Volume 24 — Illinois Reports

This is a bill in chancery, filed by Hiram Sanford in the Edgar Circuit Court, against William Snyder, Jacob Gregg and others, on which an injunction was obtained, restraining the defendant, Wm.

This was an action brought by the President and Trustees of Carthage against Hamilton, for a penalty of twenty dollars, for a violation of an ordinance of said town prohibiting the sale of spirituous liquors, before a justice of the peace of the county of Hancock, and appealed to the Circuit Court. The parties waived a jury, and submitted to the court, Sibley, Judge.

This is an appeal from the Alton City Court, from the judgment of said court, upon a petition filed by the appellants, to perfect a mechanics’ lien upon a lot in Alton, upon which the appellants have built a dwelling-house and other improvements. The jury found a verdict for the defendant. The petitioners moved for a new trial, which was denied, Billings, Judge, presiding ; and judgment was rendered against the appellants.

<p>This was an indictment' tried in the Madison Circuit Court, before Snyder, Judge. The facts are sufficiently stated in the opinion.</p>

This was an action of assumpsit, by plaintiff in error against defendant in error. There were originally two counts in the declaration. On trial, plaintiff entered a nolle prosequi to first count.

The cause was heard before I. G. Wilson, Judge, and a jury, at September term, 1859, of the Boone county Circuit Court, on a change of venue from Winnebago county.

This cause was submitted upon the following agreed case: At August term of the Circuit Court of Mercer county, an indictment was presented by the grand jury, and filed, against Wallace Hatch and others, for burglary, committed in said Mercer county; on which the defendants therein were, at said term, arraigned, and severally pleaded not guilty, and at the same term entered their motion for a change of venue; which motion was allowed, and the venue changed to Rock Island…

The defendant in error moves to continue this cause, after joinder in error, upon his affidavit and that of one of his attorneys, that the counsel who had signed the joinder, had not been retained in this court. It appeared, by counter affidavits, that the attorney who signed the joinder in error had assisted on the trial of the cause in the court below.

The record in this case shows that the defendant in error filed a bill of injunction in the court below, (which was allowed,) to restrain the plaintiffs in error, who were commissioners of highways, from opening the public road in controversy; also for relief; to February term, 1858, at which term the commissioners filed a demurrer, and moved to dissolve the injunction for want of equity in the bill.

This was an action of replevin commenced in the Lee Circuit Court by the defendant in error, against Ozias Wheeler, sheriff of Lee county, and was tried at the June term, A. D. 1858, of said court, before Eustace, Judge, and a jury, and a verdict found for defendant in error. A .motion for a new trial was made, and overruled.

This was an action of replevin, commenced in the Lee Circuit Court, by the defendant in error, against Ozias Wheeler, sheriff of Lee county, and was tried at the June term, A. D. 1858, of said court, before Eustace, Judge, and a jury, and a verdict found for defendant in error, and damages assessed at ten dollars. A motion for a new trial was made and overruled, and a bill of exceptions was signed and sealed by the judge, and made part of the record.

This was a suit commenced by Palmer against the company, in trover, for one patent self-raking reaper, value $200, and one other reaping machine, value $175. Plea: general issue. Trial, and verdict for plaintiff for $150. ■ On the trial, plaintiff called Elijah Austin, who testified that he was acting as agent for the plaintiff in selling reapers, in 1857. Plaintiff shipped reapers to witness at Sublette, sometime before the commencement of this suit.

This was an action commenced by Tarbell, against individuals, members of the Crystal Lake Ice Company; averring that he had been employed by such company as a superintendent, at a salary of twelve hundred dollars per annum, and that after a service of some months, the company refused or failed to furnish him employment as he requested, and he brought his action for a balance of salary due him.

<p>This was an action of trespass for taking and carrying certain chattels.</p>

On the 7th of August, A. D. 1859, appellee sued out of the office of the clerk of Rock Island Circuit Court his writ of summons in assumpsit against the appellants, returnable to the September term, 1859, of said court; damages, one thousand dollars. The appellee filed his declaration, containing two counts.

This bill alleges, that on the tenth day of January, 1860, and Tong before, Clark street, in the city of Chicago, was a street :running north and south, and crossing the Chicago river by a 'bridge. That a large number of teams, carts, wagons, etc., were passing along that street for business purposes. That the .streets near the river, crossing Clark street east and west, were miso greatly used by teams, etc., for business purposes.

The defendants in error filed their bill against the plaintiffs in error, to redeem the undivided half of the south half of section three and of section ten, town 39 north, range 12 east of the third principal meridian, from a mortgage executed by Jeremiah Tooley, in 1838, to Simon Z. Haven, for $290, and which was assigned by said Haven to said Ogden, on the 22nd of September, 1841.

This was an indictment for obtaining property under false pretenses.

The defendant in error filed his bill in Warren Circuit Court; against Jane Searles, the widow, and Henry M. Searles, and others, the heirs of Robert Searles, deceased, Samuel Tompkins-, the unknown heirs of Thomas Tompkins, the unknown heirs of William Odell, Philip Van Courtland, John H. Johnson, Stephen Bronson, Ezekiel Minor, P. D. Wilson, Darlington J. Stewart, David Thomifis, James Lombard, George E. Harding, Hezekiah M. Wead, C. A. Worden, Albert Worden, John J.…

This was an action of debt commenced by plaintiff against defendant, in Stark county, and moved, by change of venue, to Peoria county. Held: after the vote on the question of subscription. That it was made by the supervisors alone; it should have been made by the County Court, if at all. That it was made at a special meeting, and it does not appear that previous notice was given. That it does not contain the condition of location required by the order for the election.

Tuts was a judgment confessed in vacation by virtue of a power of attorney. The declaration, filed June 14th, 1859, was entitled in vacation, after the February term of the DeKalb county Circuit Court, A. D. 1859. Declaration in usual form upon an assigned note.

This was an action of assumpsit, in the Henry Circuit Court, counting upon a promissory note, which note is as follows: Kewanee, Illinois, May 31sf, 1855. Eor value received, I promise to pay to J. & T. Lyle, or hearer, six hundred dollars, one year from date. (Signed) JAMES HUTCHINS. GEORGE A. MORSE.1 The declaration is in the' usual form, counting specially on said note, and containing the common counts. Service was had on defendant Morse, only.

Tyng & Brotherson brought two suits against Cole, before a justice of the peace—one for $177.98, in their own right, for wheat sold and delivered : and one for $534.93, to the use of their assignees, for storage on corn, on which last Cole was credited with $244, for sacks sold to Tyng & Brotherson. On appeal to the County Court, by Cole, the two suits were consolidated and tried together.

This was an action of assumpsit, brought by the plaintiff in error against the defendant in error, in the Cook County Court of Common Pleas, (now Superior Court of Chicago,) to recover of the defendant the sum of fifteen thousand five hundred and forty-five dollars, which the plaintiff claims that the city owes him for damages which commissioners, appointed by the city of Chicago to estimate the benefits and damages to the owners of ' property by the opening and extending of…

This was an action brought by Oliver Fuller, Charles Perkins, and Edward Finch, against Erasmus Woodworth and Alvin Woodworth, before a justice of the peace. The defendants were sued as the guarantors of a note, signed by one Philip Smith. There was a judgment for plaintiffs before the justice, and the defendant, Alvin Woodworth, who alone was served, took an appeal to the Court of Common Pleas of the city of Aurora, Kane county.

This was a petition for a mechanics’ lien, filed by Horace G. Anderson and John C. Proctor, against William Brady, Hezekiah M. Wead, and Robert A. Smith.

This suit was originally commenced before a justice of the peace, and taken by appeal to the Circuit. Court of LaSalle county. On the trial of the cause in the Circuit Court, Hollister, Judge, presiding, the plaintiff below introduced in evidence a note, in the words as follows : $95.00. Ottawa, Dec. 2, 1858. Nine months after date, I promise to pay to the order of Augustus Leckelt, ninety-five dollars, value received, with ten per cent, interest per annum. E. H. RAYMOND.

This cause was brought by the plaintiffs in error against the defendant in error, before a justice of the peace of Bureau county, in which court judgment was rendered for the defendant, and the plaintiffs appealed to the Circuit Court of said county. The suit was brought against the defendant as special bail of one Elias Dakin, entered into by the defendant on a capias issued in favor of the plaintiffs and against the said Dakin.

The declaration in this case counts upon a note for $112.50, and on an account stated, as administratrix and administrator. Defendant pleaded the general issue, with notice that at the time of making said note, on the 15th April, 1857, he purchased of plaintiffs, and they sold a certain side-slat, extension-top, one-horse buggy, for the sum of $225, half of which was paid down, and the note sued on was given for the balance.

<p>ERROR TO LA SALLE.</p> <p>This case is in all respects similar to that published ante, page 38.</p>

On the 19th day of April, A. D. 1855, there was filed with the clerk of the Cook county Circuit Court, a paper purporting to be a transcript of certain proceedings in the County Court of said county, on the application of Nelson 0.

This was an action of replevin, brought by appellant against appellees. Declaration contains only one count. Plaintiff alleges that the defendants, on or about the 3rd day of May, A. D. 1858, took certain liquors and office furniture therein described, the property of the plaintiff, and of the value of two thousand dollars, and unjustly detained the same, etc. Pleas: 1st, Hon cepit. 2nd.

The declaration in this case is, in substance, as follows: John D. Oaton, plaintiff in this suit, by his attorneys, etc., complains, etc., of a plea of covenant broken, for that whereas heretofore, to wit, on the 20th day of October, A. D. 1857, at Ottawa, etc., certain articles of agreement were then and there made and entered into by and between the said plaintiff, of the one part, and the said defendant, of the other part, under their hands and seals, which said articles…

<p>APPEAL PROM LA SALLE.</p>

This bill charges that Asher Rossiter and wife made a deed of trust to Shumway, on 12th March, 1857, to secure certain indebtedness and the performance of certain covenants, on lands in School Section Addition to Chicago. The indebtedness was on eight notes, dated 12th March, 1857, each for $2,000, due in twelve months, with interest, and certain taxes and liens were also secured by same deed. It was duly recorded and is made exhibit.

This suit was brought by Waldham, against Allison, as guarantor of two promissory notes, executed by John Ramsay, to Joseph P. Allison and Alexander Allison, dated March 31, 1857 ; one at three months, for $84; the other at six months, for $100. The jury found for the plaintiff below, the amount of the last note and interest, viz., $116.25. Allison appealed.

This was an action of assumpsit, by Walker and Kellogg, against H. Myers & Co., for $>20,000, to March term, 1858. The declaration contained the common counts for goods, etc., delivered ; goods, etc., sold; work and materials; money loaned ; money paid; money received; account stated; interest; and corn, wheat and grain.

This was an action of assumpsit, commenced by appellees, in the Cook Circuit Court, against appellants, to recover an amount due them on a contract for the sale of an engine and boiler. It appeared on the trial, Manniere, Judge, presiding, that in October, 1857, one George A. Shufeldt, Jr., owed the plaintiffs, Magill & Pickering, about $1,800, and that the plaintiffs owed the defendants about $2,100, secured by two notes for the amount.

This cause was originally commenced before a justice of the peace, being an action of a trespass to real estate, and was taken by appeal to the County Court of Peoria county. The jury found a verdict for the plaintiff below for nineteen dollars, which verdict is in the words and figures, to wit: John Connelly, \ vs. f JohiTa.

This suit was commenced before a justice of the peace, and appealed to the Circuit Court. Copy of summons issued by the justice: STATE OF ILLINOIS, I The People of the State of Illinois, to any Constable bureau county.

The facts of this case are stated in the opinion of the court, The decree in this case was pronounced by I. G. Wilson, Judge.

This action was assumpsit, brought by the appellee against the appellant, to the April term, 1859, of the Cook County Court of Common Pleas. The placita in the record purports to be in the Superior Court of Chicago, before three judges.

The bill of complaint of John J. McGilvra, against Wilkinson & Granger, states that he, and Lorenzo Dow Wilkinson, became partners together as attorneys at law in Chicago, under the name of Wilkinson & McGilvra, on a verbal agreement that each should receive one-half of the profits of such business. That the copartnership continued from September, 1856, to February, 1858. Their aggregate net receipts were $4,237.94—McGilvra’s receipts being $2,127.02; Wilkinson’s, $2,110.92.

This was an action of ejectment, commenced at the April! term of Warren Circuit Court, A. D. 1854, by defendants in error against plaintiffs in error, to recover the north-west quarter of section fourteen, township eight north, in range one west, and declaration filed in usual form, to which the defendants below filed a plea of general issue.

Johnson commenced suit against Mason, executor of Smith, in the Marshall Circuit Court. The declaration states that Smith, in his lifetime, executed and delivered to Johnson his note, which is as follows: $2,893.62. Lacón, April 10th, 1840.

This is an appeal from an order of the Ogle Circuit Court, sustaining a demurrer to a plea of the defendants below. The case in the Circuit Court was an action of assumpsit.

This was an action on the case for a malicious prosecution, commenced by appellee against appellant, at the April term, A. D. 1856, of the Iroquois Circuit Court. Plea, not guilty.

This was an action in assumpsit. Declaration filed December 4th. Counts: 1st. On a promissory note of plaintiff in error, (defendant below,) dated July 28, 1858, made at New York, promising “to pay Geo. Bliss & Co.,” (defendants in error,) “plaintiffs, the sum of two hundred and twenty-two and 47-100 dollars, with the current rate of exchange on New York, for value received, in ninety days after the date thereof,” alleging non-payment. 2nd.

The declaration in this case is upon a note of Dunlap; Wright & Co., with common counts added. Hurd pleaded the general issue; and that he did not make the note as partner, etc., or otherwise, or authorize the same to be done ; and usury. There was a default against Dunlap, Colburn and Wright; trial as to Hurd; and assessment against the other defendants. The cause was tried by a jury, before Manniere, Judge, and resulted in a judgment against all the defendants, for $924.52.

This was an action on the case for a malicious prosecution, brought by William Smith against Alex. Whitehall, in the Iroquois Circuit Court.

This was a suit brought upon a promissory note, before a justice of the peace, before whom default was made, and judgment and appeal to the Circuit Court. . The transcript of the justice of the peace is in these words: “Nathan Tucker & 1 Henry Mansfield ( ShitiTerye. ) In assumpsit. Note -filed for $226.40.

This was an action of assumpsit, brought by Rupert and Haines against Brower, and tried before Harriott, Judge, at the February term, 1860, of the Tazewell Circuit Court. The declaration contained four special counts.

This was an information in the nature of a quo warranto, filed in the Marshall Circuit Court, May term, 1859, by the state’s attorney, on the relation of Martin Ballou, against Mark Bangs.

This was a suit commenced by an affidavit, for an attachment for $1,778.68, on two promissory notes made by plaintiffs in error, under the firm of A. Martin & Co., one dated 16th September, 1858, payable to defendant in error, for $1,248, two months after date, with interest; the other, made by plaintiffs in error, under the same style, dated 29th September, 1858, payable to Greenbaum Brothers, or order, twelve days after date, for $500, with interest at ten per cent.; last…

This is an action brought against the appellant, as indorser of two promissory notes, payable to the order of the maker, by the holders, who derive their title by delivery merely, and without the indorsement of the party from whom they were received.

This was a proceeding, commenced before a justice of the peace of Stephenson county, upon the following complaint: The complaint of David Seem, of the city of Freeport, in said county, who being duly sworn, upon his oath gives William Herbert, Esq., one of the justices of the peace of said county, to understand and be informed, that on the twenty-sixth day or October, A. D. 1858, in the county aforesaid, he did demise and lease to Ingram McLees, of the place aforesaid, all…

This was an action - commenced by the sheriff of Peoria county, for the purpose of recovering for oEcial services, rendered the county. The declaration was in debt, and there was a plea of the general issue. The case was submitted to Powell, Judge, for decision, without a jury, on an agreed state of facts.

This was an action brought by appellees against appellants, on a bond. Damages claimed in the declaration, five hundred dollars. Trial was had before John M. Wilson, Judge, and a jury, and verdict for the plaintiffs for $1,131.09. The defendants entered motions in arrest of judgment, and for a new trial.

This is a case of a mechanics’ lien. There was a demurrer to the bill, because it did not allege that any specific time was agreed upon, when the contract was made, within which the work provided for therein was to be' completed. The demurrer was sustained in the court below, and the plaintiff in that court brings the case to this.

This is an action of debt, which was brought to the March term, 1856, of the Peoria Circuit Court, on the following notes, viz.: Peoria County, Nov. 18, 1841. Two years from date, I (or we) promise to pay to Noyes D. Bartholomew or order, for the use and benefit of Betsey Bartholomew, the sum of one hundred and fifty dollars, with six per cent, interest from date, for value received. A. C. BARTHOLOMEW. Peoria County, Nov. 18, 1841.

<p>ERROR TO THE SUPERIOR COURT OE CHICAGO.</p> <p>The failure of one of the parties to a contract to fulfill his agreement, authorizes the other party to rescind the contract.</p> <p>But such failure does not of itself destroy the contract. The other party must give notice, within a reasonable time, of his intention to repudiate it.</p>

This suit was brought upon a note, of which the following is a copy: Aurora, August 20th, 1858. One year after date, for value received, I promise to pay Thomas NewlaA, or order, the sum of one hundred and thirty-eight dollars, at ten per cent, per annum. J. H. OROUTT. The’first count alleges, that defendant was possessed of said note, and exchanged it for a gray mare with defendant, and guaranteed the payment of said note upon the back thereof.

This bill sets up, that the complainants are each of them owners of real estate within the corporate limits of the town of St. Charles, and that each of them is liable to be assessed, and to pay his rateable proportion of taxes levied by the said corporation.

This was an action of ejectment, by Reuben Rowley against John Dukes, for the recovery of the north-east quarter of section twenty-two, in township eleven north, range six east of the fourth principal meridian, Peoria county. The declaration was filed at November term, 1857. Trial by-jury at November term, 1858; verdict for plaintiff; new trial allowed, and cause continued.

This was an action of trover for a promissory note. The declaration also charged a conversion of bank notes and coin. The general issue was pleaded; also a special plea that the note which was payable to the plaintiff below, was only nominally hers, but really the property of the defendant below. Verdict and judgment for plaintiff. The defendant below appealed.

This case was reversed on the ground of an insufficient return, by the sheriff. The facts are sufficiently stated in the opinion. .

<p>ERROR TO PUTNAM.</p> <p>A party is not liable as a matter of course to the highest penalty imposed for obstructing a highway, and it is erroneous so to charge a jury.</p> <p>A street of an unincorporated town or village, when dedicated, is a public highway, and any person obstructing it, will be liable to the statutory penalty. Otherwise if it is incorporated, as then the streets are vested in the town, and aref'subject to the corporate authorities.</p> <p>The owner of lots abutting on only one side of a street, cannot vacate it.</p>

This was an action brought by appellee against appellants, for services in cleaning and taking care of a school-house in the city of Peoria. Declaration contained common counts. Plea, general issue, and notice of set-off. On the trial, plaintiff proved that she had performed the labor, and its value.

This was a suit, commenced by attachment, before a justice of the peace of Peoria county, for the sum of $158.46. Judgment for $24.29. Defendant’s attorney entered motion before justice of the peace to dismiss suit, because the justice had not jurisdiction1 of the amount sued for, which motion was overruled, and judgment rendered as above. Defendant prayed an appeal to the Circuit Court.

Plaintiff in error sued defendants in error, to March term, 1859, of Peoria Circuit Court, in trover, for corn of plaintiff, converted by defendants to their use. Damages laid at $800. Plea: general issue and joinder. Cause tried at November term, 1859, before said court and a jury ; verdict and judgment for defendants.

This was an indictment for murder. A motion to quash the indictment was overruled by the court. The facts of this case are substantially as follows: The parties came to the house of deceased in the same wagon, and supped together at the house of deceased. They were neighbors, living about half a mile apart, and in some degree related. The witnesses were the children of deceased. The prisoner and deceased came to the house of deceased about sundown. Both were intoxicated.

This was an action commenced in the Circuit Court of Peoria county, by motion, under the 116th section of chapter 59, of the Revised Statutes, entitled Justices of the Peace and Constables, to recover the amount of money collected on an execution, by plaintiff in error, with twenty per cent, damages.

This was an action of assumpsit. The declaration contains two special counts, and a count for money had and received, and a count for an account stated. The defendant pleaded in abatement as follows: STATE OF ILLINOIS, i In the Superior Court of Chicago, cook county, ss. j November Term, A. D. 1859.

This suit was commenced against Asa Dow and Joseph L. Hurd, the plaintiffs in error, who were served, and Alfred A. Arrick and George W. Anderson, who entered their appearance voluntarily, and were defaulted. Duncan Stewart was not served. . Defendants Dow and Hurd plead, and issue was joined upon the pleas.

<p>APPEAL FROM KANKAKEE.</p> <p>Where a trial has heen had, and a motion for a new trial remains undecided till an ensuing term, but is then granted, leave may be awarded to withdraw pleadings demurred to which had been previously adjudicated—the court being in possession of the record, (no final judgment having been rendered;) has discretion over, and control thereof. Such practice not commendable.</p> <p>Property levied upon, is not discharged from the power of the execution, because a forthcoming bond has been given.</p> <p>If the best proof of a fact is not adduced, the party should object on the trial; such an objection comes too late in the Supreme Court.</p>

<p>ERROR TO McHENRY.</p> <p>Although an execution from the Circuit Court is returnable in ninety days, and the sheriff must make his levy within that time, and it is his general duty to hold the writ for that period, yet he may take the responsibility of returning it sooner, if he has made a demand of property, and if it is unsatisfied; the return will be the foundation for a creditor’s bill.</p> <p>The sheriff will be responsible, if his return is untrue.</p> <p>A voluntary assignment of a debtor, for the benefit of creditors, will not be upheld, which authorizes a sale of the property assigned, publicly or privately, on a credit.</p>

<p>APPEAL FROM KANKAKEE.</p>

This was an action of assumpsit, brought by appellee against appellant in La Salle County Court, at December term, 1858. The declaration contained only the common counts for goods sold and delivered by defendant to plaintiff, for money had and received, etc. Copy of account sued, being $1,000 for money loaned, $1,000 for labor performed, $1,000 for goods sold and delivered, and $1,000 due on account stated. Plea, general issue.

This was an action of assumpsit, brought to the Knox Circuit Court by defendant in error, against plaintiff in error, for a breach of marriage contract. The case was tried before Thompson, Judge, and a jury. Verdict and judgment for plaintiff below. The plaintiff introduced evidence to prove an agreement to marry.

Brauhn filed his petition in the Cook Circuit Court, to enforce a mechanics’ lien against said Nibbe. The petition alleges that on the 18th day of March, 1857, the parties entered into a contract in writing, by which Brauhn was to build a house for Nibbe, and have the same completed on or before first of June, 1857.

<p>It was agreed that a case between the said plaintiffs and Stephen T. Napper, should be decided, by the court, on the same state of facts.</p> <p>The record shows the recovery of a judgment in favor of plaintiffs in error, against the above-named John Hughes, and one S. S. Hughes, on the 9th day of July, A. D. 1858, for damages and costs, $151.71; that on the 2nd day of July, A. D. 1859, they issued execution thereon, directed to the sheriff of Jo Daviess county.</p> <p>That said execution has the following indorsements thereon:</p> <p>This execution came to hand for collection this 5th day of July, A. D. 1859, at 8 o’clock A. M. J. H. CONLEE, Sheriff.</p> <p>By virtue of the within execution, I have levied on one black horse, one two-horse wagon, 20 acres more or less of corn, 5 acres of wheat more or less, one acre of potatoes more or less, as the property of John Hughes, defendant in said execution. J. H. CONLEE, Sheriff.</p> <p>July 6th, 1859. Per J. Sí. Conlee, Deputy.</p> <p>This above property is ordered to be released by order of plaintiffs’ attorney, this 18th day of August, 1859. J. H. CONLEE, Sheriff.</p> <p>F. By virtue of the within execution, I have, this 18th day of August, 1859, levied upon the following described lands described as follows, to wit: The east half of the south-east quarter of Section number twenty-six, in Township number twenty-nine north, Range two east of the fourth principal meridian, in the county of Jo Daviess, and State of Illinois.</p> <p>E. S. Smith, attorney for plaintiffs, paid to me the necessary amount of money to redeem the said property, before sold upon another execution.</p> <p>J. H. CONLEE, Sheriff.</p> <p>Galena, Nov. 4th, 1859.—By order of Walter Kimball, clerk of the Superior Court of Chicago, all proceedings are stayed on the within execution, and the same is returned to said court.</p> <p>At the September term of said court, said John Hughes made his motion to quash and set aside said last-mentioned levy upon said real estate, for following reasons:</p> <p>1st. That said first named execution was levied upon the growing crops upon said lands, and upon a certain horse and two-horse wagon, a copy of which said levy is as follows, viz.:</p> <p>By virtue of the within execution, I have levied upon one black horse, one two-horse wagon, 20 acres more or less of corn, 5 acres of wheat more or less, one acre of potatoes more or less, as the property of John Hughes, defendant in said execution. J. H. COULEE, Sheriff.</p> <p>My 6th, 1859. Per J. M. Conlee, Deputy.</p> <p>The above property is ordered to be released by order of plaintiffs’ attorney, and which chattels were surrendered to the same by the defendant, John Hughes, and which said property was and is of value sufficient fully to pay and satisfy the debt, interest, and costs due.</p> <p>2nd. Said levy has never been released by said defendants, nor has the same been done with their approbation and consent, but the same remains in full force, and binding until the sale of said property to satisfy the said execution.</p> <p>3rd. Said second named execution was paid and satisfied in full by said sale of said lands.</p> <p>One Stephen T. Napper, as purchaser under a previous sheriff’s sale, appeared and made a motion to set aside redemption of and levy upon said real estate, upon same grounds and affidavits. To maintain their motion, the said defendants introduced first, the affidavit of John H. Oonlee, sheriff of Jo Daviess county, dated 2nd day of September, A. D. 1859, which states that he is the sheriff of Jo Daviess county; that he made the various returns and levies upon the execution in favor of plaintiffs in error, against the said Hughes, and that they are all correct, a copy of which execution and return is attached to said affidavit; that the levies and release were made as therein set forth; that the personal property levied upon first, and released by order of plaintiffs’ attorney, would have sold at public sale for enough, in his opinion, to have satisfied the said execution. He also states that on the same day, the 18th of August, 1859, he received for collection, an execution in favor of Samuel S. Streeter, against the said John Hughes, for the sum of $618.92; that said execution was issued from the Circuit Court of Cook county, upon a judgment rendered on the 5th day of October, A. D. 1859, by virtue of which he levied upon the same lands of said Hughes, a copy of which executions and indorsements and levy are attached to said affidavit; that B. S. Smith, as attorney for said plaintiff in last-mentioned execution, paid him, said sheriff, a sum of money sufficient to redeem said land from a previous sale.</p> <p>Also, the affidavit of said John Hughes, of date September 2nd, 1859, who swears that he is one of the defendants in execution in favor of plaintiffs in error; that the levy upon the personal property was made as mentioned in return of sheriff, and that the said personal property was his own; that he turned it out to the sheriff, and that he, said affiant, did not at the time, nor does he now consent that said levy upon said personal property be released.</p> <p>Also, the affidavit of said Stephen T. Napper, which states that affiant is well acquainted with the said Hughes, and with the personal property levied upon by virtue of said execution in favor of plaintiffs in error, and that the same, in his opinion, would sell at public sale for sufficient to satisfy said execution in full.</p> <p>Also, the affidavit of J. M. Conlee, that he was well acquainted with the personal property levied on by virtue of the execution in question, and that, in his opinion, it would sell for enough, at public sale, to satisfy the same in full.</p> <p>Also, the joint affidavit of J. H. Vaughn, H. S. Bering, E. C. Manpin, of date September 2nd, 1859, which states that each knows both of the Hughes, and the personal property levied upon by virtue of said execution in favor of plaintiffs in error, and that, in their opinion, said property, at public sale, would satisfy said execution in full.</p> <p>Also, the further affidavit of Stephen T. Napper, of date September 10th, 1859, which states that the real estate levied upon by the sheriff of Jo Daviess county, was, on the 18th day of May, A. D. 1858, sold by Simeon K. Miner, then sheriff of Jo Daviess county, upon a special writ of execution from the Circuit Court of said county, upon a decree of foreclosure against the said premises, and that said Napper, being the highest bidder therefor, upon such sale, became the purchaser thereof for the sum of $1,370.66, and refers to the records of said county for the judgment; that he received from said sheriff a certificate of purchase in due form, a copy whereof is attached to said affidavit, by virtue of which sale, purchase and certificate, he would be entitled to a deed on the 18th day of August, unless said premises should be redeemed according to law.</p> <p>And also, the further affidavit of James M. Conlee, sheriff, of of date September 10th, 1859, which repeats the facts of the levy upon said personal property of said John Hughes, upon the said execution in favor of plaintiffs in error; that said levy was made on the 6th day of July, 1859, and the said property was left by deponent with the said John Hughes, for the reason that the crops levied on were still growing and standing at the date of the levy, and that the horse and wagon were for the removal and harvesting of said crops, and that he, deponent, had sufficient confidence in said Hughes to justify him in leaving said property in said Hughes’ charge until time of sale, it being understood at the time of levy, that a reasonable compensation should be paid said Hughes for the removal and harvesting said crops, but that the subsequent release of said crops prevented any definite arrangement with regard to the exact compensation to be made to said Hughes for the removal of said crops.</p> <p>Also the further affidavit of John Hughes, of date September 10th, 1859, which states that at the time of the aforesaid levy upon said personal property by said sheriff, mentioned in the foregoing affidavit, he asked the said sheriff to leave said horse and wagon in his possession, and for the use of the same, he, said Hughes, promised to harvest and remove the crops levied upon at a very reasonable compensation ; that said sheriff agreed to leave, and did leave the same in deponent’s charge, to be delivered on demand on day of sale; that subsequently the levy was withdrawn, for cause unknown to deponent and without his consent, and that he has been paid nothing,—but his services for tillage, harvesting, and removal would be reasonably worth fifty dollars.</p> <p>The plaintiffs in error, to oppose the said motion, introduced the following affidavits:</p> <p>The further affidavit of deputy sheriff Conlee, of date October 8th, 1859, which states, that he made the levy upon the execution in favor of plaintiffs in error, upon said personal property ; that no delivery bond was taken for the same; that affiant resides at Scales Mound, in sight of the residence of said Hughes ; that when he levied thereon, he asked said Hughes for a delivery bond ; that said Hughes replied, that he would not ask any one to go on a bond for him, and said deponent might leave it or not, but that it would be forthcoming, if left with him, on day of sale ; that a portion of said property was of such a nature that it could not be taken possession of at that time ; that said wheat was afterwards harvested by said Hughes, but whether before or after the release of levy, deponent cannot state, nor what has become of the same ; that deponent has no knowledge in regard to said property since release of levy, except having seen the same in Hughes’ possession, and hearing Hughes say he was in possession, and using said property; that he does not know whether the other crops than the wheat are harvested or not, but that said Hughes is in possession of the land upon which crops were growing, and exercises acts of control and ownership over the same, as before the levy.</p> <p>Also the affidavit of Ezekiel S. Smith, under date of September 21st, which states, that on the 14th day of August preceding, he had a conversation with said Hughes, at Scales Mound, where Hughes told him that the execution had been levied on the crops on the place in which he lived, and that if the officer should sell them, it would very much distress his family; that some other property levied upon belonged to his son, who had signed the note with him as security; that the property was in their possession, and had not been taken away by the officer; that on the next day he met said Hughes at Galena, who requested him to make some arrangement, if possible, so the property levied on by the sheriff might be released; deponent further told Hughes that he would see plaintiffs, and if no one else had purchased it for Mr. Streeter, would put the same upon the farm and release the personal property; Hughes requested the deponent to do so, as it would distress his family to lose the crops, and as he could not work much, his family would suffer; deponent returned to Chicago, purchased the judgment for Mr. Streeter, pursuant to the request, and notified Hughes, and on the 18th day of August then next, deponent directed the sheriff to release personal property as Hughes desired, and levy upon the real estate, which was then done.</p> <p>Upon this affidavit was indorsed the following stipulation :</p> <p>The said plaintiffs hereby stipulate and agree to bid for the land levied upon in this cause, the full amount of the judgment and costs, in favor of Smith, Pollard & Co., above the redemption money.</p> <p>SMITH & DEWEY,</p> <p>September 21 st, 1859. Plaintiffs’ Attorneys.</p> <p>The defendant, to maintain further his issue, read in evidence a further affidavit of John Hughes, under date of October 15th, 1859, who testified that his attorneys have furnished him with a copy of an affidavit filed in said suit by E. S. Smith, attorney for plaintiffs; that he has carefully examined the same, and says that it is true that said Smith was at Scales Mound on or about the 14th day of August; that it is also true, as he believes, that said Smith directed the sheriff to release the levy upon the personal property and to levy upon the real estate, but that the said affidavit, with the exception of the above facts, is unqualifiedly and absolutely false; that he had but few moments conversation with said Smith, who inquired what judgments were against him, and deponent told him of the one in favor of Smith, Pollard & Co., upon which he had turned out his crops to satisfy the same; that he never said the sale of said crops would distress him, or any other remark which by any means could be so understood by said Smith; that said Smith represented to deponent that if he would confess judgment in his favor upon two notes of this deponent, which had been long before paid and settled by deponent, and which said Smith had unlawfully detained, that he, said Smith, would give him three years to redeem the said real estate from said fictitious judgment. Deponent then denies, specifically, each statement of conversation between himself and said Smith, as detailed in Smith’s affidavit; deponent further states, that all the last foregoing alleged conversation could not have taken place, as he purposely avoided said Smith after his dishonest propositions in regard to said fictitious judgment.</p> <p>Also the affidavit of William R. Rowley, of same date, who testified that he is clerk of the Circuit Court; been a resident of the county fifteen years; is well acquainted with said John Hughes ; that to his knowledge said Hughes’ character for truth and veracity has never been questioned, and deponent would believe his statement under oath or otherwise.</p> <p>Also the further affidavit of Thomas J. Manpin, of same date, who testified: is well acquainted with said John Hughes ; has known him about ten years ; has entire confidence in his veracity, and firmly believes said Hughes could not be induced to make any misstatement; that his character as a man of his word has never been questioned in the community where he resides ; that deponent has resided at Scales Mound more than ten years.</p> <p>Also the affidavit of Richard Seal, of same date, who testifies that he is clerk of the Circuit Court of Jo Daviess county; has been a resident of the county for twenty-two years; is well acquainted with said Hughes ; that the character of said Hughes for truth and veracity has never been questioned to his, deponent’s, knowledge, and that deponent would give full credit to what he said under oath or otherwise.</p> <p>The court, after hearing counsel, set aside said levy upon said real estate, and said plaintiffs excepted, and appealed to this court.</p>

This was a proceeding by distraint for rent, commenced by appellee. Distress warrant issued to collect the sum of $196.85, rent for the use of lot 5, in block 60, of Russell, Mather and Roberts’ addition to Chicago, dated March 17th, 1859. On the 12th day of November, 1859, the cause was tried, and issue found for the plaintiff, and damages assessed at $175, and motion entered for a new trial was overruled. The evidence consists in a stipulation and a lease.

This was a motion, on the part of defendant in error, to set aside and vacate an entry of satisfaction of two judgments in favor of Reissig.

This was a proceeding, by motion, in the McLean Circuit Court, to set aside a sheriff’s sale of real estate, Davis, Judge, presiding. The motion was filed at the September term, 1859. Notice of the motion was given to plaintiffs in error.

<p>ERROR TO LA SALLE COUNTY COURT.</p> <p>It is erroneous to render a judgment by nil dicit, on a declaration 1 count and the common counts, upon the overruling of a demurrer to the special count, when there is a general issue filed to the common counts. laving a special</p> <p>A declaration upon an assigned note is obnoxious to a demurrer, which only avers that the note was “ assigned and deliveredit should aver an indorsement.</p> <p>Upon overruling a demurrer to a special count, the defendant not answering further, a judgment nil dicit should be rendered on that count; and when the jury passes upon the common counts, the special count should also be passed upon, so that there may be but one judgment.</p>

This was an action on a note, dated the 26th day of February, 1858, for one hundred and fifty dollars, with use, payable by the first day of November, then next, to Timothy McKanna, and signed by defendants, and indorsed to plaintiff. ' - Common counts, money paid, had and received, etc., work and labor, and for an account stated, were added. First plea—Non-assumpsit.

This was an action of covenant, brought by the plaintiff in error against the defendant in error, to recover damages for the breach of a covenant, contained amongst others in a lease, dated March 22nd, 1858, made by defendant in error to plaintiff in error, for certain premises in the city of Chicago, known as the “American House.” The declaration, after stating the execution of the lease, sets forth the covenant sued on, the breach thereof, and the claim for damages, in…

This was an action of assumpsit, commenced in the La Salle County Court, by the appellee, against the appellant, and was tried at June term, 1859, before Champlin, Judge, a jury having been waived by agreement of the parties, and a judgment found for appellee. The declaration contained a special count upon a promissory note, which is in the words and figures following: $397.69. • La Salk, October 11th, 1858. Eighty days from date, I promise to pay to Wm.

This action was commenced by Cook, against Wood and his sureties, the latter having been a deputy under the former as sheriff of Cook county. A demurrer was sustained to the declaration at November term, 1856. The plaintiff had leave to amend his declaration, and the defendants leave to plead by Wednesday morning following. At April term, 1857, a default was entered against the defendants, and reference was had to the court to assess the damages.

This was a special action on the case, for fraud and deceit by the Foreman Brothers, defendants in the court below, concerning an agreement with Baldwin, plaintiff below, by which they agreed to sell and deliver to him, clothing and dry goods amounting, at New York or eastern manufacturers’ prices, with fifteen per cent, added, to the sum of $7,500, in exchange for a house and lot in the city of Chicago. The declaration contains four special counts, and one count in trover.

This was an action of ejectment, brought by appellant against appellee, who was the tenant of A. J. Higgins, to recover possession of a portion of the south-west quarter of Section 22, Township 39 north, Range 14. The evidence on which the decision of the court is based, is fully stated in the opinion.

This was an action of trespass quare clausum fregit, commenced before a justice of the peace, of the county of Tazewell, by the defendant in error, against the plaintiffs in error, and verdict and judgment in favor of plaintiff. Defendants below then filed itheir appeal bond, and prayed an appeal to the Circuit Court.

This was an action of replevin, brought by defendant in error against plaintiff in error, to recover certain property which the defendant, as sheriff, had seized on execution, under a judgment against one Stephen March. Plaintiff claimed the property as the assignee of March, under a voluntary assignment. The defense was, that the assignment was void. That the assignee was not responsible pecuniarily, and that his habits were such as to show fraud in the assignment.

This was an action of assumpsit, brought by appellee against appellants, together with one Cyrus Adams, as partners, to recover a sum of money which he had paid, at the request of Adams, to take up a note signed “ Adams, Blinn & Co.,” held by Bailey and Mead. Appellants and Adams comprised the firm of Adams, Blinn & Co. The declaration contains the common counts for goods, wares and merchandise ; money lent; and money had and received; for interest; and upon account stated.

This was an action of assumpsit against the Mississippi Telegraph Company, for an injury sustained by a horse of the defendant in error, by running against the telegraph wire, which, it is alleged, was left too near the earth.

There was an affidavit of plaintiff for garnishee process, sworn to and filed in the Superior Court of Chicago, on the 1st day of July, A. D. 1859, which sets forth that the plaintiff lately recovered a judgment in'the Cook County Court of Common Pleas, against Michael Hambrecht, for the sum of $558.82, and $17.32 costs of suit.

This was an action, brought by Taylor, against the railroad company, to recover the value of a trunk and its contents, lost between Chicago and Galena, the wife of the plaintiff being a passenger, between those places, over the road of appellant.

This is a suit of The People, for the use of Burgstresser & Co., against Randolph and others, on an administrator’s bond, in an action of debt, assigning as breaches the wasting and misapplying of the estate of Jonathan B. Wildey, deceased. Declaration alleges an allowance of claim in favor of Burgstresser & Co., and assigning numerous breaches of bond.

<p>APPEAL FROM THE SUPERIOR COURT OE CHICAGO.</p> <p>A verbal authority to an auctioneer to sell lands, is sufficient.</p> <p>An attachment of sufficient property to satisfy the claim is, like an execution levied, satisfaction of the debt, and may be so pleaded.</p> <p>The collection, by execution, of a debt secured by deed of trust, must be held to be an election by the creditor to relinquish his rights under the trust deed. Where a party has an election of remedies, he will be bound by any acts which indicate that his choice is made.</p>

This was an action of assumpsit, commenced agianst the plaintiff below by writ of attachment, returnable at the March term, 1857, of the Circuit Court of Cook county.

This declaration avers the defendant to be a common carrier of goods and chattels for hire, in and by a certain railroad or railroads from the city of Chicago to the city of St. Louis.

This defendant in error was indicted with three other persons, and convicted in the Lake Circuit Court, of sheep stealing. The proof showed that on the 11th of December, 1858, two sheep were taken from the yard of one Clark Gale, worth two dollars per head. One Walden Easton lost one sheep the same night. Allen Lanphiere also lost a sheep the same night, worth three dollars.

This was a suit against defendant for trespass on the case upon promises, damages $200, directed to the sheriff of Kane county.

This was an action of assumpsit, on a note for $775, dated Oct. 1, 1857, due May 1, 1858, payable to Greenbaum and Brothers, and indorsed by them in blank. First plea, general issue. Second plea, usury to part. That the note was made and indorsed, and left with bill and note brokers, to raise money for the makers, of which the appellee had notice when he bought it.

This was an action of assumpsit on two notes, dated April 20th, 1858, payable in six months, to E. L. Sherman, or order; by him indorsed in blank, and indorsed by Greenbaums in blank “ without recourseone for $1,150, and one for $1,250. It is averred in narr. that E. L. Sherman indorsed and delivered the notes to the appellee. First plea, general issue. Second plea, to first and second counts, usury.

Baker filed a declaration in trespass, containing four counts, that defendants, Warne and Bowne, on the first, tenth, fifth and twenty-sixth days of February, 1859, broke and entered plaintiff’s close, to wit, the east half of the south-east quarter of Section 31, in Township 41 north, of Range 7 east, and the east half of lot 2 of the north-east quarter of Section 6, in Township 40, Range 7 east of the third principal meridian, in the county of Kane and State of Illinois,…

The facts appearing upon the record are as follows: John McCardel, being indebted to the Commercial Exchange Company, (a banking institution in the city of Chicago,) in the sum of two thousand dollars, executed and delivered to Ashley Gilbert (the secretary of said company,) a certain mortgage deed, or conditional bill of sale, to secure the payment of said sum of two thousand dollars, and future advances not to exceed the sum of six thousand dollars, payable in one year.

<p>APPEAL EROM PEORIA.</p> <p>Although the government surveys should rule, where they can be ascertained, yet if parties agree upon other lines of division, they will be estopped thereby.</p> <p>What a party stated in reference to a boundary line, at the time he was supposed to have recognized it by planting a hedge, is proper evidence for a iurv, as a part of the same transaction.</p>

This was an action of assumpsit, for work and labor done, commenced by the appellee against the appellant, in the Circuit Court of Marshall county. The cause was tried before Ballou, Judge, and a jury, at the May term, 1858, of said Circuit Court, and a verdict and judgment against the appellant, in favor of the appellee, for $262.13, to reverse which judgment, the said appellant brings this cause into this court.

Tras bill alleges substantially that the Congress of the United States passed an act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits, approved Sept. 28,1850. The 3rd section limits the grant in effect to the legal subdivisions of land, the greater part of which is wet and unfit for cultivation. The last section of that act extends its provisions to the State of Illinois.

This is an action of forcible entry and detainer, instituted upon the following complaint before a justice of the peace: “ STATE OF ILLINOIS, Warren County, ss. • “ Zachariah Bruyn, being duly sworn, deposes and says, that he is now lawfully entitled to the possession of north-west quarter of section nine (9), in township nine (9) north, in range two (2) west, in Warren county, in the State of Illinois, and that he was and has been lawfully entitled to the possession of said…

This declaration is in assumpsit, and contained one special count on the following note, to wit: $561. Aurora, June 13th, 1857. One year-after date, we promise to pay to the order of George M. Hadden, five hundred and sixty-one dollars, value received, with ten per cent, after due. And also the common counts and account stated, ad damnum, $1,000.

This was a bill filed by Charles Butler, John P. Chapin, and Walter S. Gurnee, on behalf of themselves and all other shareholders in the Chicago Land Company, and Mahlon D. Ogden, the… Held: or to be owned or held, for the benefit of said association, should be held by the trustees in their individual names, in fee simple, as joint tenants,' and not as tenants in common, to them and to their assigns, and to the survivors and survivor of them, and to his heirs and assigns.

<p>■APPEAL FROM THE SUPERIOR COURT OF CHICAGO.</p> <p>The proviso to the 3rd section of the act of 1857, amending the General Banking Law, is constitutional, although it was not submitted to a vote of the people.</p> <p>The holder of several bank bills may present them as an aggregate sum and demand specie, and the bank is bound to pay.</p> <p>In this State, corporations, like individuals, are subject to the control of the legislature, so far as it relates to the enforcing of obligations.</p>

On the 4th of January, A. D. 1860, a final decree was made in this case, “ that the order enjoining the defendants and their agents, and allowing the decree heretofore entered in the above cause, be continued and made perpetual, upon the complainant’s depositing in the office of Jesse K. Dubois, the auditor of state, the legal coin of the United States, for the redemption and payment of the circulating notes described in said bill of complaint, together with twelve per cent,…

This was an action of assumpsit, brought by Bay against Bell, in the Marshall Circuit Court. The declaration contained a count on a promissory note, hereinafter set out, (in evidence,) and the common counts. The defendant pleaded non-assumpsit and payment, and on these pleas issues were formed. The venue was changed to La Salle.

Suit brought by defendants in error against plaintiffs in error. Declaration in covenant, upon a policy of insurance, alleges that policy was issued on the 6th of September, 1857, upon goods in stores Nos. 131 and 133 South Water Street, in Chicago.

An issue of property in the plaintiff in error, Adams, was submitted to, and tried by the court, in an action of replevin, on the 5th March, 1860, and taken under advisement until the 14th March. On that day the court found the issue for the plaintiff in error, Adams, and the following minutes were made: By the court: “ March 14—Judgment for defendant, with retorno habendo.

This was an action of assumpsit, brought by appellees against appellants, to recover damages from them, as common carriers, for injury to goods which appellants had undertaken to transport for appellees. The facts on which the case is founded, are very fully and clearly stated in the opinion.

This was an action of assumpsit for work and labor on an open account, first tried before a justice of the peace, and after-wards carried by appeal to the Circuit Court of Peoria county. On the trial, the plaintiffs below, proved that they built the vault in question, in accordance with the plans furnished by defendant at the time of making the contract, except when they were changed by order of defendant’s. agent; also the value of the work and materials furnished.

The defendants in error, Frederick Faucet, Samuel Isham and Thomas Faucet, filed in the Cook County Court of Common Pleas, their declaration, wherein they complain of Walter S. Stevens and Fletcher Stevens, defendants.

This was a special proceeding on the part of the city of Chicago, to collect an assessment for grading and macadamizing West Madison street, from Sangamon street, west, to the city limits.

This was a special proceeding, on the part of the City of Chicago, to collect an assessment levied for macadamizing West Randolph street from Halsted street to Union Park. The case was tried in the Superior Court of Chicago, and judgment taken by default.

These were all special proceedings on the part of the City of Chicago, to collect assessments for improvements. On the hearing, it appeared that the column of figures headed “ valuation” contained no dollar mark or other indication to show what they meant, except in the case of Martin 0.

This was a proceeding on the part of the City of Chicago to collect a special assessment, which was resisted before the Superior Court by the defendants in error, who were mortgagees of the property affected. It was insisted, that as mortgagees they had no right to contest the collection, but the court below permitted them to do so, and rendered judgment in their favor. The case is now brought to this court to reverse that decision.

Tras was a proceeding to levy a special assessment in the city of Chicago, heard before the Superior Court of that city.

<p>ERROR TO COOK.</p> <p>The intention of the parties to a written contract, as deduced from a fair construction of the words used by them, must govern, in deciding questions as to their rights under it.</p> <p>A construction given to the words of the contract in this case, as applied to the word “ front/' in extending boundaries.</p>

This was a proceeding in chancery, by appellant against appellee, to have a certain writing of agreement delivered up, and an assignment indorsed thereon, canceled. On the trial, the court below dismissed the bill at appellant’s cost, who now brings the case by appeal to this court. The material portions of the evidence will be found incorporated in the opinion.

The record in this case shows, that on the 31st day of December, 1854, George Smith became the owner in fee of real estate described in the answers of the said Moore and Smith.

Defendants in error filed their petition for a mechanics’ lien, in the Cook County Court of Common Pleas.

Declaration in ejectment, appellee against appellants, for the following land, situate in Cook county, and State of Illinois, to wit: That part of the north-east fractional quarter of Sec. 22, T. 39 N., R. 14 E. of third principal meridian, bounded as follows : Beginning on west line of said fractional quarter section, 277-nny feet south from north-west corner thereof; thence east, to centre of Wabash Avenue; thence north, 34 feet; thence west, to west line of said…

This is a cause in chancery, upon a bill exhibited by the appellee against Cyrus Adams, the appellants and others, to foreclose a mortgage.

<p>This was a petition for a mechanics’ lien, filed in the Cook County Court of Common Pleas, by appellee, against appellants, based on a contract which is set out in the opinion.</p> <p>The case was afterwards transferred to the Superior Court of Chicago.</p> <p>To this petition the defendants filed a special demurrer, and alleged, as causes of demurrer—</p> <p>1. That it does not appear, by the said petition, that said contract was made with the owner of the premises.</p> <p>2. The petition does not show a contract to erect said engine, etc., on the land or lot described.</p> <p>3. It does not allege any contract within the meaning and spirit of the statute.</p> <p>4. It does not appear that the petitioner furnished “ labor or materials for erecting or repairing any building, or the appurtenances of any building,” on said land or lot.</p> <p>5. The case made by the petition does not meet the requirements of the statute.</p> <p>6. And because the petition is. in other respects informal and insufficient.</p> <p>And thereafter, on argument of the said demurrer, the same was overruled, with leave to plead over, which not being done, the said petition was taken as confessed.</p> <p>And afterwards, a decree was entered upon the verdict of a jury, finding the sum of $531.77 due the said petitioner for the materials and machinery constructed, furnished, and erected, by said petitioner, upon the premises as described in the petition; and thereupon the court decreed, that the said petitioner have judgment against the machinery and materials constructed, furnished, and erected by said petitioner, and that such machinery, and materials, and real estate be sold to satisfy said judgment, and that the said William Burkhart and Frederick Burkhart be foreclosed of all right and equity of redemption of the same, and all persons claiming or to claim said premises from or under them, be foreclosed from all equity of redemption from said sale.</p> <p>A supplemental petition was subsequently filed by appellee, asking other and further relief against the defendants, but as the case is decided on the ground of fatal defects in the original petition, it is not thought necessary to give a more detailed statement.</p>

The complainants, Jane Stow, late Jane Rattray, heir and administratrix of David Rattray, her husband, William H. Stow, and the other heirs of David Rattray, filed their bill of complaint against Christopher C. Robinson, to compel performance of the following agreement: “ Articles of Agreement, made and entered into between C. C. Robinson, of the City of Chicago, County of Cook and State of Illinois, party of the first part, and David Rattray, of the same place, party of the…

Suit commenced by Edwin Hunt against Isaac Cook, by summons. Declaration contains only the common counts for work and labor done, and materials furnished, money lent and paid, money had and received; goods, wares and merchandise sold and delivered, and labor, care and diligence bestowed. Damage, $3,500. Plea, general issue. Cause tried before Van H. Higgins, Judge, and a jury, and verdict for $1,678.83.

This was a petition for a mechanics’ lien, by appellee against appellant. The facts necessary to a full understanding of the case, are stated in the opinion. The jury found a verdict for the petitioner, for $3,119. Motion for new trial overruled. Exception taken. Judgment and decree for petitioners, for $3,119, against John Link ; that petitioners have a mechanics’ lien upon the premises and real estate described in plaintiff’s petition.

<p>ERROR TO THE SUPERIOR COURT OF CHICAGO.</p> <p>An affidavit of a plaintiff in execution to obtain a ca. sa., which declares that the debtor has refused, and still does refuse, to surrender his “ property and estate” in satisfaction of an execution, is insufficient.</p> <p>The case of Fergus v. Board, 15 Ill. R. 361, examined and modified. Held, that the affidavit should aver that the defendant had estate, lands and tenements, goods or chattels, liable to he seized and sold, specifying them, and that he refuses to surrender them after a personal demand made; if a demand is practicable.</p> <p>An averment, that a party has refused to surrender his property, does not imply that he has it. A demand should be made, when practicable.</p> <p>A judgment debtor has a right to offer real estate in satisfaction of an execution, before his personal property can be levied upon.</p> <p>Although an officer executing a ca. sa. upon an insufficient affidavit, may protect himself by pleading the process, yet if he should refuse to execute it, he would not be liable; nor is he liable for an escape under it.</p> <p>An officer is not liable for an escape under a void process, or for a refusal to execute it; otherwise, if it is only voidable.</p>

On the 23rd day of November, 1857, John Barrows filed, in the Circuit Court of Cook county, his sworn petition for a certiorari, stating, That he is and was, on the 24th June, 1857, the owner of N. W. qr. Sec. 22, T. 37 north, R. 11 east, in Cook county. That said railroad company, before that day, had located their line of road over said land diagonally.

This was an action of assumpsit, in the Circuit Court of Cook county, against appellants, as indorsers of a note. Plea of the general issue, entitled of the Cook County Court of Common Pleas, with affidavit of merits. Similiter not signed, but in the handwriting of plaintiff’s attorney. On motion, the plea was stricken from the tiles, and judgment taken by default, from which judgment defendants appealed to this court.

<p>The facts of this case and the pleadings, on which the decision is based, are sufficiently stated in the opinion.</p>

This was an action of debt, commenced by Oliver M. Butler, for the use of the township treasurer of St. Charles, against the plaintiffs in error, on a town collector’s bond, Marks being the collector, and the other defendants sureties. The cause was tried before I. 'Gr. Wilson, Judge, and a jury.

This was an action of debt, commenced by plaintiffs in error, against the defendants in error, in the Circuit Court of Putnam county, on a sheriff’s bond. The Judge of Putnam Circuit Court sustained a demurrer to plaintiffs’ declaration, and gave leave, on application of plaintiffs’ attorney, to file an amended declaration.

This was a petition for a partition of the land in controversy, filed by appellees against appellant and one Isabella Sampson. On the trial in the Tazewell Circuit Court, before Harriott, Judge, and a jury, appellees proved title to two undivided thirds of the land. Appellant claimed under a tax deed from the sheriff, given in 1847 for the taxes of 1845.

Shit was commenced in trespass, for taking goods, etc., by Hiram E. Barstow, against James H. Karr, Cyrus R. Brown, and Michael B. White, on 2nd of April, 1858, in the Circuit Defendant pleaded, 1st, not guilty; 2nd, special pleas, alleging that plaintiff, at the April term of said court, 1857, commenced an action of replevin against James H. Karr, one of the defendants, for the recovery of the same goods, the taking of which are the same supposed trespasses-in the…

It appears by the record, that on the 15th day of December, 1856, Michael McEvoy and wife, conveyed to appellant, by a deed of trust, to secure an indebtedness of $1,000, the following described real estate, to wit: Lots one (1) and two (2), in block twenty (20), in West Joliet, Bluff street; also, forty-five (45) feet of the rear of lots one (1) and two (2), running easterly to the canal tow-path ; being all the lands I own in block twenty (20), West Joliet.

This was an action of assumpsit by appellee, against appellant, for board and lodging furnished to one Austin Gallup, at appellant’s instance and request. The evidence adduced on the trial, and the instructions given, are stated in the opinion. Judgment was rendered for plaintiff below, and appeal taken to this court.

This was an action of assumpsit by appellees against appellant, to recover for work and labor performed under a contract.

This was an appeal, from a trial of the right of property-before a justice of the peace, which was tried before Harriott, Judge, in the Circuit Court of Tazewell county. It appears, from the evidence, that the property in question, a horse, was levied on by the constable, as the property of one George Outlaw, in whose possession it was, under an execution against him, in favor of Ketchum, the plaintiff in error.

The facts of this case are the same as those of the preceding case; except the instructions which are stated in the opinion, and the evidence of Michael Watson, called by plaintiff, who said, that he is son of plaintiff; knew the horse in question; plaintiff had owned the horse for four or five years ; he sold the horse to George Outlaw on the eleventh day of August, 1859, conditionally; that Outlaw was to take the horse and take good care of him, and if he paid for it by…

This was an action of assumpsit, by appellee against appellant, on the following contract: “ Farmington, August 28, 1856.

This was an action of replevin, brought by Prettyman against Flood, to recover a horse which had been levied upon by Flood, as constable, under an execution against William Trent. The suit was tried at the September term, 1859, of the Tazewell Circuit Court, before Harriott, Judge, and a jury. Declaration contained only one count, for taking one bay horse. Defendant pleaded: 1. Non cepit. 2. Property in William Trent. 3.

Pleas in the Circuit Court of Kane county, in vacation, after the May term, 1858. Sept. 21,1858, there was filed in said court a note, warrant of attorney, affidavit, declaration, and cognovit. Copy of note, as follows: St. Charles, Dec. 16, 1857. $1,824 41-100. One year after date I promise to pay to B. T. Hunt, or order, at his office in St. Charles, eighteen hundred and twenty-four 41-100 dollars, for value received, with interest* (Signed) W. S. ATCHERSON.

Tras was an action upon a certificate of deposit, by appellee against appellant, brought before a justice of the peace, September 19th, 1859, and taken to the Recorder’s Court of the city of LaSalle by appeal.

<p>ERROR TO TAZEWELL.</p> <p>A mortgagee under a chattel mortgage who endeavors to take possession of the property mortgaged on the next day after default in payment, and continues his efforts till he is successful, is not chargeable with laches.</p>

This was an action of assumpsit, brought by the above appellees against the appellants, to the January term, A. D. 1859, of the Cook County Court of Common Pleas. After the organization of the Superior Court of Chicago, a change of venue was taken from that court to the Kane Circuit Court.

November 18th, 1859, judgment was entered up by the clerk of the Superior Court, Chicago, ex parte, in favor of Leiter, on the following judgment note: $700. Chicago, October 25, 1858. Eight months after date, for value received, we jointly and severally promise to pay to the order of Cleveland and Russell, the sum of seven hundred dollars, with interest after due at ten per cent, per annum, payble at the office of Greenbaum Brothers, Chicago. REUBEN CLEVELAND. J. K. RUSSELL.

The facts of this case are stated in the opinion. The instructions mentioned, as having been refused by the court below, were as follows: 5.

This was a petition for dower, by plaintiff in error against defendant in error. The evidence shows that Wm. H. Brown and Wm. Porter, plaintiff’s husband, entered into a verbal agreement that Brown was to furnish $1,000, and Porter was to trade with it, and to have one-half of the profits made by his speculations in loaning it, or in buying and selling, and trading generally.

This was a petition by appellees against appellants for a mechanics’ lien. The petition shows, that about the 2nd of March, A. D. 1857, petitioners made a contract with Gregg to manufacture boilers, flues, fire-fronts, etc., for a distillery.

This was an attachment suit, commenced in McLean Circuit Court, by defendants in error against plaintiff in error, as a non-resident. On the 2nd June, a writ of attachment issued and was levied on real estate, and a return of “ not found ” as to plaintiff in error. And at the June term of said Circuit Court, the cause was continued.

This was an application by defendant in error, as administratrix of the estate of John Turney, deceased, for the sale of ■the real estate of the decedent, to pay debts. The material facts are stated in the opinion. The court entered an order of sale, as sought by the administratrix. Afterwards, leave was granted to amend the petition, as stated in the opinion, and a further order of sale.

This was an action of assumpsit by plaintiffs in error, one of whom was a non-resident, against defendants in error. A motion was made by defendants to dismiss the suit for lack of a bond for costs. This motion was sustained, and exception taken. The case is now brought to this court by writ of error.

Tms was an action of detinue for a horse, commenced by the appellee against the appellant in the Circuit Court, of Rock Island county. Issues in this case were, non detinet; property in defendant; property in plaintiff and defendant as tenants in common ; property in Henry S. White and others. The case was tried before Drury, Judge, and a jury. .

This was an action on the case, tried in the Circuit Court of Winnebago county, before Sheldon, Judge, and a jury, and verdict and judgment against appellant for $255. The defects in the declaration for which the case is reversed, are stated in the opinion.

This was an action of trover, by appellee against appellants, for one steam engine and boiler, and the fixtures and appurtenances thereto belonging. The declaration alleged the conversion on the 20th of April, 1859. The defendants severally pleaded the general issue, which was joined.

Hughes filed his motion, supported by affidavit, in the Cook Circuit Court, to quash an execution issued on a judgment obtained by Streeter against him, on the 16th day of August, 1859, for six hundred and sixteen ninety-two one-hundredths dollars and costs, and to maintain his motion offered the following pieces of evidence: A written notice of this motion—a copy of which was served on defendant’s attorney, 3rd Sept., 1859.

These were actions of assumpsit, commenced in La Salle County Court, by the appellee against the appellant, and tried at the September term, A. D. 1859, before Ohamplin, Judge, a jury having been waived by agreement of the parties. Judgments were rendered against the appellant. The declarations each contained a special count upon notes, which were payable without defalcation, for value received, at the Broadway Bank of New York City.

This was a motion to dismiss an appeal, because the judgment below was for costs only, and the action did not relate to a franchise or freehold; and because the judgment was in favor of the parties appealing; and they did not sign the appeal bond.