Volume 16 — Illinois Reports

<p>ERROR TO MASSAC.</p> <p>On a trial for murder, where it appeared that the deceased sought the accused at his own house with the design to arrest or assault him, having a hatchet in his hand, it is competent for the accused to show that the deceased had, on the day of his death, and at other times shortly previous, made threats against him.</p> <p>An instruction which may be understood by the jury as denying to the accused on trial for murder, the right to defend himself, unless his danger was not only apparently imminent, hut was real and positive, is erroneous.</p> <p>Actual and positive danger is not indispensable to justify self-defense.</p> <p>If one is pursued or assaulted in such a way as to induce in him a reasonable and well-grounded belief that he is actually in danger of losing his life, or receiving great bodily harm, under the influence of such apprehension he will be justified in defending himself, whether the danger was real or only apparent.</p> <p>Men, when threatened with danger, must determine from appearances and the actual state of things surrounding them, as to the necessity of resorting to self-defense; and if they act from reasonable and honest convictions, they will not be held responsible criminally, for a mistake in the extent of the actual danger, where other judicious men would have been alike mistaken.</p> <p>Although it may be positively proved that one of two or more persons committed a crime, yet if it is uncertain which is the guilty party, all must be acquitted.</p> <p>On a trial for murder, the law makes no distinction in its principles as to the color of the accused.</p>

This was an action commenced against Crews, before a justice of the peace, in which Mrs. Bleakley received a judgment for $50.95. Crews appealed to the Circuit Court, when judgment was renewed against him for $45.33, and costs. Crews then brought the case to this court. The cause was tried before Baugh, Judge, and a jury, at September term, 1854, of the Wayne Circuit Court.

<p>ERROR TO MARION.</p> <p>It is the duty of a sheriff to offer for sale real estate which he has levied upon, in separate parcels. He should endeavor to satisfy executions by the sale of as small an amount of property as possible.</p>

This cause was heard before Denning, Judge, and a jury, at September term, 1853, of Jackson Circuit Court. Verdict and judgment for the plaintiff in the Circuit Court. The defendant sued out this writ of error.

<p>This cause was heard before Underwood, Judge, without the intervention of a jury, at October term, 1854, of Washington Circuit Court.</p>

<p>This cause was heard before Harlan, Judge, at March term, 1851, of the Clay Circuit Court.</p>

<p>APPEAL PROM GALLATIN.</p> <p>A separate demand cannot be set off againt a joint demand, nor a joint debt against a separate debt.</p> <p>Demands are not the subject matter of set-off, unless they are mutual and between all the parties to the action.</p> <p>A party cannot avail himself of a matter as a set-off, unless it is a subsisting cause of action in his favor.</p>

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

<p>APPEAL EEOM PULASKI.</p> <p>An action will lie for money tortiously taken by force, even where it has passed out of the hands of the tort feasor before action brought.</p>

<p>ERROR TO GALLATIN.</p> <p>As a general rule, a parol submission to arbitration is valid; and so is a parol award as to the matters submitted.</p> <p>In all other cases than where a writing is required to pass the title to the thing in contest, a verbal submission and award will conclude the parties.</p> <p>A verbal submission to arbitrators cannot be made a rule of court, nor can judgment be entered on the award. But the award may be enforced by action, or set up by way of defense. Chapter VII. of the Revised Statutes has no application to this class of cases.</p> <p>A mere error of judgment by the arbitrators, as to the law or the facts, will not vitiate their award.</p>

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

<p>ERROR TO RANDOLPH.</p> <p>Where a partnership exists, and the interests of the respective partners are not proved, the law presumes that their interests are equal.</p> <p>A partner cannot charge his co-partner for his labor, care and diligence in the partnership business, unless there is a special agreement to that effect.</p>

This cause was heard before Denning, Judge, and a jury, at May term, 1852, of the Alexander Circuit Court. Verdict and judgment for plaintiff below, two thousand dollars.

<p>ERROR TO CRAWEORD.</p> <p>It is proper when a jury has found an informal and insufficient verdict, to send them out under instructions to find formally and fully; so as to determine the rights of the parties.</p> <p>Where four are sued in trespass, and service is had upon one, he may plead and proceed to trial; and the plaintiff may at any time, either before or after judgment, enter a non-suit as to the others.</p> <p>Where one appealed from a judgment of a justice of the peace, rendered against him and three others, for trespass to personal property, summons not having issued to the three from the circuit court, and a nolle prosequi being entered as to these; Held, that the twenty-ninth section of the “ Practice Act ” had no application to parties not before the court; and that as to the defendant served, a non-suit could not be entered after the jury retired.</p>

<p>ERROR TO RICHLAND.</p> <p>A party to whom a warrant for land has issued under the “Act granting bounty land to certain officers and soldiers who have been engaged in the military service of the United States," approved the 28th of September, 1850, may bargain or convey the same before the patent has issued.</p>

<p>ERROR TO WAYNE.</p> <p>Leave to amend a sheriff's return will be granted, as a matter of course.</p>

<p>This cause was heard before Hablan, Judge, at September term, 1854, of the Richland Circuit Court.</p>

<p>This cause was heard before Harlan, Judge, in the Clay Circuit Court, at September term, 1853.</p>

<p>This cause was heard' before Baugh, Judge, at August term, 1854, of Wabash Circuit Court.</p>

This cause was heard at August term, 1854, of the Hardin Circuit Court, before Parrish, Judge. The appellant, Thomas, in his right as trustee of the Bank of Illinois, exhibited his bill in chancery in the Gallatin Circuit Court against the defendants, Olney • and others, to obtain a decree for the payment of money secured by a mortgage executed by defendants to the Bank of Illinois, at Shawnee-town.

<p>This cause was tried before Denning, Judge, and a jury, at August term, 1853, of Hardin Circuit Court.</p>

<p>This cause was heard before Parrish, Judge, at April term, 1854, of Pope Circuit Court.</p>

<p>ERROR TO WILLIAMSON.</p> <p>No contract, promise, or assumpsit, or undertaking to pay for improvements upon the public lands, made after the purchase, can be implied in law, but the party claiming must show an express agreement to pay.</p>

<p>This cause was heard before Harlan, Judge, and a jury, at September term, 1853, of the Clay Circuit Court.</p>

The opinion of the Court furnishes a statement of the case. The cause was tried before Harlan, Judge, and a jury, at March term, 1854, of Crawford Circuit Court.

This case was heard before Walker, Judge, at November term, 1853, of the Cass Circuit Court. The plea to which the demurrer in the Circuit Court was sustained, is set out at length in the opinion.

This cause was originally commenced in the county court of Fulton County, and is founded on three promissory notes signed by Paschal Taylor, Eli Taylor and John Taylor, payable to John Coleman, and assigned in blank by the administrators of John Coleman, then deceased, two of which notes were without seal and the other under seal, and two of them joint and several, and the other joint.

This cause was heard before Woodson, Judge, and a jury, at December term, 1854, of the Macoupin Circuit Court. The suit was commenced before a justice of the peace, and taken by appeal to the Circuit Court.

This was a bill in chancery in the court below, filed by the appellant against Hunt and others for an injunction.

<p>This cause was heard by Walker, Judge, at April term, 1854, of the Mason Circuit Court.</p>

This cause was heard before Walker, Judge, at March term, 1854, of Pike Circuit Court. On the trial of the cause in the circuit court, after Harrison had closed his case, the Plank Road Company offered Daniel D. Hicks as a witness, who admitted on his voire dire that he was a stockholder and director in the company. The court thereupon excluded his testimony, although the act in question was presented to the court.

This was an agreed case from Macoupin County, setting forth that on the 9th of May, 1851, the deceased gave his note to the plaintiff for $450, to be¡ar interest from date, at the rate of ten per cent, per annum, for money loaned. Under the 95th section of Statute of “ Wills,” defendant gave notice of a day in the County Court of said county, for adjustment of claims against the estate of said deceased, when said note was presented and allowed in favor of the plaintiff.

This causo was hoard by Woodson, Judge, at May term, 1854, of Menard Circuit Court. The instructions, upon which the case was presented to this Court, are set out in the opinion.

This cause was heard before Woodson, Judge, and a jury, at October term, 1858, of the Morgan Circuit Court. Verdict and judgment for the defendant. The bill of exceptions shows that the defendant filed amended pleas, numbered two and three, and by special leave of the court the plaintiff was allowed to file four several replications to each of said pleas.

This cause was tried by Underwood, Judge, without the intervention of a jury, at September term, 1853, of the Madison Circuit Court. Verdict and judgment for the defendants. Plaintiff below brought the cause to this court.

This record shows a notice in the following form: ‘ State of Illinois, , Madison County. ' ‘ ' To Henky Ritter, Sir :—You are hereby notified that I demand possession of the house now occupied by you, situate on lot number twenty-three, in the town of Edwardsville, by the first day of September, A.D. 1854, your time expiring on the last day of August of said year, and unless possession be delivered as above demanded, you will be proceeded against, as by the statute in such…

This was a proceeding by motion in the Circuit Court of Scott County, Woodson, Judge, presiding, at April term, 1854, for judgment on an award. The substance of the submission is recited in the opinion, as also the substance of the award.

<p>This cause was heard and decided by Woodson, Judge, at the October term, 1854, of the Morgan Circuit Court.</p>

This cause was decided by Davis, Judge, at December term, 1853, of the Sangamon Circuit Court. The instrument sued on was in the usual form of a promissory note, but was under seal.

This was an action of assumpsit brought against the administratrix of the estate of John Oakes, deceased, upon an account filed in the probate office of Scott County, on the fifth day of January, 1854, and, by consent, taken to the circuit court of that county and tried at the October term of that court, before Woodson, Judge, and a jury. Yerdiet and judgment for defendant.

<p>ERROR TO HANCOCK.</p> <p>A note given for a sum of money bearing interest at a given rate per month, continues to bear that rate of interest, so long as the principal remains unpaid.</p> <p>A contract that is valid in the State where it is made, is to be enforced in another State, unless it is against good morals, or is repugnant to the policy or positive institutions of such State.</p>

<p>ERROR TO MORGAN.</p> <p>The fifth section of the limitation act of the fifth November, 1849, does not embrace bills of exchange, but relates exclusively to unwritten contracts; and that clause of the section which requires suits to be commenced within two years, is repealed.</p> <p>An action of debt may he maintained upon a hill of exchange, by the payee against the drawer or maker, although no consideration be expressed upon its face.</p>

This cause was heard before Minshall, Judge, at October term, 1851, of the Brown Oirquit Court. The plea in abatement set out the variance as stated in the opinion, to which a demurrer was interposed. The proceedings in the court below were commenced against the Brockmans and Joseph Miller. The judgment was rendered in a suit against Thomas S. Brockman, James Brockman and William O. F. Campbell, as defendants. The name of Campbell does not appear anywhere else in the record.

This cause was heard before Davis, Judge, at the November term, 1849, of the Moultrie Circuit Court.

<p>ERROR TO HANCOCK.</p> <p>Where two or more attachments are issued against a debtor, returnable to the samo term, the creditors will share in the proceeds of the property attached, in proportion to their respective demands.</p> <p>It is the duty of the court in such case to direct the clerk to make an estimate of the several amounts to be paid each creditor, and certify the same to the sheriff, who must make payment accordingly.</p> <p>This estimate should not be made until the sheriff receives the money.</p> <p>All creditors in attachments, which are returnable to the same term, are entitled to share pro rata in the proceeds, although they may not obtain judgments at the same term.</p> <p>If property attached is sold before all the attachments are disposed of, the court should order the sheriff to retain the proceeds until an order of distribution can be made.</p> <p>Where two attachments were returned to the same term, and a change of venue in one case, and a judgment at the return term in the other, and the property attached was sold under the first judgment, the sheriff might be directed to retain the proceeds derived from the sale of the attached property until the further order of the court; but the purchaser under the first sale, will hold the premises.</p> <p>The fact that no order was made for the distribution of the proceeds, will not operate to the prejudice of the purchaser, under the sale upon the attachment.</p> <p>If one of two attaching creditors under such circumstances, has received too large a share, the matter must be adjusted in a proceeding between them.</p>

This was a case certified from the Morgan Circuit Court, in which eight different suits of foreign attachment were involved. The several cases were submitted upon the same argument. The facts of the case appear in the opinion of the court.

This cause was heard before Woodson, Judge, at March term, 1854, of the Morgan Circuit Court.

<p>APPEAL PROM CASS.</p> <p>Where A, being a bona fiko purchaser, having an unrecorded conveyance of land, which had been levied upon by attachments ripened into judgments as the property of other parties, the conveyance of which in former grantees was fraudulent, and a bill was filed to set aside such conveyances in favor of the judgment creditors in attachment, it was held that A, never having reduced the land into possession, nor recorded his title prior to the filing of the bill to set aside the conveyances, his wife was not dowable of such land.'</p> <p>A widow is not dowable of land, unless her husband was, during marriage, seized of an estate of inheritance therein.</p> <p>The right to dower is liable to be defeated by every subsisting claim or incumbrance existing prior to the husband’s title, and which would have defeated his seizin.</p>

<p>This cause was heard and decided by Woodson, Judge, at the October term, 1854, of the Morgan Circuit Court.</p>

The application, for a confirmation of the report of the gaurdian in this case was heard and denied, by Walker, Judge, at October term, 1854, of the Schuyler Circuit Court.

<p>ERROR, TO MORGAN.</p> <p>It is not error for the circuit court, on an appeal from a justice by the plaintiff, whose judgment is affirmed, to order that lie shall pay the costs accrued in that court.</p>

<p>APPEAL PROM MORGAN.</p> <p>When a plea sets up an agreement consisting of several parts, which, taken together, constitute but one fact, one point of defense, the replication may deny collectively or in general terms, the averments of the plea, without being double.</p>

This was an action of assumpsit, heard before Underwood, Judge, and a jury, at August term, 1852, of the Madison Circuit Court. Plea, the general issue. Verdict and judgment for the defendant below.

<p>This cause was heard at the April term, 1854, of the Macoupin Circuit Court, before Woodson, Judge.</p>

<p>ERROR TO MORGAN.</p> <p>When the refusal to grant a new trial is assigned, as a reason for the reversal of a judgment, the bill of exceptions should state the whole of the testimony.</p>

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

This was a petition in the court below for a partition of certain real estate, filed by the appellees against Sarah Coffey and others.

<p>APPEAL PROM BROWN.</p> <p>Where the relation of parties is that of vendor and vendee, a proceeding for forcible detainer will not be sustained.</p>

<p>ERROR TO GREENE.</p> <p>In an action of replevin against two, each may interpose the plea of non detinet separately.</p> <p>In such an action, a plea of property in one of the defendants, is good upon a general demurrer.</p>

<p>error to brown.</p> <p>Under the school law of 1849, school directors are not hound to certify the schedule of a teacher, who did not present them the proper certificate of qualification before the commencement of the school.</p> <p>In an action by a teacher against the school directors under this law, the declaration must contain an averment, that such a certificate was presented prior to the commencement of the school, or the action will fail.</p> <p>The omission to make such an averment, will not be cured by the verdict</p> <p>Where a declaration fails to show any cause of action whatever, the judgment, if for plaintiff, may be arrested.</p> <p>If judgment is arrested, it is erroneous to enter a judgment for costs.</p>

<p>This cause was heard before Underwood, Judge, in the Madison Circuit Court, at October term, 1854.</p>

This cause was originally brought before a justice of the peace, and was taken by appeal to the Circuit Court. It was then heard before Woodson, Judge, at April term, 1854, of the Scott Circuit Court.

This action was commenced in the Brown Circuit Court upon a bond given by Raymond to Nye for $1,300.

This cause was commenced in the county court of Morgan county, by proceedings in behalf of appellees, to compel the appellant, Peter L. Frame, to make settlement of the estate of William Frame, deceased, of which he was the administrator. From the decision of the county court, the appellees took the case by appeal to the circuit court of Morgan county, where the case was heard at the October term, 1854, and the order and judgment of the county, court reversed with costs.

<p>This trial took place at October term, 1854, of the Menard Circuit Court; Woodson, Judge, presiding.</p>

Miller brought his action in assumpsit against Lumsden and Co., and Lewis and Adams, upon a note. Plea, the general issue.

The record shows that there are seven school districts in said township thirteen; that Thomas was duly employed as a teacher, from January 9th to March 7th, 1854, in school district No. 1; that before Saturday, the first day of April, 1854, his schedule as such teacher was returned and filed, and certified to by teacher and directors of the district, to the treasurer of the township. The directors certified there was due to the teacher, (the plaintiff,) $60.

<p>This cause was heard and decided by Davis, Judge, at the November term, 1853, of the Sangamon Circuit Court.</p>

This cause was hoard before Walker, Judge, at April term, 1854, of the Brown Circuit Court.

The scire facias in this case alleges that on, etc., before Thos.

<p>ERROR TO HANCOCK.</p> <p>The county court has jurisdiction in suits arising out of bonds of executors or administrators, if the amount claimed does not exceed $1000.</p> <p>The judgment need not be for the-full penalty of the bond, but for such damages as the party has sustained, by non-compliance with its condition. Such judgment will not bar another action on the bond, but suits may be brought until the entire penalty is recovered.</p> <p>If a judgment has been entered on such a bond in the circuit court, the proper remedy would be to suggest a breach, and have damages assessed in that court.</p> <p>If a judgment has been entered on the bond, it would merge the latter in the former, and no further action could be maintained upon it.</p>

This cause was commenced in Scott county, and was removed by change of venue to Pike county. It was there heard before Minshall, Judge, at the October term, 1851.

In October, 1851, Jonathan Wood, administrator de bonis non of Calvin R. Stone, deceased, petitioned the Circuit Court of Pike county, showing that Stone died in the year 1838, intestate; that administration upon his estate was first granted to one Peabody, who died before any settlement whatever was made of Stone’s estate; that in February, 1841, letters of administration de bonis non were granted to said Wood, who took upon himself the business of said administration; that…

This was a bill in chancery, filed by Nicholas King, against John 0. Hamilton, administrator -with the will annexed of William King, deceased; William Thomas, as trustee and guardian of five minors; John Peter, surviving executor of Joseph King, deceased, and surviving guardian of his two infants, and against Mary A. R. Wade and her husband.

The declaration in this case averred that plaintiff on the 18th day of June, 1853, up to the institution of this suit; to wit: on the 1st day of September, 1854, at etc., was possessed and the owner of certain stock, to wit: one hog, June 12th, 1853 ; one hog, January, 1854 ; April 17th, 1854, one red cow; May 22nd, 1854, two hogs, and May 27th, 1854, three hogs; then and there being on a certain unenclosed highway, in said county, whereon the track of the said Chicago and…

This was an action of assumpsit brought by Elston and Sleight, in the Cook Circuit Court against McCormick for the value of 100,000 brick, alleged by plaintiffs below, to have been sold to McCormick, and delivered to him in the year 1851.

This bill states, that prior to 12th of December, 1853, the said Edmunds professed to have invented an horological cradle, which was to be rocked by machinery, with a weight, running on one or more pulleys; the cradle constituting the pendulum, and which, being wound up, would rock itself until it run down, and so save the continual labor to mothers and nurses, of rocking the cradle ; and professed to have obtained a patent for the said invention, and had, at and before that…

The decree in this case was rendered by Davis, Judge, at September term, 1854, of the Logan Circuit Court. This case is in all respects like the preceding, except that Edmunds sold to Hildreth and one William Turner, the said patent for several States, for ten thousand dollars, and that Turner sold his interest to the two Myers for five thousand dollars. They were not parties to the agreement between Edmunds and Hildreth and Turner.

The declaration averred, in the first count, that the plaintiff, before and at the time of the committing of the grievance thereinafter mentioned, and still is, laivfully possessed of a certain messuage or dwelling-house, with the appurtenances, situate and being on, etc., in the town of Edwardsville, etc., in which, during all the time, etc., there were, and still of right ought to be, divers, to wit: two windows, through which the light and air, during all the time…

About the year 1835, Gideon Blackburn, proposed to various benevolent persons, the following plan for raising money for the purpose of founding and establishing a Theological Seminary in Illinois: That they should advance to him money, with which he should purchase government lands at one dollar and twenty-live cents per acre. That he should convey to them respectively of those lands, amounts which at two dollars per acre would be equal to the sums advanced.

George W. Green had been tried and convicted in the Cook Circuit Coiu’t, at November term, 1854, for the murder of his wife. A new trial was granted by Morris, Judge, who presided.

It appears from the record, that on the application of Norton, Walter & Company, the schooner Buena Vista was insured to them for $4,000 by the Lexington Fire, Life and Marine Insurance Company.

The judgment in this case was rendered by Wilkeson, Judge, at June term, 1855, of the Rock Island Circuit Court. The statement of the case will be found in the opinion of the court.

The decree in this case was ordered by J. M. Wilson, Judge, at February term, 1854, of the Cook County Common Pleas Court. The opinion of the Court furnishes a statement of the case.

This was an action of ejectment, the plaintiff claiming to be possessed as of his own demesne in fee simple, of a certain tract of land, known as the mill lot of Hubbard’s addition to the village of Algonquin, according to the plat of said addition, as recorded in the recorder’s office in McHenry county. The declaration is in the usual form. Plea, not guilty.

The opinion of the court gives a full statement of the case. The cause was tried by Davis, Judge, without the intervention of a jury, at the April term, 1855, of the Tazewell Circuit Court. Judgment was rendered for Neill, the appellee here, for $317.70 and costs.

<p>This cause was tried by Sheldon, Judge, at the March term, 1855, of the Jo Daviess Circuit Court.</p>

<p>The motion to dismiss the certiorajri was heard before Peters, Judge, at November term, 1853, of Peoria Circuit Court.</p>

This action was tried before Morris, Judge, and a jury, at November term, 1854, of the Cook Circuit Court. Verdict and judgment for the plaintiff for $350.

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

This was an action of debt, commenced by the defendants in error, against plaintiff in error, in the Iroquois Circuit Court. The declaration contains two counts, both on a sealed note for $645.97, given by plaintiff in error to one James Fletcher, and by Fletcher assigned to plaintiff below. The note bears date February 14th, 1854, and is payable on the 15th November, 1854. The defendant below pleaded two pleas.

This was a proceeding by a distress warrant, which is in these words: “ To Moses Hanks, of Cook County, Cresting: Whereas, John Lapointe, of Chicago, Cook County, is justly indebted to Alpheus Stewart, of New York, and John F. Temple, of Chicago, for the use of said Alpheus Stewart, in the sum of $309.00, three quarters’ rent of the premises known as a portion of lot 2, B. 70, School Section Addition to Chicago, being that portion of said Lot No. 2, fronting west on Canal…

This writ of error was sent to the La Salle County Court. The judgment complained of was rendered at the December term, 1854, of the La Salle County Court, H. G. Cotton, presiding. The opinion of the Court gives a statement of the case.

This cause was tried before J. M. Wilson, Judge, and a jury, at September term, 1854, of the Cook County Court of Common Pleas. Verdict and judgment for $1,200. The facts of the case, are set out in the opinion of the court.

<p>ERROR TO DE KALB.</p> <p>The return of the service of a summons, except where the statute otherwise provides, should show the time when, upon whom, and how, the service was made. A return, stating that a summons has been duly served on A. B., according to law, is not good.</p>

This was an action on the case, brought by the appellee, against the appellant, to recover for damages done to the steam tug Seneca, owned by the appellee, by reason of the unlawful obstruction of Chicago river, by the appellant, in placing across it a rope, and negligently suffering it to remain, upon which the tug ran afoul, causing injury to the tug, and detaining her from her business, in making repairs, etc. The cause was tried before J. M. Wilson, Judge, and a jury, at…

This cause was tried by the Court, J. M. Wilson, Judge, presiding, at February term, 1854, of the Common Pleas for Cook County. The Court found the issues for the plaintiffs, and the defendant guilty of withholding the premises described in the declaration, and rendered judgment that plaintiffs recover the same. Motion for a new trial by defendant, and overruled. The defendant brings the case to this court by appeal.

<p>APPEAL PROM GRUNDY.</p> <p>In a plea of abatement, which traverses the affidavit upon which an attachment issued, oyer of the affidavit need not be craved.</p> <p>The affidavit is the foundation of the suit, and is a part of the record.</p> <p>Where an affidavit for an attachment states that the defendant left the State, with an intention to remove his effects, to defraud creditors, a plea in abatement, which traverses the affidavit, is not double.</p> <p>The judgment for the defendant in a plea in abatement, whether it be on an issue of fact or law, is that the writ be quashed.</p> <p>After a demurrer to a plea in abatement has been overruled, the court cannot grant leave to reply to the plea.</p>

It was admitted by the parties, that the road mentioned in the pleas filed by defendants, is laid out upon the close mentioned in the declaration, but plaintiff denies that the road was legally laid out. The defendants admitted that they entered said close where they claim said road to be, and threw down a fence.

This case was presented to the Supreme Court, upon an agreed case, showing, that the defendant in error was clerk of the Circuit Court of De Kalb county; that during his clerkship he had furnished for the necessary use of the Circuit clerk’s office, fuel and lights, and that thirty-six dollars and forty-eight cents would be a just allowance therefor; that the county authorities denied that they were legally bound to pay this or any other sum. The case was submitted to J. G-.

This causo was heard before Wead, Judge, and a jury, at April term, 1855, of Henderson Circuit Court. The opinion of the court, gives a statement of the case.

This cause was tried before Leland, Judge, and a jury, at October term, 1854. Verdict and judgment for the plaintiffs in the Circuit Court. The case is stated in the opinion of the Court.

The decree in this case was entered by Sheldon, Judge, at May term, 1853, of the Jo Daviess Circuit Court. Held: entered the followingorder: “At a special session of the Probate Court, held in and for the county of Jo Daviess, at my office in Galena, this 5th day of July, A. D. 1843, present, Charles G. Thomas, probate justice of the peace, the following proceedings were had, to wit: Thomas Drum, guardian of Elizabeth and Juliana Bates, and…

<p>This was an action of ejectment, heard before Leland, Judge, at November term, 1853, of the La Salle Circuit Court.</p> <p>It was argued upon the record, that Samuel Lapsley died seized in fee of the premises sued for; that Mary Clinefelter is one of his heirs at law, and, had Lapsley died intestate, would have been entitled to one equal, undivided eighth part of said premises by descent, and that defendant below was in possession of the premises claiming title; that Lapsley made his will, which was duly proven and recorded; that Burton Ayres (the defendant) and William Waddingham, two of the persons named as executors in said will, declined to act, and that letters testamentary, on the 6th of September, 1839, were duly issued to John Faughander, the other executor named in said will, and he was duly qualified as such sole executor, and that Ayres and Waddingham were both alive at the time the letters to Faughander were issued, and at the time of the conveyance by the latter, and that they never qualified as executors; that in October, 1841, Faughander, as executor of Lapsley, conveyed to J ohn and Mary Swanson, and that Burton Ayres held by regular chain of conveyance from them. The substance of the will is stated in the opinion of the court. Proof was taken to show that there were not any papers or proofs on file, that Ayres and Waddingham had declined to accept the executor-ship, except the order of said court, as stated in the opinion. The cause was hoard by the court, without the intervention of a jury, and the issues were found for the defendant. The plaintiffs below bring the cause to this court. This cause was heard at June term, 1854, and decided at June term, 1855.</p>

This was an action of replevin commenced by Williams against Charlesworth, in the La Salle Circuit Court. The defendant pleaded non detinet, and property in himself. Upon these pleas, issue was joined. The cause was tried before Leland, Judge, and a jury, at November term, 1853.. Verdict and judgment for plaintiff.

This action was commenced before a justice of the peace, and was taken by appeal to the Circuit Court of Peoria county. On the trial of the cause before Peters, Judge, at March term, 1855, the deposition of a witness was read, which proved a delivery of the articles claimed in the account, for which the action was brought. The deposition stated that the articles were delivered to Charles Puschel and August Puschel, at their shop.

Goodrich, as surviving partner of Giles Spring, deceased, sued Frink and Walker, in assumpsit, for services performed for the latter parties, as their attorneys. Walker pleaded the general issue, the statute of limitations, and a plea of set-off. Upon these pleas, issues were made up, and a trial was had before J. M. Wilson, Judge, and a jury, at February term, 1855, of the Common Pleas Court.

The decree in this case in the Circuit Court of Peoria county, was rendered by Peters, Judge, at January term, 1854. The facts of the case are stated in the opinion of the court.

Jesse N. Smith presented his petition to this court, stating that he was confined in the jail of Cook county; that he was arrested by the sheriff of said county, by virtue of a capias ad respondendum issued out of the Circuit Court of said county, and committed for want of bail; that the next day after his arrest, he demanded to be taken before the county judge to be discharged therefrom, under the provisions of the fifty-second chapter of the Revised Statutes, entitled “…

This was an application by Salisbury to be discharged from an arrest and bail. Suit was commenced against Salisbury and nine others, by the Bank of Auburn.

This was an action of debt, brought before a justice of the peace, under an act to amend chapter ninety-three of the Revised Statutes, entitled “ Roads,” approved June 22, 1852, (Laws of 1852, p. 176,) for the supposed obstruction of a road loading from Washington to Tremont, which road was claimed to have been located under the 28th section, and other applicable provisions of the act of March 2, 1839, entitled “ An act to locate and establish, and alter, change and…

<p>The decree in this case was rendered by Peters, Judge, at a special term of the Peoria Circuit Court, in March, 1855.</p>

This cause was heard before Morris, Judge, without a jury, at May term, 1854. The case is stated in the opinion of the court.

This case was on a scire facias, on a recognizance executed by Seymour Plummer, as principal, and the other two as sureties, taken by two justices, to release the body of Seymour Plummer from imprisonment in the county jail. It was conditioned for his appearance before the Circuit Court of said county, to answer to an indictment to be preferred against him for the crime of larceny. The defendants not appearing, there was a forfeiture of the recognizance.

This was a suit brought by Chubbuck against Wheeler, to recover a penalty for suffering hogs to run at large in Livingston county, contrary to the provisions of an act entitled “ An act to prevent sheep and swine from running at large in Henry, Will and Livingston counties,” approved January 27,1853. There was evidence tending to show, that in the month of March, A. D. 1853, and at other times, defendant permitted his hogs to run at large in Livingston county.

At the February term, 1855, of the Recorder’s Court of the the city of Chicago, the plaintiff in error was indicted, tried, and convicted of the crime of larceny, and sentenced to four years’ imprisonment in the penitentiary.

Declaration in trespass, quare clausum fregit, for breaking and entering a certain close, in the town of Hanover, in said county of Cook, situate on section 31, and breaking down, prostrating and destroying 300 rods of fencing; and breaking the boards, rails and postsand destroying the lumber whereof the same was made; and trampling down the herbage, etc. Damages, $1,000. Pleas. 1. General issue. 2.

The declaration avers that said defendant, with one R. C. Baker, who is not sued in this action, made his certain promissory note, etc. A copy of the note signed by Baker and Strain was filed with the declaration. A demurrer was filed to this declaration, and was sustained by the Circuit Court of McLean county, Davis, Judge, presiding, at September term, 1854. The plaintiff below sued out this writ, and assigns for error, the sustaining of the demurrer to the declaration.

The questions presented in these cases are precisely similar. The facts and points raised are fully stated in the opinion of the court. The cases were heard before J. M. Wilson, Judge, at February term, 1855, of the Common Pleas Court.

At the April special term, 1848, of the Circuit Court of Jo Daviess county, complainant filed his bill for relief, averring that on the 11th of January, 1837, complainant executed a mortgage to Hezekiah H. Gear, on lot No. 36, on west side of Main street, in Galena, to secure payment of the sum mentioned in mortgage. Afterwards Gear commenced an action on the mortgage, and decree of foreclosure for $336.40 was rendered at the October term, 1840.

This cause was heard before Leland, Judge, at March term, 1855, of the Kendall Circuit Court. The statement of the case will be found in the opinion of the court.

The proceedings in this case were had before Leland, Judge, at May term, 1854, of the La Salle Circuit Court. The May term commenced on the 8th day of the month. The declaration was filed on the 18th of the same' month ; a rule was taken to plead, and no plea being filed, judgment was rendered against Hoes.

The decree iu this case was rendered by Sheldon, Judge, at November term, 1854, of the Stephenson Circuit Court. The facts of the case are set out in the opinion of the court.

The decision in this case was made by Morris, Judge, at May term, 1854, of the Cook Circuit Court. The principal question presented by the record in this case is, whether the agreed case therein set out, contained sufficient facts to enable the court below to determine the issue between the parties.

This cause was decided by Sheldon, Judge, and a jury, at March term, 1853, of the Jo Daviess Circuit Court. Sec opinion for the statement of the case.

This was a suit for taxes. The plaintiff in error appealed, and objected to judgment upon the following lands and lots: West half of north-west quarter section 25, town. 33, range 4 east of third principal meridian; west half of north-east quarter section 25, town. 33, range 3 east of third principal meridian ; north-east quarter of north-west quarter section 25, town. 33, range 3 cast of third principal meridian; lot 1, block 37, State’s addition to Ottawa; lot 8, block 80,…

<p>This case was tried before H. G. Cotton, County Judge of LaSalle, and a jury, at December term, 1854, of that Court.</p>

The decree in this case was entered at December term, 1854, of the La Salle Circuit Court, Leland, Judge, presiding. The facts of the case are stated in the opinion.

This cause was heard before J. M. Wilson, Judge, and a jury, at February term, 1855, of the Common Pleas Court. The case is stated in the opinion of the court.

The sixth instruction asked for by defendant, which was refused, and which is referred to in the opinion of the court, is as follows: The words, “ you came here to defend these two old worn out whoring bitches, who have shaken their shirk-tails at every man in Stephenson county, and I can prove it,” are not slanderous. The other facts are stated in the opinion of the court.

Price brought Ms action against Bissel & Co., to recover for advañces made by Mm on certain merchandise received of J. D. Harmon & Co., who were forwarding merchants at Peru, and for freight for transporting the same from Peru to Peoria. To this action the defendants interposed several pleas.

This was a proceeding for forcible entry and detainer. The plaintiff below leased the premises in controversy for one year to one Penfield, who immediately took possession of the same under the lease, and continued in the actual possession for about sis months, when he abandoned the premises, leaving them unoccupied. On the same day that Penfield left, and a few hours after he had gone, the defendant below moved his family into the house situated on said premises.

This was an application by the defendant in error, at the December term of said La Salle County Court, 1854, for a judgment against lot 4, in block 21, in the town of Ottawa, for the non-payment of the corporation tax assessed on the leasehold interest of plaintiffs in error, in mills and machinery erected on said lot.

O’Conner sued Goff in trover before a justice of the peace, and recovered a judgment for fifty dollars. Goff appealed to the Circuit Court.

This is an action of ejectment brought by Blanchard against Woodward, to recover the possession of a lot of land of which Blanchard claimed to be seized in fee, described as lot number two hundred and eighty, on the town plat of the town of Henry, in Marshall county, Illinois, included in section sixteen, township thirteen north, of range two east of the fourth principal meridian. The declaration is in the usual form. Plea, the general issue.

On the 5th of March, 1853, plaintiffs in error, complainants below, filed a bill in chancery, in the words and figures following, to wit: “ Your complainants, Alfred Cooper, Benton F. Henderson, and Franklin Cooper, partners, under the name and style of Cooper, Henderson & Co., would represent, that George W. Sandford and Adam Booth, partners, trading under the name and style of G. W. Sandford & Co., on the 28th day of March, 1851, by their promissory note bearing that date,…

On the 23rd of December, 1852, Edward D. Kemp filed a bill against John G. Reed, for a specific performance of the following contract: “Know all Men by these Presents, That I, J. G. Reed, for and in consideration of the sum of sixty-five dollars, to me in hand paid by E. D. Kemp, do bind myself, my heirs and administrators by these presents, unto Edward D. Kemp, his heirs or assigns, or administrators, in the penal sum of five hundred dollars, to make and deliver unto said…

This was an action commenced before a justice of the peace and taken by appeal to the Circuit Court of LaSalle county, where it was tried by Leland, Judge, and a jury, at May term, 1854. The note sued on, was made payable to the order of Nathaniel Brown, and was indorsed on the back, “ Nathaniel Brown.” When offered in evidence to the jury, on exception taken, it was excluded by the court, on account of the indorsement.

This was a bill in chancery, filed March 8,1853, in the La Salle Circuit Court, by the appellee, against the appellants and Asenath Coffing, the wife of Churchill Coffing, and alleges in substance: that, in the year 1847, the appellee, I. D. Harmon, and Churchill Coffing, formed a copartnership for carrying on mercantile and other business, at Peru, 111., under the name of I. D. Harmon & Co., which continued until dissolved as after mentioned.

This was an action of debt brought by Henry Nolte, the appellee, against William W. Low and John P. Chapin, the appellants. The declaration consists of four counts upon an award of arbitrators chosen by the parties. The first count declares upon the award generally, by referring to the contract of submission and award filed and referred to. The second count declares upon the award, and sets out in substance the agreement of submission and the award.

<p>APPEAL PROM BUREAU.</p> <p>Hewed timber, fence posts, etc., unattached to the soil, are not fixtures or appurtenances to the land, and do not pass by deed.</p> <p>Oral testimony is inadmissible to add to, vary or change the terms of a deed, but may be admitted to show the condition of the property, with a view to arrive at the true intent of the parties, in the terms used by them.</p>

On the 27th March, 1850, Pleyl, city marshal of Peoria, made a complaint against Beesman, before the mayor of the city of Peoria, for keeping open a grocery on Sunday, contrary to an ordinance of said city. The cause was tried before the mayor, and defendant fined $25. He appealed to the Circuit Court. Nov. 12,1851, Kellogg, Judge, presiding, the cause was tried in the Circuit Court, and judgment rendered in that court for the same sum of $25, and costs.

This was an action of debt, brought jointly against Penn and Nichols, upon a lease under seal, between Turney and Penn; Nichols having signed the agreement to become surety for Penn, which is set out in the opinion of the court. To this declarar tion there was a demurrer, and a joinder in demurrer. The demurrer was sustained by the court, Davis, Judge, at March term, 1855, of the McLean Circuit Court. The plaintiff below prosecutes this writ of error.

<p>This was an action of covenant brought by Aglett H. Buckner, trustee of Ann Strother, Joseph A. Eddy and Jabish P. Eddy, against Lorenzo D. Hamilton.</p> <p>Hamilton held certain articles of agreement for the conveyance of real estate by Wm. E. Hasson, which he assigned to the plaintiffs by the following indorsement:</p> <p>“Know all Men by these Pbesents, That I, Lorenzo D. Hamilton, for and in consideration of two hundred dollars, have sold and assigned, and do hereby sell and assign to Aglett H. Buckner, trustee of Ann Strothers, wife of R. M. Strothers, one-half, and Joseph A. and Jabish P. Eddy, the other half of my interest in the within bond, and the land there described, and covenant and agree to and with said Buckner, said trustee, and J. A. and J. P. Eddy, that I have not in anywise or manner done or suffered any act or thing that shall or can, in any event, lessen or destroy my right under said bond since its execution.</p> <p>Witness my hand and seal this 12th May, 1852.</p> <p>L. I). HAMILTON. [ l. s. ]</p> <p>Upon this covenant the action is brought. In the second count, the article and this covenant are set out in haec verba, and the breach assigned is, that after the execution of the article, and before the covenant, Hamilton had released Hassen from his liability on the article.</p> <p>The defendant demurred to the declaration, and each count thereof, and the court sustained the demurrer on the ground that an action would not lie on this covenant in the joint names of Buckner and the Eddys, but that separate actions should have been brought for the half damages going to Buckner as trustee, and the half damages going to the Eddys.</p> <p>The plaintiff, brings the case here.</p> <p>The cause was heard before Davis, Judge, at March term, 1855, of the Tazewell Circuit Court.</p>

This was a proceeding commenced before a justice of the peace, and taken by appeal to the Common Pleas of Cook county. The cause was heard by J. M. Wilson, Judge, without the intervention of a jury, at November term, 1858, who refused to allow the set-off claimed by appellant lim^asl^fiei*|^dgment in favor of plaintiffs in the court sufficiently stated in the opinion of the cou®L ** r

<p>APPEAL FROM KANE.</p> <p>Where a party has contracted for land, and made payments upon it, he may recover hack what he has paid, with interest, if his vendor has put it out of his power to perform his contract, by having sold the same land to another.</p>

This was an action on a promissory note, tried before Davis, Judge, without the intervention of a jury, at April term, 1855, of the Tazewell Circuit Court. Judgment was rendered for the plaintiff, and the defendant took this appeal. The only question raised upon the record, is one of variance*.

This was an action of assumpsit, brought by appellee against appellant in the County Court of La Salle County, to the March term, A. D. 1855. The declaration contained one special count and the common counts.

This was an action of assumpsit, brought by appellee against the appellant, to recover the value of a quantity of rags, sent from Joliet to Chicago, which were not delivered at Chicago. Plea, the general issue.

Farrell was indicted, tried and convicted of larceny, before R. S. Wilson, at June term, 1855, of the Recorder’s Court for the city of Chicago. The evidence showed that one Hennis, about midnight, gave Farrell, who was a hack driver, a five dollar bill to be changed, in order that Hennis might pay Farrell twenty-five cents, which was his charge for carrying Hennis in his hack from the railroad depot to an hotel. Farrell did not return with the bill or the change for it.

<p>APPEAL FROM LA SALLE.</p> <p>The finding and certificate required by the sixth section of chapter sixty of the Revised Statutes, entitled, “Landlord and Tenant,” do constitute a final judg ment, from, which an appeal may be taken to the Supreme Court.</p> <p>An affidavit for a continuance, which avers that witnesses have been duh' subpoenaed to attend the court at which the trial is to he had, shows sufficient diligence.</p> <p>The court may ascertain whether a witness is present, and if he is, may overrule ’ an application for a continuance.</p> <p>A tenant, upon a proceeding by distress, may show that he was evicted from a part of the premises, or that he was disturbed in his possession.</p> <p>The law will imply in a lease, covenants against paramount title, and against such acts of the landlord as destroy the beneficial enjoyment of the premises.</p>

This is an action brought upon certain promissory' notes, signed by the defendants, and payable to the order of Vance and Smith. It is admitted of record, that the said notes were assigned to the (nominal) plaintiff, Jernegan, (who was attorney of Vance and Smith,) after said notes were due. The defense is, that the defendants became parties to these notes, for the accommodation of the real plaintiffs, Vance and Smith, and received from them no consideration therefor.

This was an action of covenant. The declaration assigned breaches of the following covenants entered into by appellants: “ Said railroad company shall erect, and perpetually maintain, on each side of said railroad, across the plaintiff’s land, a good and substantial fence, and suffer the owner of said tract of land, his heirs and assigns, to join the said fence without charge; said company shall construct, and maintain perpetually, across said road a secure and convenient…

This was a proceeding against the appellants, for a contempt for a breach of an injunction. The record in this case shows, that on the twenty-third day of June, A. D. 1853, one Daniel O’Keefe filed in the Circuit Court of Peoria county, a bill in chancery, for an injunction against the said George A. Crook, Hart P. Ancker, and one William. Senior.

The complainant by his bill alleges, that, on May 2nd, 1826, the county of Peoria was possessed of north-east fractional quarter section nine, township eight north, range eight east of fourth principal meridian, on which the seat of justice for that county had been located, and then was located. County having acquired a pre-emption right to the land under the act of 26th May, 1824.

This was an application by Rees Morgan for a mandamus, showing that certain persons were duly elected and qualified commissioners of highways for the town of Dayton, in La Salle county, and that these persons, fearing they might be made liable, refused to open and work certain public highways in said township.

The appellant claims title under an act of the legislature of the State of Illinois, which came in force December 6th, 1836, entitled 11 An act authorizing the sale of the real estate of D. L. W. Jones, deceased, and for other purposes.” The act authorized the administrator of Jones to sell, at public or private sale, such of the real estate of the deceased as was situated within this State and the territory of Michigan, and apply the proceeds to the liquidation of the debts…

<p>The decree in this case was rendered by Wilkinson, Judge, at October term, 1854, of the Carroll Circuit Court.</p>

On the 29th day of July, A. D. 1852, John Wright filed, in the Stephenson county Circuit Court, his bill of complaint against Thomas McGhee, stating, that on the 5th day of February, Wright had made a settlement on the west half of the south-east quarter of section twelve, township twenty-seven, range seven east, in Stephenson county.

This was an action on the case for personal injuries. Cause tried at May term, 1854, of Kane Circuit Court, before Hon. B. S. Mobbis and a jury. Verdict for plaintiff for $2,500. The testimony shows, that in the month of August, Fay, with two others, got on plaintiffs’ cars at Elgin to ride to Clinton, a distance of some three miles. The train consisted of the locomotive and tender, then a baggage car, next a second class car, and, behind all, a first class car.