenty-seven miles through the county of Morgan, and two miles through the corporate limits of the town of Jacksonville, and is of the value of §125,000, or rather has been so assessed for taxation for the year 1851, by the assessors of said county and town; the rolling stock on said railroad, consisting of locomotives,…

This was an action of account, under the statute, between copartners. The cause was heard in this court, upon errors assigned by both parties, as will be seen by reference to twelfth Illinois Reports, p. 111.

This was an action brought in the Scott Circuit Court, by Rufner against the defendants in error, on a plea of covenants broken, averring that the defendants with their wives, at the county of Scott, on the 29th day of August, 1842, executed a deed to one Stark Fielder, reciting it, (the covenant is stated in the opinion of the court,) which deed was. duly acknowledged and recorded, and avers that Fielder and wife, on the 9th of October, 1845, executed a deed of the same…

These two cases were argued conjointly. Irving sued one Brownell and Pryor in ejectment. Ross was substituted as defendant for Brownell. The verdict and judgment in the circuit court, was for Irving. Seven commissioners were appointed ‘to assess the value - of the improvements which had been made upon the land recovered in ejectment. The parties appealed, and examined witnesses before the commissioners.

Gray sued Waldo in trespass, alleging that Waldo, as a constable, levied an execution upon a mare owned by Gray, which Gray being the head of a family, and residing within said county, claimed to be exempt from execution.' Waldo filed bis plea of not guilty, with a notice of the special matters he should offer in his defence.

This was a petition for a mandamus to the Supreme Court at its session in December term, 1852, to be directed to the auditor, commanding him to pay to the Marine Bank a distributive share of the two mill tax, levied under the constitution, for the purpose of liquidating the State debt. The bonds had been deposited with the auditor under the general banking law, and remained in bis custody as depositary.

The cause was heard before T. L. Diciiey, Judge, and a jury, at August term, 1852, of the Sangamon Circuit Court, and resulted in a verdict and judgment in favor of Carpenter, for $326.96. The company appealed.

<p>This cause was heard at November term, 1852, of the Menard Circuit Court, by Woodson, Judge.</p>

<p>ERROR, TO MORGAN.</p> <p>The act to prohibit the retailing of intoxicating drinks, approved February 1, 1851, is not unconstitutional.</p> <p>A refusal to grant a new trial in a criminal case, because the verdict is contrary to the evidence, cannot be assigned for error.</p>

<p>APPEAL FROM MORGAN.</p> <p>A payment to the payee of a note, is valid against an indorsee who acquires it after it is due, whether he had notice of it or not, although the payment was not indorsed.</p> <p>Such a payment will avail against an equitable holder. - The beneficial owner of a note acquires no better right than an assignee who holds both the legal and equitable interest.</p>

<p>ERROR TO PIKE.</p> <p>Where W. advanced to B. fifty dollars with which to purchase land for W., and B. bargained with S. for the land, and paid him therefor the money advanced by W., but took the bond for the deed to himself, promising to convey to W. so soon as he should obtain the deed: —</p> <p>Held, that a resulting trust arose in favor of W., and that B. having caused a conveyance to be made to his mother-in-law, a member of his family, who had notice of the equitable title of W., that W. was entitled to the premises.</p> <p>A purchaser who buys land in the possession of another, is bound to inquire of the person in possession, by what tenure he holds, and may not excuse himself by merely obtaining information of the character in which the possession was first obtained.</p> <p>The purchaser of real estate is bound to inform himself as to what interest the party in possession claims, and it makes no difference whether he originally entered as tenant or otherwise; his possession is constructive notice of his rights in the premises, unless he fails to state them when inquired of.</p> <p>No contract between the parties can create a resulting trust, but it is an implication of law arising from the fact that land was purchased with the money of one party, and the conveyance made to another.</p> <p>Notice to an agent, is notice to the principal, if the fact of notice can be traced to the principal.</p>

The decree in this case was rendered at September term, 1852, of the Scott Circuit Court, Woodson, Judge, presiding. In this case, it appears from the record that the present plaintiff in error filed his bill, charging that said Clement and Evans were in negotiation for the sale by Evans to Clement, of a farm, being the land in controversy.

This cause was heard before T. L. Dickey,' Judge, at August term, 1852, of the Sangamon Circuit Court. This was an appeal to the Sangamon circuit court, from an assessment of damages for the company’s right of way over Baugh’s land. In the circuit court, the jury returned a verdict in favor of Baugh-for-§480, on which the court rendered judgment, and from which the railroad company appealed.

This was a proceeding by scire facias to foreclose a mortgage. The scire facias having been prepared with great care by an able practitioner, the formal parts are copied, for the use of such parties as may choose to avail themselves of it in practice.

<p>The decree complained of was entered at November term, 1847, of the Sangamon Circuit Court, Treat, Justice, presiding.</p>

<p>This cause was heard by Underwood, Judge, at the March term, 1852, of the Madison Circuit Court.</p>

<p>This case was heard at October term, 1851, of the Macoupin Circuit Court, O. C. Skinner, Judge.</p>

<p>Tins cause was heard before Woodson, Judge, at May term, 1850, of the Scott Circuit Court.</p>

<p>The decree complained of was entered by Woodson, Judge, at September term, 1852, of the Scott Circuit Court.</p>

This cause was heard before T. L. Dickey, Judge, at September term, 1852, of the Sangamon Circuit Court.

<p>The decree dismissing the bill was entered by Woodson, Judge, at November term, 1852, of the Morgan Circuit Court.</p>

<p>This cause was heard before Underwood, Judge, at March term, 1852, of the Madison Circuit Court.</p>

<p>ERROR TO SCOTT.</p> <p>In an action of debt it is error for the court to enter a judgment for the aggregate of the principal and interest.</p> <p>It is the duty of the court to ascertain the amount of each, and render a judgment for the principal as debt, and the interest as damages.</p> <p>Where interest is not specifically claimed in the declaration, it cannot be considered as part of the debt, and can only be recovered as'damages.</p>

<p>APPEAL FROM GREENE.</p> <p>Under the act of congress the records and judicial proceedings of the courts of any State are entitled to the same faith and credit in every other State, which they have in their own; provided they be attested by the clerk, under the seal of the court, and the judge or presiding officer certifies that the attestation of the clerk is in accordance with the law or usage of the State where the proceedings were had.</p> <p>It is not necessary that the judge should certify that the person who attests the record is the clerk, or that the seal is the seal of the court. The seal speaks for itself, and is presumed to have been affixed by the person having custody thereof, and that he had authority to do the act.</p> <p>A record against Barent H. will not support a declaration describing a judgment against Barnard II.</p>

<p>APPEAL EROM BROWN.</p> <p>The corporation of Mount Sterling has authority to open streets within its limits. It is invested with the same power in this respect as the city of Springfield. The president of the board of trustees exercises in one case the same functions that the mayor does in the other.</p> <p>A party need not apply to the president of the board to set aside the inquisition, but he may appeal to the circuit court, as soon as ten days shall have expired.</p> <p>If the proceedings are regular, the circuit court can only determine the amount of damages sustained by opening the street, but cannot inquire into the expediency of opening the street. If the proceedings are substantially defective, the court should reverse them, leaving the corporation to proceed anew.</p>

<p>APPEAL EBOM MADISON.</p> <p>Sales of land for taxes, under the act of 26th February, A. d. 1839, must be made on the second Monday succeeding the commencement of the term of the court at which judgment against the land was rendered, and if not made on that day are invalid.</p> <p>But before a party is permitted to raise this objection to the sale, he must show that no taxes are due on the property, and that he is the owner thereof.</p> <p>An acknowledgment, made out of this State, and signed “A. B. clerk, by C. D. deputy clerk,” and authenticated by the seal of a court of record is prima facie sufficient. The presumption is that the laws of the State permitted the appointment of the deputy clerk, and that the seal was affixed by the proper officer. The act of the agent, in the name of his principal, within the scope of his authority, is the act of the principal.</p> <p>The case of Bestor v. Powell, 2 Gilman, 119, reviewed and dissented from in part.</p>

<p>This cause was heard before Woodson, Judge, at November term, 1852, of the Menard Circuit Court.</p>

<p>APPEAL EROM MORGAN.</p> <p>If a deed be inter partes, that is, on the face of it, expressly describe and denote who are the parties to it, (as between A. of the first part, and B. of the second part,) G. cannot sue thereon, although'the obligation purport to be made for his sole advantage, and contain an express covenant with him. to perform an act for his benefit.</p>

The bill in this case alleges, that in July, 1838, Elias Thompson was the owner of the west half of the south-east quarter of section nine, in town thirteen, north of range east of fourth principal meridian, which he mortgaged to the school commissioner to secure the payment of $275, with twelve per cent, interest. Mortgage was recorded in Putnam county, but when Marshall was formed, record transferred.

The facts will be found stated in the opinion of the court. The cause was heard before Mark Skinner, Judge, at March term, 1853, of the Cook County Court of Common Pleas, on bill, answer, and proofs, and a judgment was rendered for the complainants, affirming the lien, for the value of the lumber sold to enable Maloney to construct the building. Higgins thereupon took an appeal.

Charles G. Thomas becoming insolvent, assigned all his estate and effects to Daniel Wann and two others, for the benefit of his creditors, gave them possession, and left the country. The plaintiffs in error, being creditors of Thomas, filed this bill to set aside the assignment, and have the estate and effects applied to the satisfaction of their claim.

Newhall filed his bill, seeking to enjoin the Galena and Chicago Union Eailroad Company from constructing a lateral road, extending from the main trunk towards Dixon. The bill alleged, that Newhall was a stockholder in the Galena and Chicago road, and that by the construction of the lateral road in question his dividends would be diminished, and the resources of the company impaired. The bill charged, that the company had not power to build the lateral road.

The facts of this case will be found in the opinion of the court. The cause was heard before Sheldon, Judge, and judgment was rendered at November term, 1852, of the Jo Daviess Circuit Court. The defendants in the court below appealed.

The facts of this case will be found in the opinion. The cause was heard before Kellogg, Judge, and a jury, at November term, 1851, of the Peoria Circuit Court, and resulted in a verdict and judgment for the defendants in error.

This was a proceeding by attachment commenced by Quarrier and others in the Circuit Court of Marshall county against Moeller and one Falmestock. Service was' made on Moeller, and Falmestock was brought into the case by advertisement. Garnishee process was issued in aid of the attachment. Moeller pleaded in abatement, that he was not about to depart this State, as was alleged in the affidavit, upon which process issued.

This was an action on the case brought by Armstrong, owner of the schooner Jane, against the Wards, who were owners of the steamboat Samuel Ward, to recover damages, occasioned by a collision between these vessels, on Lake Michigan. Plea, general issue and similiter. At December term, 1852, of the Cook Circuit Court, the case was submitted to a jury, H. T. Dickey, presiding, and verdict and judgment for Armstrong for $537. The Wards appealed.

The facts of this case will be found in the opinion of the court. This cause was heard before Sheldon, Judge, at November term, 1852, of the Jo Daviess Circuit Court.

The facts necessary to a full understanding of the application for a mandamus, as well as the laws upon which the application was founded, are stated in the opinion of the court.

The bill of exceptions in this case shows, that the defendant in the circuit court moved to quash the summons issued in the case, because the said summons was made returnable on the first Monday of May, a. d. 1853, on the first day of the term of the McDonough circuit court, when by law no term of said court was authorized, but the same should be held on a different month. The summons and the return of the sheriff are also shown.

This was an action of debt, commenced by Burnap against Wight, upon a bond given upon the issuing of a writ of ne exeat against the former, at the instance of certain parties for whom Wight acted as the attorney, and in that capacity made the affidavit upon which the process issued. Burnap was arrested upon the process, and committed to the custody of the sheriff. The declaration contained several counts, which embraced many causes of complaint.

Tub defendant in error entered a motion to dismiss the writ of error for the reason, that the writ was not issued until after five years from the rendition of the judgment in the circuit court.

This was an action of ejectment brought by Frink & Walker against Darst to recover possession of certain land. Plea, not guilty. The cause was tried by the court, Kellogg, Judge, presiding, at May term, 1852, of the Peoria Circuit Court. The judgment was for Darst. Frink & Walker sue out this writ of error.

This was a proceeding by scire facias, upon recognizance alleged to have been forfeited. The defects in the proceedings are stated in the opinion of the court. The cause was heard before Leland, Judge, at March term, 1853, of the Bureau Circuit Court.

The prayer of the bill filed by the Canal Trustees against the Chicago and Rock Island Railroad Company was, that the said company, their contractors, agents, &c., should be enjoined and commanded to desist from any further prosecution of said road from Chicago to La Salle; from going upon, interfering with, and digging up, any portion of the canal lands, especially any part of the canal interest, canal banks, tow-paths, heel-paths, or any part or parcel thereof, and from…

The plaintiff in error was the master of propeller Illinois, navigating between Buffalo and Chicago. The defendant in error shipped certain goods on this propeller at Buffalo to be conveyed to Chicago. The plaintiff in error brought the goods, and delivered them on the wharf of Dole, Rumsey & Co., and gave notice to the defendant in error of the arrival of the goods.

This -cause was heard before J. G. Wilson, Judge, at the April term, 1853, of the Boone Circuit Court, upon appeal from a justice of the'peace. The facts are stated in the report of a case between the same parties, on page 625, in the thirteenth of Illinois Reports.

The appellants brought their action in covenant, upon a contract under seal, made with the appellees, on the 9th day of July, 1852, by which the appellees covenanted to deliver to appellants, at Peru, two hundred head of good fat hogs, from the 1st to the 8th day of November then next; the appellants covenanting to appellees for all hogs of certain weight a certain price on delivery, and to advance from time to time, as appellees might require, $1,600; “ one hundred at. the…

This was a proceeding on the part of the city of Chicago, commenced by petition to the circuit court, for the appointment of three commissioners to examine and report upon the necessity of condemning and appropriating to said city, so much of blocks one, two, three, four, five, six, and seven, in the original town of Chicago, as may be necessary to open a street, eighty feet wide, commencing, &c., extending, &c. This proceeding was commenced in 1849.

Nancy J. Turney, as administratrix of John Turney, deceased, brought her action against Newhall and another in debt, upon a note given to “John Turney, administrator of the estate of William Smith, deceased.” I’o this declaration several pleas were filed.

See opinion for the facts of the ease. At March term, 1852, of the Jo Daviess Circuit Court, Sheldon, Judge, presiding, the garnishee process issued upon the judgment, obtained in favor of the State, was dismissed. Johnson, who was the garnishee, was released therefrom. The people brought this case to the Supreme Court.

<p>This cause was heard before Kellogg, Judge, at September term, 1852, of the Warren Circuit Court.</p>

At the July term, 1852, of the Recorder’s Court for the city of Chicago, R. S. Wilson, presiding, Thomas Cowen and Patrick Cowen were indicted, tried, and convicted, for devising and intending to cheat and defraud one Ransom Wilkinson of certain moneys, goods, and choses in action, by representing to him that a certain watch which they proposed to sell, and did sell to him, was a gold watch, of the value of one hundred and twenty-five dollars, of the best California gold,…

This was an application to the Supreme Court, in the exercise of the original jurisdiction conferred upon it by the constitution, for a mandamus, against the judge of the county court of Cook, commanding him to appoint appraisers to assess the damages which the parties hereinafter named would sustain by reason of the construction and use of the Illinois Central Railroad. The proceedings in the cause were: 1.

The decree in this case was entered at the April term, 1850, of the Tazewell Circuit Court, Davis, Judge. The nature and facts of the case sufficiently appear in the opinion of the court.

<p>ERROR TO JO DAVIESS.</p> <p>In an attachment against a boat for supplies furnished, the action will not be sustained except for such supplies as are used or consumed upon or in running the boat.</p> <p>To maintain his action for such supplies, it is incumbent on the plaintiff to show not only, that the supplies were furnished, but that they were actually to be consumed and used on the boat.</p> <p>Articles transported as merchandise and for sale do not come -within the purview of the statute.</p>

This was an action of debt, brought by the defendants in error, against the plaintiff in error for a violation of one of the ordinances of the town of Aurora, before a justice of the peace of Kane county, and taken by appeal to the Circuit Court of Kane county, Wilson, Judge, when at the May term, 1852, the cause was tried before a jury, and judgment rendered against the defendant below. The defendant below prosecuted his writ of error.

This was an action of assumpsit, brought by the appellees against the appellant on book account, and tried before á jury at the May Term 1852, of the Jo Daviess Circuit Court, Sheldon, Judge, when a verdict was found against the defendant below, and judgment rendered thereon. The defendant below appealed. The suit was commenced by capias.

The statement of the case is in the opinion of the court. This cause was heard before Wilkinson, Judge, at October term, 1852, of the Carroll Circuit Court.

This was an action of trespass on the case brought by the plaintiff in error against the defendant in error, at the April term, 1853, of the McLean Circuit Court. There was a demurrer filed by the defendant below to the declaration, which was sustained by the court below, and the plaintiff electing to stand by his declaration, final judgment was rendered against the plaintiff below on the demurrer. The declaration sufficiently appears in the opinion of the court.

This was a bill fov divorce filed by the defendant in error against the plaintiff in error, and heard at the May term, 1849, of the Ogle Circuit Court, when the decree was rendered, granting the divorce. The defendant below prosecuted the writ of error.

This was an action of replevin brought by the appellant against the appellee, in the Stark Circuit Court, and tried at the April term, 1852, Kellogg, Judge, and judgment rendered in favor of the defendant below. The question involved in the suit was the title to the mare and colt replevied. The plaintiff below appealed.

This action was commenced in assumpsit by the plaintiffs in error against the defendant in error, in the Winnebago Circuit Court. The defendant filed the plea of the general issue, with notice of set-off. The cause was submitted, by the consent of parties, to the Judge, Sheldon, at the November term, 1852, and judgment rendered for defendant.

This was a suit of trespass to personal property, brought by the plaintiff in error against the defendant in error, before a justice of the peace of McHenry county, and appealed to the circuit court of McHenry county, Wilson, Judge, where it was tried by the court, a jury being waived, at the March term, 1852, and judgment rendered in favor of the defendants below. The facts of the case sufficiently appear in the opinion of the court..

This was a bill for an injunction, filed by the plaintiff in error in the Warren Circuit Court, on which an injunction issued. At the April term, 1851, of said circuit court, Kellogg, Judge, on motion of the defendant, the injunction was dissolved, and the bill dismissed for want of equity therein. The complainant prosecuted his writ of error. The facts and allegations of th'e bill are sufficiently disclosed in the opinion of the court.

This was an action of replevin, brought by the appellant against the appellee, in the Kane Circuit Court, Wilson, Judge, and tried at the -November term, 1852, and judg-1 ment rendered in favor of appellee, the defendant in the court below. The plaintiff below appealed. The facts of the case appear in the opinion of the court,

This was an action of trespass quare clausum fregit, brought by the appellee against the appellant, and tried at the March term, 1853, of the Bureau Circuit Court, Lbland, Judge. The cause was submitted to the court for trial by the consent of parties, and judgment rendered in favor of the plaintiff below. The defendant below appealed. The facts sufficiently appear in the opinion of the court.

The petitioner, John Doolittle, in his petition, declares, that some time about the year 1838 he acquired a-large tract of land in Winnebago county, and cultivated and improved the same until if would be worth $10,000 but for the injury complained of. His petition then described the land, a part of which he alleged to be valuable, not only as meadow land, adjoining said farm, but as being contiguous to the flourishing village of Beloit.

This cause was tried at. the May term, 1852, of the Cook Circuit Court, Dickey, Judge, and judgment rendered for the defendants below, and the plaintiff below appealed. The case is sufficiently stated in the opinion of the court.

This cause was tried at the October term, 1852, of the Du Page Circuit Court, Henderson, Judge, and a judgment in favor of the plaintiff below, from which judgment the defendant below appealed. The facts of the case sufficiently appear in the opinion of the court.

The opinion contains all that is requisite, to give a full understanding of the question decided. The cause was tried before Leland, Judge, at October term, 1852, of the Bureau Circuit Court, and a judgment was rendered sustaining the award. Whittemore, the plaintiff in the suit below, appealed.

This cause was by agreement submitted to the court, Spring, Judge, presiding, for trial, at May term, 1849, of the Cook County Court, for trial. Judgment was rendered for Whitbeck.

There does not appear any bill of exceptions in this record.

This cause was heard before Peters, Judge, at May term, 1853, of the Peoria Circuit Court. The facts of the case are set out in the opinion of the court.

<p>ERROR TO COOK COUNTY COURT OE COMMON PLEAS.</p> <p>A lessee is bound to pay interest on instalments of rent from the times they become due.</p>

The application for a mandamus against the auditor, to compel him-to accept the report of the Exchange Bank, stated the organization of the bank under the general law, 'that on the first Monday in July, 1853, a full statement of the affairs of the bank, as they existed at that day, was made out, verified as the law requires, that it was published as the law requires in one of the newspapers of the city of Chicago.

<p>The nature of this application for a mandamus will sufficiently appear in the opinion of the court.</p>

Tins was a trial of right of property. The cause was heard before Wilkinson, Judge, and decided at April term of the Whiteside Circuit Court, 1852. The circuit court held that the right of property mentioned in the cause, was in the assignee of Hoyt and Hoskins. The facts in this case are substantially as follows, viz.: New-hall & Co. had a claim against Hoyt for goods, which they had sold him, and for which they took his note, amounting to near one thousand dollars.

This was a suit in chancery, at the May term, 1853, of the Rock Island Circuit Court, Weade, Judge. The substance of the bill appears in the opinion of the court. There was a demurrer iti the court below to the bill, and sustained, and the bill dismissed, and the complainant appealed.

The petition recited that one Valentine had recovered a judgment against the relator before a justice of the peace, for a trespass upon personal property, upon which an execution was issued, and returned “ no property found.” That Valentine afterwards made oath that the relator was able to pay the judgment, but fraudulently withheld the money, and thereupon the justice issued a capias ad satisfaciendum, upon which the relator was arrested and committed to the common jail, to…

The process issued from McHenry to Kane county, and was there served. A declaration was filed ; to which a demurrer was interposed, assigning as special causes, that there was no averment in the declaration that the cause of action accrued in the county of McHenry. That there is no averment in the declaration that the plaintiffs, at the time of the commencement of the suit, were residents of the county of McHenry. The court sustained the demurrer, and dismissed the suit.

This was a bill filed by the appellant in the Knox Circuit Court, on the chancery side thereof, for relief. The bill alleges, in substance, that, in 1850, ihe complainant purchased of the defendant, Andrew Wise, who was in possession of the land described in said bill, and who represented himself the owner thereof, and paid him the consideration agreed upon, and received from him a warranty deed of the same.

This was a petition filed in this court, setting forth that the city of Rockford was regularly incorporated under the fifth and sixth sections of an act of the general assembly, entitled “ An Act to incorporate towns and cities,” approved February 10th, a. d. 1849, and that the first election under the said city organization was held on the third Monday of April, a. d. 1852; that the mayor and aldermen took the oaths of office and entered upon their duties; that an ordinance…

<p>The statement of the case will sufficiently appear in the opinion of the court. The judgment was rendered by Kellogg, Judge, at the April term, 1852, of the Stark Circuit Court, and the plaintiff below brought the case here by writ of error.</p>

The agreed case presented to the court shows, that sometime in the year 1840, the defendants here were copartners in carrying on a contract upon the Illinois and Michigan Canal, and that wishing to purchase an engine of twenty horse-power then belonging to one Allen, but which was in the possession of Stow, before purchasing they went to Slow, and inquired if he had any claims against it; he replied that he had not.

<p>The bill in this case alleges, that Samuel Edwards, in his lifetime, in June, 1843, being seized in his own right of a certain piece of land in McHenry county, made and executed to Hiram Brown a deed of conveyance of the land, which, though absolute on its face, was made and executed by way of mortgage, to secure the payment of $195, then due from Edwards to Brown, with twelve per cent, interest, and that Brown, at the same time, to secure Edwards the right of redemption, executed and delivered to him a deed of defeasance, namely, a bond, conditioned, that if Edwards should pay the money and interest by the day named, Brown agreed to deed the land to Edwards; but upon the failure of Brown to pay, Edwards had the right to declare the contract forfeited and determined, and to enter upon and take possession of the land, and have and retain the same; the covenants to extend to the heirs and personal representatives of the parties.</p> <p>That, in September, 1843, Edwards died, leaving a will, making the present defendants in error his devisees and executors. That, in November, 1843, Brown made and executed to Jesse T. Miller, a quitclaim deed of the same land. That Miller, when he took his deed, was informed of all the transactions between Edwards and Brown. That the money was not paid by Edwards at the time agreed upon, but is still running at interest. That the money due has been tendered by the executors to Miller,- and a conveyance of the land demanded, which had been refused. That the land remained in the possession of Edwards and his executors until May, 1845, when Miller took possession, and cultivated and used the land. ' Prays a decree that the land may be given to the heirs, &c., of Edwards.</p> <p>Miller answered, alleging that the conveyance from Edwards to Brown was absolute, and that the bond was intended as a conditional sale, and that Edwards might repurchase, and that if the money was not paid to Brown by Edwards on the day named, the right of Edwards to repurchase should be forfeited and determined, and the purchase by Brown of Edwards should be absolute. Denies that the bond was intended to operate as a defeasance, but ayers that it was executed to secure to Edwards the right to repurchase the land, by paying Brown the money due Brown, on the 1st day of November, 1843. That Edwards did not sign the bond; that it was, therefore, void, for want of mutuality. That the price paid Edwards by Brown was a fair price for the land. That the land was conveyed by Brown to Miller for $251. Denies that he knew Brown held the land by mortgage, and claims to be a bond fide purchaser.</p> <p>The answer of Brown was in substance like that of Miller. Proofs were taken.</p> <p>In 1842, at the sitting of the Cook County Circuit Court, Hugh T. Dioicey, Judge, presiding,, it was decreed, that the deed should be considered a mortgage, and that Miller should convey to the executors of Edwards, in trust, for the devisees, on payment of $405, which was the principal and interest then due on the advance by Brown to Edwards. Thereupon Miller sued out this writ of error.</p>

Samuel Carr, Catharine Carr, and Barber Bill, were indicted for unlawfully, feloniously, forcibly, and by intimidation, making an assault upon, and then and there one bank bill of the value of five dollars, did of the personal goods of one S. C., rob, &c. On the trial of the cause, it appeared that a dispute arose about the purchase of 'a bottle of champagne, which S. C. refused to pay for; Barber Bill threatened S. C. with violence, unless he would pay for the wine; that he…

This cause was tried at the May term, 1853, of the La Salle Circuit. Court, Leland, Judge, when the plaintiff in error was convicted of the murder of Daniel Liley, and sentenced to' be executed, from which judgment the plaintiff in error prosecuted his writ of error.

<p>ERROR TO THE RECORDER’S COURT OE THE CITY OE CHICAGO.</p> <p>Criminal cases from the Recorder’s Court for the city of Chicago, must be removed by writ of error, and the writ must emanate from the Supreme Court.</p>

This was a proceeding by quo warranto, to test the validity of the organization of the Mississippi and Atlantic Railroad Company, as the… Held: an act was passed by the general assembly, in due form of law, which act is entitled * An Act recognizing and authorizing the construction of the Mississippi and Atlantic Railroad,” which act is, in substance, as follows: — Section 1st. Be it enacted, by the people of the State of Illinois, represented in the general assembly, that…

The facts of this case are set out in the opinion of the court. O. Peters, for appellants. The plaintiffs were entitled to their writ of inquiry in the county of Tazewell; the original judgment having been rendered there. It is objected that our practice act inhibits the institutions of these proceedings in that county, R. S. 413, § 3, because it is not the county of the defendants. The proceedings are instituted under the 18th section of Practice Act, R. S. p. 416, § 18.

This was an action on the following note: “ For value received, I promise to pay to Samuel Elliott or order, the sum of two thousand one hundred and twenty dollars, payable whenever the lands in the late purchase in the Iowa Territory shall be advertised for sale, with ten per cent, interest thereon.” The plea was the general issue with notice.

This was an action on the case for slander brought by the defendant in error against the plaintiff in error, in the Grundy Circuit Court, Catón, Judge, and tried at the November term, 1847, before a jury, who returned a verdict for the plaintiff below for $200, on which judgment was entered. The defendant below sued out a writ of error. The facts appear in the opinion of the court.

This was a suit in trover originally brought before a justice of the peace in Marshall county, by the appellee against the appellant, and taken, by appeal, to the circuit court of Marshall county, Leland, Judge, when it was tried at the January term, 1853, and judgment rendered for the appellee, the plaintiff below. The defendant below appealed. The facts of the case appear in the opinion of the court.

This was an action of trespass quare clausum fregit by Yates against Kimball and Lambert, for entering upon the close of Yates, and throwing down and laying open certain fences, &c. &c. Kimball and Lambert pleaded : 1st. The general issue. 2d. That- the fence when they threw it down inclosed and fenced in a public highway, which run across said highway and obstructed it, and that they entered, if at all, upon said close by-going along a highway across said close. 3d. That…

This was an action of replevin brought by the appellee against the appellant, at the September term, 1851, of the Stark Circuit Court, Kellogg, Judge. It was tried by a jury at said term, and verdict for plaintiff below, and judgment thereon. The defendant below excepted to the decisions of the court below admitting certain evidence on the trial, and appealed. The exceptions and facts sufficiently appear in the opinion of the court.

This was a suit in chancery, and bill filed, at the September term, 1847, of the Tazewell Circuit Court, Treat, Judge.

<p>This was an action of trespass on the case, brought by the plaintiff in error against the defendant in error in the Knox Circuit Court, at the September term, 1852, Kellogg, Judge. A demurrer was filed to the declaration, which was sustained by the court, and judgment thereon for the defendant below. The plaintiff below sued out a writ of error. The character of the declaration sufficiently appears in the opinion of the court-</p>

This was an action of trespass to personal property, brought originally by the appellee against the appellant, before a justice of the peace of Marshall County, and appealed by Hamilton to the circuit court of said county, Leland, Judge, where, at the April term, 1853, the cause was again tried and judgment rendered for the plaintiff below. The defendant below appealed to this court. The facts sufficiently appear in the opinion of the court.

This was an information in the nature of a quo warranto, first filed in the circuit court for the county of Stephenson, 30th March, 1850, upon change of venue from Winnebago. Held: or the form or manner thereof, or whether they were declared elected, or were elected at the proper place, so as to enable the court to judge whether they were duly elected.

This was an action of trespass on the case for damages, &c. It appeared that on the Sunday in question, to wit, the 21st June, 1852, the defendant, Henck, kept open a public garden in the city of Chicago, where the defendant, Jackman, was engaged in playing ball; and through his carelessness and misadventure, the ball went over the premises of Henck, into the adjoining street, and fell upon the head of the plaintiff’s wife then passing by, and that in consequence of the…

This was an action of assumpsit brought by Rawson against Ault in La Salle county Circuit Court, and tried June term, a. d. 1852, J. G. Wilson, presiding. 1st count. Common count for money paid, laid out, and expended; money had and received ; money lent and advanced. There was.but a single count to the declaration, to which was pleaded the general issue to which there was a joinder.

This was a bill filed to foreclose a mortgage, by the defendants in error against the plaintiffs in error, in the McHenry Circuit Court, J. G. Wilson, Judge, at the September term, 1852, and a decree of foreclosure entered. The complainants below filed this bill in chancery, to foreclose a mortgage made by Alexander H. Palmer and wife to them in 1844, on lands described in the bill. This mortgage was never filed for record.

This was an action of debt brought by the defendants in error against the plaintiffs in error, in the Bureau Circuit Court, Leland, Judge, and tried at the March term, 1853, before a jury, when a verdict was found for the plaintiffs below, and judgment entered thereon. The defendants below sued out a writ of error. The defendants filed below the pleas of nil debet and statutes of limitation; the last plea was demurred to by the plaintiffs, and sustained by the court below.

An indictment, alleging that the plaintiffs in error, in and upon one Sylvester Fairon, with a certain pistol, loaded with powder and ball, and with certain knives, feloniously, wilfully, unlawfully, and of their malice aforethought, did make an assault, with intent to kill the said Fairon, was found. On trial, the plaintiffs in error were found guilty. A motion for a new trial was denied. An exception was filed to the overruling of the motion for a new trial.

This was an attachment suit sued out of the Cook County Court of Common Pleas, returnable at the February term, 1853, by the appellee, against the appellant, and levied upon the land in question; and after obtaining judgment therein against said Seaman, filed his bill on the chancery side thereof, to subject Seaman’s interest in the land attached to sale for the satisfaction of said judgment. The facts sufficiently appear in the opinion.