Volume 15 — Illinois Reports

<p>This cause was heard by Marshall, Judge, at July term, 1853, of the Gallatin Circuit Court.</p>

The opinion contains a statement of the case. The cause was heard at the July term, 1853, of the Gallatin Circuit Court, before Marshall, Judge.

The decree in this case was entered by Denning, Judge, upon bill, answer, replication, and proofs, at June term, 1851, of the Massac Circuit Court. The facts of the case are sufficiently stated in the opinion of the court.

<p>ERROR TO GALLATIN.</p> <p>Where pleas are filed, and not in any way disposed of, it is erroneous to proceed to trial upon other pleas and issues.</p> <p>The survivor of several trustees may maintain a suit in his name, whether he can or not go on alone to execute all the duties and powers of the trust.</p>

<p>ERROR TO GALLATIN.</p> <p>A deed executed in another State conveying lands there situated, if there is no subscribing witness, should be proved by the testimony of a witness familiar with the handwriting of the grantor.</p> <p>An act of the legislature of another State should be authenticated by the seal of the State. The seal of the secretary of state cannot be regarded as the seal of the State.</p> <p>In order to maintain an action upon a covenant of warranty, the party suing, if he has neglected to give notice to the warrantor of the pendency of the action in ejectment by which he has been evicted, must come prepared to prove that the eviction was by force of an adverse or superior title; and that if the warrantor had appeared and defended the action of ejectment, he could not have prevented a recovery.</p>

This was an action of trespass brought by Gregory and wife against the railroad company, for entering upon the lands of Gregory, making embankments thereon, &c. The company by plea in defence, set up the grant by the legislature, the appointment of commissioners under the law to procure a condemnation of the right of way over the lands in question, the tender of the damages assessed, the refusal to accept, &c., and that the company entered upon the lands, as they lawfully…

<p>ERROR TO MASSAC.</p> <p>On an issue raised as to the truth of an affidavit, upon which an attachment was issued, the declarations of the defendant made after the service of the attachment, will not be allowed to contradict statements made before or at the time of the service of the writ.</p>

<p>Cause heard before Marshall, Judge.</p>

<p>ERROR TO JOHNSON.</p> <p>In chancery, an answer is evidence only so far as it is responsive to the allegations of the bill.</p> <p>When matters in discharge are stated in the answer, they must be proven, unless in cases where the same matter or statement that creates the charge also shows its discharge.</p>

<p>ERROR TO PERRY.</p> <p>The court will not interfere with the province of a jury upon slight differences of opinion; each particular case will be considered, and if the court is well satisfied that the damages awarded are too high, relief may be granted by giving a new trial.</p>

<p>See dpinion for a statement of the case.</p>

<p>This cause was heard before Denning, Judge, at October term, 1853, of the Massac Circuit Court.</p>

This cause was heard before W. A. Denning, Judge, and a jury, at the October term, 1852, of the Pulaski Circuit Court.

<p>ERROR TO GALLATIN.</p> <p>A surety may enforce contribution from a cosurety without showing the insolvency of the principal.</p> <p>Where a creditor does not exhibit his claim within two years from the granting of letters of administration, he cannot participate in that portion of the estate which was inventoried or accounted for during that period. Such creditor must be satisfied out of estate subsequently discovered.</p> <p>If an administrator does not return an inventory of the real estate of the intestate within two years, such creditor may share in the proceeds thereof.</p>

This cause was tried before Marshall, Judge, and a jury, at August term, 1852, of the Edwards Circuit Court. Verdict and judgment for the plaintiff in the court below. The railroad company sued out this writ of error.

<p>This cause was heard by Denning, Judge, at June term, 1853, of the Massac Circuit Court.</p>

<p>. This cause was tried before Underwood, Judge, at the March term, 1853, of the St. Clair Circuit Court.</p>

This cause was submitted to Underwood, Judge, at the August term, 1851, of the St. Clair Circuit Court, upon an agreed state of facts. The court rendered judgment for the sheriff. See facts stated in the opinion of the court.

This cause was heard before Denning, Judge, at April term, 1850, of the Circuit Court of Union county. A judgment was rendered for the plaintiff below on the following note : “ Twelve months after date, for value received, ! promise to pay G. W. Allen, or W. H. Reed, his agent, fifty dollars, or as soon as I can sell the above amount of Allen’s vegetable tonic. Witness my hand and seal, Oct. 7,1847.

<p>This cause was heard before S. S. Marshall, Judge, at the July term, 1853, of the Gallatin Circuit Court.</p>

This was an action of trespass against the appellants for trespass, in wounding cattle. The action was commenced before a justice of the peace, and taken by appeal to the Circuit Court of Franklin County; where the cause was heard before Denning, Judge, and a jury, at September term, 1853. The Wildermans prayed this appeal.

This cause was heard before Denning, Judge, and a jury, at the May term, 1852, of the Jackson Circuit Court, and resulted in a verdict and judgment for the defendant in error. The facts will be found in the opinion of the court.

This cause was heard before Underwood, Judge, at the May term, 1853, of the Clinton Circuit Court, on an appeal from the county court of that county.

C This cause was heard before S. S. Marshall, Judge, at the May term of the Jefferson Circuit Court. The facts of the case are stated in the opinion of the court.

This appeal brings before the court the record of two causes, which were consolidated, and in the circuit court a decree was entered disposing of both. On the 10th of March, 1847, the defendant Sloo, executed a mortgage to Albert G. Caldwell and Ebenezer Z. Ryan, assignees of the Bank of Illinois, conveying a number of town lots and other lots of land, to secure the payment of two notes of the same date.

In these cases, similar proceedings were taken to recover damages, by assessment, for certain timber and material taken and used by the defendants in error, the property of the plaintiffs in error.

This suit was heard at the April term, 1852, of the Edwards Circuit Court, by S. S. Marshall, Judge, who dissolved a preliminary injunction which had been granted, and dismissed the bill. The bid of Bessenden was one thousand dollars, the tender of Scofield, as judgment creditor, to the sheriff, was for $675.00.

At the October term, 1846, of the Hardin Circuit Court, a decree upon foreclosure of mortgage, at the suit of Richard S. Threlkeld et al. v. The heirs of James Anderson, the decree ordered that execution should issue to be levied upon the mortgaged premises or so much thereof as would be sufficient to pay the demand, interest, and costs, and that Lewis Lavender (who was sheriff) be appointed commissioner, and after advertising in four public places for six weeks previous to…

This action was originally brought before a justice of the peace of Jackson county upon a note of hand, who rendered judgment in favor of tlm-phiirrti-ff for twenty dollars and thirty-nine cents, from which the plaintiff took an appeal to the circuit court.

<p>ERROR TO SANGAMON.</p> <p>In an action for assault, battery, and imprisonment, if the plea to it professes to answer the assault, ¿¡•o., and imprisonment, the Sfc. will make the plea broad enough to answer the battery complained of.</p> <p>The powers of the cities and their ministerial officers, and their ministerial duties continue and were not changed by the new constitution. And the city marshal of the city of Springfield has the power to arrest, without warrant, any offender, for violations of certain ordinances, committed in his presence.</p> <p>The principle laid down in the case of The People v. Maynard, 14 HI. Rep., does not affect the general police powers of cities, but has reference only to the judicial powers of mayors, acting as a court under city ordinances.</p>

This cause was heard before Emerson, Judge, at June term, 1853, of the Sangamon Circuit Court. This was a case in the Sangamon Circuit Court on appeal from a justice of the peace, in which Baker was plaintiff, and May defendant. On the trial in the circuit court, the plaintiff offered in evidence two notes given to plaintiff by defendant, and closed his case.

This bill states, that in September, 1847, Evans was owner in fee-simple of 220 acres of land in controversy; that he stipulated verbally with Smith that he might sell the land to Clement, and that he (Evans) would execute a quitclaim deed for it, deliverable to Smith as an escrow, he to have executed by Clement a deed of trust on same lands to secure note of $1,000 to Evans, payable 1st January, 1849, as also deed of 128 acres of land in Madison county, concurrently with…

On the 22d of November, a. d., 1852, the complainants Lowry and Filley, filed a bill against the defendants Wright, Duncan, and Foster, in which it is alleged that Wright was, on the 31st of January, 1852, by contract with Duncan, the owner of the legal or equitable title to lot No. 13 in block 21, in town of Waverley, in county of Morgan; on which lot was a house and other improvements made by Wright, who was in possession of the same; that Lowry and Filley respectively had…

<p>ERROR TO CLARK.</p> <p>While the most usual mode of foreclosing mortgages is by ordering the mortgaged premises to be sold, yet this is by no means the only mode.</p> <p>The power of strict foreclosure is frequently exercised, and indeed it is probably never refused where the interests of both parties manifestly require it, as is often the case; except in such a case, it never should be exercised, Such cases may frequently arise, as where the mortgagor is insolvent and the mortgaged premises are not of sufficient value to pay the debt and costs.</p> <p>Although the statute regulates the terms of the redemption of mortgaged lands, sold under decrees for foreclosure, it does not in terms prohibit strict foreclosures. And the court may well presume that it was not mere inadvertence on the part of the legislature, that the power to enter such decrees was not taken away.</p> <p>In a strict foreclosure, it is not necessary for the decree to specify in whom the legal title to the land shall be vested. By barring the equity of redemption, it confirms the title in the mortgagee.</p> <p>Bespondent cannot object to the sufficiency of the complainant’s proof, where the bill has been taken as confessed.</p> <p>It was not erroneous to allow the sheriff, in the court below, to amend his return, after he had gone out of office, and after the decree had been entered.</p>

<p>The cause was heard before Woodson, Judge, at November term, 1853, of the Morgan Circuit Court.</p>

This suit was heard before Davis, Judge, at November term, 1853, of the Sangamon Circuit Court. See statement of case in the opinion of the court.

In this case the parties entered into a written contract about ditching to be done by McAvoy for Sibert and others. McAvoy did the work as the parties directed, and upoú the settlement for the work, Sibert refused to pay according to the measurement contended for by McAvoy, and he sued in a court of law for his work.

<p>These proceedings in the court below, were had at October term, 1853, of the Morgan Circuit Court, Woodson, Judge, presiding.</p>

This was ejectment, brought by Martin against Noakes. Jury waived, and trial by the court. Plaintiff gave in evidence, — 1. Patent from United States to Philip W. Hackett, dated January 3, 1818. 2. Deed from Hackett to plaintiff, bearing date December 15, 1818, and recorded February 4,1820, in Madison county. Possession by the defendant was admitted. Defendant gave in evidence, — 1. Patent from United States to Philip W. Hackett, dated January 3, 1818. 2.

<p>This suit was heard before Woodson, Judge, at May term, 1849, of the Macoupin Circuit Court.</p>

The bill alleges that Soulard conveyed certain property in St. Louis to trustees, to hold in trust for appellant, a married woman, provided she shall pay out of her separate estate, the sum of $9,000, payable in four instalments. That said Soulard agreed to complete the improvements then in progress, by the 1st October, 1846.

The bill in this case sets forth, that, at the April term of the Circuit Court of Pike county, Illinois, a. d. 1846, one Cyrus Knapp recovered a 'judgment against James Holloway for $11.12^ and costs of suit; that an execution issued on this judgment on the 21st of May, 1845, directed to the sheriff of Pike county, which was returned “ no property found; ” that an alias execution issued on the same judgment on the 26t.h of June, 1846, directed to said sheriff, and was by him…

<p>ERROR TO ST. CLAIR.</p> <p>The statute required that sales of land for the taxes of 1843, should be made on the second Monday succeeding the first day of the term at which the judgment was rendered; if more than two weeks intervene between the commencement of the term and the sale, it is illegal and void.</p>

This was an action of ejectment brought by the plaintiffs, who were plaintiffs below, to recover from defendant the possession of lot No. 4, in block No. 51, in Bigelow & Underhill’s addition to Peoria, situate on a part of the north-east fractional quarter of section 9, T. 8 N. 8, E. of the fourth principal meridian. The declaration contained two counts. The first claimed the whole lot; the second the undivided two thirds part of said lot. The defendants plead not guilty.

<p>This cause was heard at the March term, 1853, of the Hancock Circuit Court, O. C. Skinner, Judge, presiding.</p>

<p>ERROR TO MENARD.</p> <p>Tn ejectment, if the party allows the year to elapse without getting a judgment vacated in the circuit court, and runs his chance of getting it reversed in this court, and fails, the judgment becomes conclusive, and he has no remecty.</p> <p>Where an appeal is taken or writ of error prosecuted, the statute still gives the circuit court power to vac site the judgment within the year.</p>

This proceeding was heard before O. C. Skinner, Judge, at October term, 1853, of the Hancock Circuit Court . This was a proceeding by quo warranto against* the defendants, as county judge and associate justice of Hancock county. Hancock adopted township organization under the law of 1849, by a vote which is admitted in the record to have been legal. Under the new township organization law of 1851 a new vote was taken.

This cause was heard before Emees on, Judge, at May term, 1853, of the Shelby Circuit Court. Mary Jane Stewartson, the appellant, was married to William Stewartson, the appellee, in the year 1848, and had, at her marriage, $320 and upwards, which afterwards came to the use of the appellee, and was appropriated by him. That shortly after the marriage, appellee, with $40 of appellant’s money, entered in the name of the appellant, a forty acre tract of land.

This cause was heard before O. C. Skinner, Judge, at October term, 1853, of the Adams Circuit Court. On the 9th day of May, 1853, Jane C. and Sarah Kennedy filed their bill in the Adams circuit court in chancery, against Robert Weiant, Lovinia Otto, Charles Otto, Caroline Troxell, William H. Troxell, Sabina Otto, Henry Northup, Eli Ebert, and A. B. Wheeler, all of whom are non-residents except Ebert and Wheeler, and also filed affidavit of such non-residence.

<p>This suit was tiled before Woodson, Judge, at May term, 1853, of the Macoupin Circuit Court.</p>

This cause was heard before Walker, Judge, at June term, 1853, of the Adams Circuit Court. This was a suit in chancery brought by the defendant Wood against the legal representatives of his cosecurities upon the administration bond of Daniel G. Whitney, as administrator of Nathaniel Pease, deceased, to recover contribution for moneys paid by him as such security, as he insists, to one of the heirs of said deceased.

This cause was heard before D. M. Woodson, Judge, without the intervention of .a jury, at March term, 1853, of the Morgan Circuit Court. McConnel recovered judgment, and Critzer appealed.

This cause was heard before Underwood, Judge, at August term, 1853, of the Madison Circuit Court. This is an action of wilful detainer, brought by Hunter against Silvers, to get possession of property in Alton. Before the justice, a verdict was rendered for the defendant; from which an appeal was taken to the Madison circuit court. In that court a verdict was also rendered for the defendant, Silvers; from which last decision the plaintiff brings this suit to this court.

<p>This case is stated in the opinion. The cause was heard before Woodson, Judge, at October term, 1853, of the Morgan Circuit Court.</p>

This cause was heard before Underwood, Judge, at October term, 1853, of the Bond Circuit Court. The ease is stated in the opinion of the court The cause was, by consent of parties, transferred to the supreme court to be held in the second grand division, at Springfield.

This cause was heard before O. C. Skinner, Judge, at March term, 1852, of the Adams Circuit Court. The fourth plea is a plea of total failure of consideration. It sets forth, that at the giving of the note the plaintiff represented that he had the exclusive right to Page’s portable sawmill, and agreed to convey the same, (that is, said exclusive right,) to defendants, by deed of warranty, in consideration of which, defendant executed the note.

<p>These cases were heard before Woodson, Judge of the Morgan Circuit Court, at October term, 1853.</p>

<p>This cause was heard before Woodson, Judge, at September term, 1853, of the Macoupin Circuit Court.</p>

This cause was heard before Woodson, Judge, at March term, 1853, of the Morgan Circuit Court. The case will be found stated in the opinion of the court.

In May, 1849, Gaty, Me Cune, and Glasby, filed their bill for a lien, against Thomas J. Casey and others, setting forth that on the 24th day of July, 1848, they sold to Casey, in St. Louis, Missouri, two large steam-boilers and fire gauge cocks, to be used by said Casey in repairing the machinery belonging'to a mill, in the county of Adams, State of Illinois, owned and occupied by said Casey; the said Casey agreeing to pay $978.05, which boiler and gauge cocks were used by…

Martin T. Kurtz, as surviving partner of the firm of M. T. Kurtz & Company, filed his bill, alleging that he, together with one Vines Davis, in the year 1850, being the owners of certain real estate in the county of Madison, which he describes, and upon which was a steam flouring mill, formed a copartnership for the purpose of carrying on the milling business, and that afterwards one John Loyd became a member of said copartnership, paying to Kurtz & Davis seven thousand…

<p>APPEAL PROM MACOUPIN.</p> <p>The plaintiff below entered into a contract with Macoupin county to 'properly feed and clothe every pauper sent to him upon the order of any one member of the county court, for a specified sum. Held, that he could recover no more than that sum from the county for taking care of a lunatic pauper, although the trouble and expense was increased by reason of the insanity. The terfi pauper, under the statute, includes lunatic paupers.</p> <p>A lunatic who was not a pauper would not be included within the agreement.</p>

<p>ERROR TO SCOTT.</p> <p>The limitation.'act of the 10th of February, 1849, was intended to have a prospective operation only.</p> <p>Where credit was originally given to one of two partners, the creditor cannot hold both liable, although both may receive the benefit of the transaction. Where testimony is so equally balanced,-that no conclusion can be drawn from it, it is the duty of the jury to decide against the party who holds the affirmative of the issue.</p> <p>A party who makes an affirmative allegation, must maintain it by proof, or the finding must be against him. His proof must be superior to that offered by his adversary.</p>

<p>Woodson, Judge, tried this case at May term, 1853, of the Menard Circuit Court.</p>

This cause was heard by the court, Woodson, Judge, presiding, without the intervention of a jury, at October term, 1851, of the Hancock Circuit Court.

This cause was heard before Skinner, Judge, at the October term, 1851, of the Adams Circuit Court. The facts are fully stated in the opinion of the court.

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

<p>ERROR TO MADISON.</p> <p>The failure of an assessor to make Ms return within the time designated by law, vitiates the assessment.</p> <p>Such defects cannot be cured by subsequent legislation, where the taxes have been collected, or where further proceedings were not necessary to secure their collection,</p>

<p>ERROR TO MADISON.</p>

<p>This cause was heard by Davis, Judge.</p>

<p>This cause was heard before Woodson, Judge, at the March term, 1853, of the Morgan Circuit Court.</p>

<p>This cause was heard before Wilkinson, Judge, at January term, 1853, of the Fulton Circuit Court.</p>

<p>This was a motion to dismiss a writ of error.</p>

<p>APPEAL EROM MORGAN.</p> <p>When a deed recites that full payment of the consideration for the land conveyed has been received, it is primQ, facie evidence of the fact; but this evidence may be rebutted by other proof.</p> <p>A note transferred by delivery merely, cannot be set off by the holder, in an action against him by a third party. The holder could not sue upon the note in his own name, and it therefore was not a legal subsisting cause of action in liis favor.</p> <p>Where a party is in quiet possession of land conveyed to him by deed in which the wife has not joined, he is not entitled in an action against him to claim credit on account of dower interest, where proceedings have not been commenced by the widow to obtain such interest.</p>

<p>ERROR TO MACON.</p> <p>An affirmative statute is á repeal by implication of a prior affirmative statute, so far as it is contrary thereto.</p> <p>In Illinois, the repeal of a repealing statute does not revive the prior existing laws.</p> <p>The law of 1853, relating to the selling of liquor, revived the law as it stood in 1845, and restored authority to grant licenses, and to punish for retailing liquor without license.</p>

<p>ERROR TO MORGAN.</p> <p>"^ie F*lic is an ever-existing grantee, capable of taking dedications for public uses, and its interests are a sufficient consideration to support them.</p> <p>Parol dedications are good.</p> <p>The intention of a party, manifested hy express consent, or acquiescence in the user, will govern in determining what is a dedication.</p> <p>Privies in estate will be bound by the deeds and acts of their grantors, and they cannot resume a. grant after the public has entered upon its use, while the use continues.</p> <p>.A deed cannot be delivered and accepted partially, for the purpose of conveying title to the grantee, and yet so as not to give effect to the conditions, recitals, and limitations in it.</p> <p>It will be presumed that deeds duly acknowledged and recorded, have been delivered to and accepted by the vendee, and that parties and privies as well as the public, are acquainted with their contents. Whoever questions these facts, must assume the burden of proving them.</p> <p>A right by prescription cannot bo raised against the consent of the owner; hut the use may be so long unobjected to, as to authorize the finding of an implied consent, and to raise a presumption of a grant.</p> <p>In actions of ejectment in this State, the general issue only shall he pleaded.</p> <p>Mo inference or conclusion will be draiyn in this State against the owner of land lying uninelosed, which is travelled over, to establish an easement in favor of the public.</p>

This was an action of debt commenced by the defendant in error against the plaintiff in error, on three promissory notes, in the Fulton Circuit Court, on the 5th of February, 1850. The declaration contained nine special counts and the usual common counts. A general demurrer was sustained to the 3d and 6th counts, and was overruled to the 9th count.

The bill recites that J. W. Whitney, in 1839, was seized in fee of lot 1, on block 8, Wheelock’s addition to Quincy. “ That on the 18th of April, 1839, for the consideration of §100 contributed by the Roman Catholic church and congregation of Quincy, and paid to him, conveyed the north 100 feet wide of said lot to the- right reverend Joseph Rosati, Roman Catholic bishop of the diocese of St. Louis, and his successors in said diocese, for ever, for the use and accommodation…

This is an action of trespass guare clausum fregit, originally commenced in the county of Fulton, and taken by change of venue to McDonough.

<p>This cause was heard before Davis, Judge, at November term, 1853,' of the Sangamon Circuit Court. The opinion furnishes a statement of the case,.</p>

<p>This cause was heard before Woodson, Judge, and the facts will be found in the opinion of the court.</p>

This case was originally commenced in Morgan Circuit Court, but was removed to Scott County by change of venue. It was tried at October term, 1853, before Woodson, Judge..

<p>This cause was heard by Davis, Judge, at March term, 1853, of the Sangamon Circuit Court. The opinion furnishes a full statement of the case.</p>

<p>ERROR TO SANGAMON.</p> <p>A party having a right of action against the ancestor, is not (in this State) to be delayed in his remedy, because of the nonage of those on whom the law casts the liability.</p> <p>Legal and equitable remedies stand upon the same footing in this respect.</p>

<p>APPEAL PROM OREESE.</p> <p>Upon the demise of a judgment debtor, if an execution issue upon the judgment, and the decedent’s real estate is sold thereon, and a sheriff’s deed obtained without a notice having been first given to the executor or administrator of said estate, as required by the statute, no title passes.</p> <p>When property is sold under execution, and a sheriff’s deed thereon is offered in evidence, but no judgment is proved to support such execution, no title passes to the purchaser.</p> <p>Quaire, whether a judgment obtained against the conservator of an insane person, becomes a lien upon the real estate of such insane person which can be enforced by execution.</p> <p>A judgment rendered for taxes on a day prior to the day named in the notice of the collector, is void.</p> <p>Also a judgment rendered for taxes, when the report of the collector does not substantially comply with the statute, is equally void.</p>

<p>This cause was heard before O. C. Skinner, Judge, at October term, 1853, of the Hancock Circuit Court.</p>

The opinion shows the facts of the case. The cause was heard before Woodson, Judge, at April term, 1853, of the Greene Circuit Court.

<p>This cause was- heard before Woodson, Judge, at April term, 1853, of the Macoupin Circuit Court.</p>

<p>This case was heard before Wilkinson, Judge, at January term, 1853, of the Fulton Circuit Court.</p>

<p>APPEAL FROM MORGAN.</p> <p>In an action upon a record which shows that an appearance was entered for several defendants, one only being served, the plaintiffs are entitled prima facie to a judgment. A recovery might be defeated by showing a want of authority on the part of the attorneys who entered an appearance.</p>

<p>This cause was heard before Woodson, Judge, at October term,' 1850, of the Macoupin Circuit Court.</p>

<p>ERROR TO GREENE.</p> <p>The evidence upon which a decision is founded must appear of record, in order to have it reviewed in this court.</p> <p>The submission of a pending action to arbitration operates as a discontinuance of it.</p>

<p>This cause was heard before Woodson, Judge, at September term, 1853, of the Macoupin Circuit Court.</p>

<p>APPEAL FROM PIKE.</p> <p>Appeals from penalties for assault and battery, should be entered before the clerk of the circuit court. The act of the 9th February, 1853, did not change existing acts, as to the mode of taking an appeal; but extended the right to appeal, to cases not previously provided for, and authorized the amendment of appeal bonds.</p>

<p>The facts of this case appear in the opinion of the court.</p>

. This cause was tried at March term, 1852, of the Madison Circuit Court, Underwood, Judge, presiding. The opinion of the court embodies a statement of the case.

<p>APPEAR EROM MORGAN.</p> <p>A party is not justified in repeating a slanderous charge, although he names the author at the time, unless it appears that he acted without any malicious intent. The quo animo with which the charge is repeated, is the controlling consideration.</p>

<p>This cause was heard by the court, Skinner, Judge, presiding, at March term, 1853, of the Adams Circuit Court.</p>

<p>This cause was heard at the October term, 1853, of the Brown Circuit Court, Walker, Judge, presiding.</p>

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

This was an original proceeding, in this court, for a mandamus against Smith, John Riley, and E. C. Wilcockson, supervisors of the towns of Ellisville, Putnam, and Liverpool, in the county of Fulton. The facts of the case sufficiently appear in the opinion of the court.

These suits originated in Madison county, but were removed to the county of. St. Clair. They were tried at August term, 1853, before Underwood, Judge.

<p>This cause was heard before J. G. Wilson, Judge, at the March term, 1854, of the McHenry Circuit Court.</p>

<p>APPEAL FROM LA SALLE.</p> <p>Where a corporate company receives money and gives a mortgage to secure Its repayment, the company cannot avoid liability by questioning the authority of the persons making the loan.</p> <p>Where the condition of a bond and mortgage is that on failure to pay an instalment of interest when due, the principal should immediately become payable, a neglect to pay an instalment of interest when it becomes due, works a forfeiture of the mortgage.</p>

This cause was tried before Peters, Judge, at March term, 1854, of the Peoria Circuit Court. This was an action of assumpsit on a promissory note, which is as follows: — “ Peoria, October 7th, 1851. On or before' the first day of March next, I promise to pay L. Nathan Platter, or order, the sum of two hundred and sixty dollars, for value rec’d. Smith Frye.” Which was indorsed as follows : — “ For value received, I assign the within note to Frederick Menkins.

Turs was a proceeding commenced before a justice of the peace of Dat Page County, and taken by appeal to the Circuit Court of that county, and by change of venue to Kane County.

This was a proceeding to set aside a fee bill and execution issued by Bolton against Frink & Co. Bolton had a judgment against Frink & Co., which was pending by appeal in the supreme court; while so pending a settlement was made, and a draft as follows was given and paid: — • « $650. “ Pay to J. N. Arnold or order, six hundred and fifty dollars, being in full for judgment of Bolton v. Frink and Walker.

This cause was heard before J. M. Wilson, Judge,, at February term, 1854, of Cook County Court of Common Pleas. Verdict and judgment for plaintiff. Defendant appealed. The facts of the case sufficiently appear in the opinion of the court.

Judgment was rendered by Peters, Judge, at November term, 1853, of the Peoria Circuit Court, in favor of Kellogg, for return of the wheat in the declaration mentioned, and his costs, and in favor of O’Keefe for one cent damages and his costs. O’Keefe prayed this appeal.

All the facts of this case are stated in the opinion of the chief-justice.^ _ _ _ _ The application was heard in the circuit court of Kane county, before J. G. Wilson, Judge, at May term, 1853.

The declaration avers “ the issuing of a capias ad respondendum in favor of Robert Fergus, the plaintiff, against the defendant, Henry K. Davis, from the clerk’s office of the Cook County Court, of Cook County, on the 20th day of August, 1849, directed to the sheriff of Cook County, setting out the substance of the writ.” That the clerk indorsed the said writ for $122-rü°o bail. That the writ so indorsed was, on the 20th of August, 1849, delivered to the sheriff to execute.

<p>This cause was heard before J. M. Wilson, Judge, at February term, 1854, of the Common Pleas Court of Cook County.</p>

This was an action on the case brought by Conger against the railroad company, to recover damages occasioned to his land by the trespassing of cattle thereon, owing to the omission of the company to fence on each side of the right of way granted to the company. A demurrer was filed to the declaration, which was sustained in the circuit court, by Leland, Judge, at the March term, 1854, of the Bureau Circuit Court.

cause was heard before Peters, Judge, at March term, the Peoria Circuit Court. was a motion entered by the said Nolte for a judgment n award made by William C. Boilvin, William Kellogg, orace G-.

<p>APPEAL EEOM PEOPvIA.</p> <p>A person who is elected a justice of the peace for a “ precinct,” if he is subsequently elected to the same office for a “ township,” and accepts the latter, it is an implied resignation of the first office, which becomes vacated.</p>

<p>This cause was heard before Leland, Judge, at the October term, 1853, of Bureau Circuit Court.</p>

<p>This cause was heard at the December special term of Boone county Circuit Court, J. G. Wilson, Judge, presiding.</p>

Calvin McCumber, the ancestor of the complainants, on the fourth’ day of August, 1842, purchased from Joel Walker lot two in block seven, in Walker’s addition to Belvidere, for $100, and took a bond for conveyance of the lot, on payment of the money in one and two yéars, with interest, payable annually, for which McCumber gave his notes. McCumber paid the first of these notes and a part of the other before his death.

On the eighth day of February, 1853, Sarah Eddy, Charles V. Dyer, and B. W. Lyon, filed, in the Cook county Court of Common Pleas, M. Skinner presiding, an application, stating that Ira B. Eddy had estate real and personal, and requesting that a jury might be ordered to ascertain whether said Eddy was a lunatic or distracted person. A jury was ordered, which found said Eddy to be an insane person.

This was an information-in the nature of a quo warranto, against Robert S. Wilson, for usurping, intruding into, and unlawfully holding the office of judge of the recorder’s court of the city of Chicago.

<p>This cause was heard before Peters, Judge, at May term, 1854, of the Peoria Circuit Court.</p>

<p>This cause was heard before J. G. Wilson, Judge, at March term, 1854, of the McHenry Circuit Court.</p>

<p>This cause was heard at March term, 1854, of the McHenry Circuit Court, by J. G. Wilson, Judge.</p>

This cause was heard before Peters, Judge, at November term, 1853, of the Fulton Circuit Court, and a decree rendered for the complainant Utter. Ross took this appeal.

<p>This cause was heard before J. M. Wilson, Judge, at May special terra, 1853, of Cook county Court of Common Pleas.</p>

<p>ERROR TO COOKE.</p> <p>An auctioneer is the agent of vendor and vendee, and his entry in the sale book at the time of the sale, containing a description of the property, real or personal, sold, the names of vendor and purchaser, the price and terms, signed by a person thereto authorized by both parties, is a sufficient memorandum in writing, within the intent of the statute of frauds, and binds both parties.</p> <p>The memorandum, of the auctioneer must on its face, or in connection with some other writing, contain every thing necessary to show the contract between the parties, so as to avoid a resort to parol proof.</p> <p>An entry by a clerk, under the direction of the auctioneer, will be regarded as the act of the auctioneer.</p> <p>The authority of the auctioneer need not be in writing.</p> <p>A party may by parol authorize another to make a contract concerning real estate, which, if followed, will be obligatory.</p>

This was an action of assumpsit by Stummel against Holmes, on common counts, for work and labor done; plea, the general issue; trial and verdict for Stummel for $193.19, before Leland, Judge, at October term, 1853, of the Marshall Circuit Court. Stummel proved that he had done grubbing for Holmes, commencing his work in the spring of 1852, and continuing till the spring of 1853.

<p>This cause was heard before Wilkinson, Judge, at October term, 1852, of the Carroll Circuit Court.</p>

This was a proceeding against the plaintiffs in error, by quo warranto, claiming that they were usurping certain ferry franchises in the city of Galena. A demurrer was filed to this proceeding, which was overruled in the circuit court.

<p>The judgment in this case was pronounced by Henderson, Judge, at September term, 1852, of Will County Circuit Court.</p>

<p>APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.</p> <p>A. agreed to deliver B. all the lumber which A. should make at his mills within a specified time, at a fixed price, of which one hundred dollars was paid at the execution of the agreement; A. failed to perform, whereupon B. sued upon the special agreement and recovered judgment; afterwards B. sued for money had and received, to recover the $100, paid on the execution of the agreement. Held, that the former proceedings and judgment were a bar to a recovery in the second action.</p>

<p>This cause was tried before Morris, Judge, and a jury, at November term, 1853, of the Cook Circuit Court.</p>

<p>APPEAL PROM KANE.</p> <p>In this State a plea of justification in slander, if interposed in good faith, in the honest belief that it will be sustained, should not, as a matter of course, aggravate the damages. And whether such plea was interposed upon proper motives, is for the jury to consider.</p> <p>A plea of justification in slander, is not an aggravation of the offence.</p>

At the March term, 1852, Curtenius & Griswold filed their declaration in ejectment in the Peoria Circuit Court, against Hardin Davis, to recover the S. W. 18, 10 N. 7 E. in said county. Plaintiffs claimed title in fee-simple, and at the same time said Chapin, the landlord of Davis, was substituted as defendant, and pleaded the general issue to the declaration.

The opinion of the court gives a statement of the case. The judgment complained of was rendered by Shelton, Judge, at November term, 1853, of the Jo-Davies Circuit Court.

<p>This cause was heard before Morris, Judge, at May term, 1854, of Cook Circuit Coúrt.</p>

The proceedings in this case were had before Onslow Peters, Judge, at March term, 1854, of the Peoria Circuit Court. The railroad company instituted proceedings under chapter 92 of the Revised Statutes, to procure the right of way over the land of Bryant. An assessment was made, from which Bryant took an appeal to the circuit court. The company dismissed the proceeding in the circuit court, and Bryant had judgment for costs.

This cause was heard before Leland, Judge, at March term, 1853, of the Bureau Circuit Court, who rendered- a judgment against the plaintiffs in error on a scire facias on a recognizance, executed by Charles Besimer, as principal, and Albert Sherwin as security; conditioned for the appearance of the said Besimer at the October term, 1853, of said court, to answer a bill of indictment for the crime of adultery.

<p>This cause was heard before J. M. Wilson, Judge, at October term, 1853, of Cook county Court of Common Pleas.</p>

<p>APPEAL EBOM COOK.</p> <p>The deed of a guardian, without a confirmatory order of the court, does not pass title.</p> <p>The discretion to be used by the court in confirming sales of guardians, must conform to established principles.</p> <p>The English practice of opening biddings at such sales, is not adopted in this State.</p> <p>As a general principle, mere inadequacy of price is not a sufficient cause for setting aside a sale.</p>

<p>Motion to dismiss appeal on the part of appellees.</p>

<p>This cause was heard before Peters, Judge, at March term, 1854, of the Peoria Circuit Court.</p>

<p>This was an appeal from McHenry county. The cause was heard before J. G. Wilson, .Judge, at November term, 1853, of McHenry Circuit Court.</p>

<p>APPEAL FROM KANE.</p> <p>Every intendment is made in favor of an award.</p> <p>It will not be presumed that arbitrators acted fraudulently, because they rejected evidence in relation to an issue before them, but the inference will be that other evidence had so far settled that inquiry as to render further proofs unnecessary.</p> <p>Where allegations charge fraud and corruption against arbitrators, the proof must pursue the charges; error of judgment in law, mistake of facts, or in the amount allowed, cannot be shown.</p> <p>A mere allowance of too little or too much, will not raise in itself a presumption of fraud.</p> <p>In the absence of fraud, where matters of law and fact are referred to arbitrators, their reward is conclusive, if they are silent as to the law on the face of the award, although they may mistake it.</p>

This was an action of covenant brought upon a sealed instru-' ment, being a certificate under the seal of Johnson, who was the defendant below, that he had employed Amos F. Culver and Hiram Bright, to prosecute an action of ejectment to recover certain property therein described, and that he had agreed to pay said Culver & Bright, as fees, the value of one half of said property, or one half of said property as they, (Culver & Bright,) should elect, providing they recovered…

This cause was heard before J. G. Wilson, Judge, and a jury, at February term, 1854, of Kane Circuit Court. Verdict and judgment for plaintiff below for one thousand dollars. Motion for new trial overruled.

This was an action brought by Aokerland and others to recover the value of goods missing from a box originally shipped from Cincinnati, but delivered to Scholes & Co., at St. Louis, to be shipped on the steamer Movastar, and delivered at Peoria. Siegman H. Eauh was examined by virtue of a dedimus from the Circuit Court of Peoria county.

<p>ERROR TO WINNEBAGO.</p> <p>Four persons were named commissioners, to act until an election, and they and their successors were named a corporation, with power to declare the rate of taxation, and collect taxes, apply the same to the support of a bridge, &c.; the act did not state how many should constitute a quorum. Held, that a majority could act. And that a warrant issued by them without a seal (none being required by the act) was good.</p> <p>In such a case, where the act directs that a list of the amount and valuation of the taxable property, (and not of the property itself,) shall be made in a particular way, it is good.</p> <p>The burden of constructing and repairing roads and bridges is upon the counties, unless by custom or statute it is placed elsewhere, and this burden may be divided between the county and smaller municipal divisions, at legislative discretion.</p> <p>The Rockford Bridge Company is not a private individual enterprise.</p> <p>The legislature may direct the county authorities to allow just claims out of the public treasury, or may fix the amount and direct the means to be raised by taxation for their payment.</p> <p>The public, county, and township funds are under legislative control.</p> <p>County taxes create a lien, and take precedence and priority to judgments, nor is any property free from levy and sale for the payment of them.</p>

Alexander Young and others commenced their action of ejectment against Dowling, to recover certain lots in the town of Galena, which Dowling had purchased at a guardian’s sale some years before. Dowling filed this bill to enjoin this suit at law, and to have his title confirmed.

<p>APPEAL PROM JO-DAVIES.</p> <p>In replevin where there is judgment of retorno for costs, and an inquiry of damages for the detention, a jury may be called to assess the damages, or the court may assess.</p> <p>In such case the value of the use of. the property during detention, is the true measure of damages, and not the value of the property alone. Speculative or expected profits from the use of the property, or smart money, should not be given.</p> <p>Testimony compounded of fact and opinion, in valuing the use of property by those acquainted with the kind and its uses, is proper for consideration in estimating damages in replevin.</p>

The petition showed that the city of Peru was organized according to charter, and first officers elected in April, 1851; was divided… Held: they have been at the same places in each ward, the council first giving notice, and by resolution or order appointing the voters in each ward as judges of the particular election, who have acted, or if any failed to attend, those present filled vacancies; the judges appointing clerk or clerks, the votes, given by ballot, the voters…

<p>This cause was heard before Morris, Judge, at October term, 1853, of the Lake county Circuit Court.</p>

This suit was commenced before a justice of the peace, and taken by appeal to the circuit court of Bureau county, by Bosworth. At October term, 1853, of the Bureau Circuit Court, the cause was heard before Leland, Judge, and a jury, and resulted in a verdict and judgment for Frankberger. Bosworth brought the case to this court.

The facts of this case are stated in the opinion of the court. This cause was tried at May term, 1854, of the Kane Circuit Court, J. G-. Wilson, presiding.

<p>APPEAL PROM KENDALL.</p> <p>Where a party, at a public land sale by the government, agreed by parol with the person in possession of such land, and who had made improvements thereon, to bid off his claims and advance the money at 20 per centum per annum, and took the title in his own name, held that such a contract is not within the statute of frauds, but is a loan, and subject to the objection of usury for the excess of interest over the lawful rate, and that upon the payment to the person entering the land of the principal and lawful interest, equity will compel him to convey the land to the person, or his assigns, for whose benefit the land was entered. Held, also, that any attempt to complicate the transaction by taking the title in a third person’s name under the pretence that it was for such third person, will not prevent a court of equity from investigating and ascertaining its true character, and if satisfied that this machinery was used to conceal its true character of a loan, of so declaring it. Held, also, that the purchaser and grantee of the person entering land on such a contract, ivas bound to take notice of the equitable rights of the person in possession of the land.</p> <p>Held, also, that the purchaser and grantee of the person having the equitable title under such a contract, might file his bill to redeem said land, and by executing a release, could use liis grantee as witness to prove the contract, and that its terms had been complied with by him, the witness.</p>

This was a bill originally filed in the Winnebago Circuit Court by the widow and infant child of Levi Moulthrop, deceased, to redeem the lands in said bill described, and for an account, &c. Afterwards the widow intermarried with Benjamin Smith, who is also made party complainant. The character of the bill sufficiently appears from the opinion.

<p>This cause was heard before R. S. Wilson, Recorder, at March term, 1854, of the Recorder’s Court for the city of Chicago.</p>

<p>This cause was heard before Davis, Judge, at May term, 1853, of the Tazewell Circuit Court.</p>

<p>ERROR TO ROCK ISLAND.</p> <p>Where an order establishing a road is introduced in evidence, it is unnecessary, in the first instance, to go further and show that the previous steps required by the statute have been taken.</p> <p>The presumption in such case is, that the preliminary proceedings were regular, and such as justified the order of the court establishing the road!</p> <p>The law of 1835 did not require a survey of the road to be made and filed, but provided that the viewers should designate the course of the road by stakes, marked trees, &c., and the landmarks made by them, and not their report, will control in determining the locality of the road.</p> <p>The fact that a road is but little used, does not authorize a party to close it up.</p>

<p>On the 19th day of May, 1836, George H. Wright, of Warren county, Illinois, received of Sylvester Blish, of Henry county, for Aaron Kellogg and his friends, in Vernon, Connecticut, the sum of $400, for the purpose of procuring a quarter section of land in Warren county.</p> <p>On the 22d day of March, 1842, Wright filed in the district court for the district of Rlinois, at Springfield, his petition under the late bankrupt law for the purpose of procuring a discharge from his debts ; and on the 6th day of December, 1842, he was duly discharged from his debts, and received his certificate in due form of law. Some time afterwards Wright died intestate, and Peleg Matteson and W. W. Porter were appointed administrators of his estate, and entered upon the discharge of then-duties as such. Aaron Kellogg and Hubbard came into the county court sitting as a court of probate, and filed their claim against the estate of George H. Wright, deceased, and asked that the same be allowed to them, and paid by the plaintiffs in error, in due course of administration. The case in the county court was heard upon the deposition of Sylvester Blish; and the claim and interest allowed, amounting to the sum of eight hundred and twelve dollars and fifty cents, from which allowance the administrators prosecuted their appeal to the circuit court of Warren county.</p> <p>The cause was there heard, at April term, 1854, before H. M. Wead, Judge, a jury being waived, and a judgment rendered against the plaintiffs in error, for the sum of about §828.</p> <p>To reverse which judgment, the plaintiffs have prosecuted their writ of error in this court.</p>

This cause was heard at May term, 1854, of the Cook Circuit Court, Morris, Judge, presiding. A demurrer was sustained to the declaration, and the plaintiff brought the cause to this court.

<p>APPEAL FROM BOONE.</p> <p>It is too late to object on error that there was no formal order directing a feigned issue, and that the court had, without such order, considered the finding of the jury.</p> <p>The real character of a transaction and the true intention of the parties may be inquired into, in reference to a sale of land, to ascertain whether a loan of money only, or a sale, was intended.</p> <p>On the trial of feigned issues the chancellor may order several new trials, until his conscience is satisfied; and he' may determine the case contrary to the finding.</p>

<p>This cause was heard by Leland, Judge, at November term, 1852, of La Salle Circuit Court.</p>

<p>This cause was heard before Leland, Judge, at November term, 1853, of the La Salle Circuit Court.</p>

This case was brought by the defendants in error, in an action of trespass on the case; the declaration contains six counts. The first substantiálly alleges, that the defendants, before and at the time of the delivery of the goods hereinafter mentioned, were common carriers of goods and chattels for hire, from Cleveland to Chicago.

This cause was heard by Peters, Judge, at the May term, 1854, of the Peoria Circuit Court.

This was an action of ejectment brought by Phelps against Smith in the Jo-Davies Circuit Court, to recover the undivided half of lots eight and nine in the town of Galena. Plea, not guiltyverdict, not guilty.' Cause heard before Sheldon, Judge, and a jury, at March term, 1854, of the Jo-Davies circuit court.

It appears that the second bill filed in this case was a tr*>v script of the first bill as amended, except that the oatJw ui the defendants to their answers were waived. The op' non gives a statement of the facts. ---- The decree in this case was entered by order of Peters, Judge, at May term, 1854, of the Peoria Circuit Court.

This was a bill filed to restrain Shoutz from building a dam across Big Rock Creek, in Kane county, because it would cause the water to flow the land of Hadden. A dam had been constructed at or near the same place, which was about to be replaced by another. The Circuit Court of Kane County, February term, 1854, J. G. Wilson, Judge, presiding, dismissed the bill.

The bill of exceptions in this case shows, that in November, 1851, the steamer Governor Briggs, running on the Illinois River between Peoria and La Salle, belonging to Luke Woods, the plaintiffs’ intestate, towed the canal boat “ Col. Butts,” from Peoria to La Salle; that there was no price agreed upon for the towing; but the usual and fair price was $40; that before the towing commenced, the owner of the canal boat and his son, asked witness how much he would charge for…

<p>This cause was heard before Woodson, Judge, q,t October term, 1853, of the Morgan Circuit Court.</p>