Volume 26 — Illinois Reports

This was an action of ejectment, brought by Ballance against Carroll, in the Circuit Court of Peoria county, to recover the following described real estate: “ All of lot three, in block forty-seven of Ballance’s Addition to Peoria, together with certain adjoining ground, enclosed and occupied therewith, described and bounded as follows, to wit: Beginning at a point in the south-west line of said lot, 127 feet south-east of the lower line of Water street; thence to a point in…

This was a creditors’ bill filed in the McHenry Circuit Court, alleging that in the year 1859, plaintiffs recovered judgment in the United States Circuit Court, for the Northern District of Illinois, against Augustus G. Mansfield, for $647.49 damages and costs, the issuance of writ of fieri facias, delivery to the marshal, and return of “ no property; ” that there is now due complainants the sum of $647.49, with interest from February 23,1859; that Mansfield was in…

A writ of scire facias upon a bail bond in a criminal case, was issued from the Warren Circuit Court, against Levi Marquet and George W. Brown, which was returned to said Warren Circuit Court, served upon the said George W. Brown, and returned non est inventus as to Marquet.

This scire facias alleges, that on September 30th, 1858, A. B. Fuller being confined in jail of Ogle county, under an indictment for passing counterfeit money, found at June term, 1858, of Ogle Circuit Court, filed in said court, June 12th, 1858, Fuller and Mix, on the 13th day of September, 1858, appeared before J. Y. Eustice, judge of the 22nd circuit, and executed a recognizance as follows: STATE OE ILLINOIS, 1 22nd judicial circuit, j Be it remembered, that on the 13th…

This was an action of debt against principal and surety on a bail bond, brought in the name of John L. Wilson, sheriff of Cook county, for the use, etc. The defendant Myrick, the surety, filed divers pleas to plaintiff’s declaration, among which was the general issue of non est factum, upon which issue was joined. The plaintiff demurred to divers others of the pleas.

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

These were actions of assumpsit commenced in the LaSalle County Court, by the appellee against the appellant, and tried .at the December term, A. D. 1860, before Ohamplin, Judge, a jury having been waived by agreement of the parties, and judgment was rendered in favor of appellee. The declaration contained a special count upon a promissory note, which is in the words and figures following: $786.72. LaSalle, January 20th, 1859.

This suit was commenced before a justice of the peace of Peoria county, and taken by appeal to the Circuit Court, where it was tried at November term, 1860. A trial by jury was had, and verdict and judgment for plaintiff's for $300.

This was an action of trespass commenced against the defendants below, returnable at the November term, A. D. 1859, of the Lee Circuit Court. The declaration was for trespass to personal property in the usual form. To the declaration Booth, one of the defendants below, filed two pleas. First, not guilty.

<p>ERROR TO McHENRY.</p> <p>A party who neglects to call up his demurrer to a declaration, and has a trial on the count demurred to, cannot assign error on his own negligence.</p> <p>Where a debtor of one of two joint contractors is garnisheed and a judgment is obtained against him, the party whose debtor has been garnisheed may make his co-contractor contribute for his part of the debt satisfied by the garnishment— although the debtor garnisheed has been granted time for the payment of the judgment against him.</p> <p>In garnishee proceedings it is advisable to enter the judgment against the garnishee in favor of the defendant in the attachment suit.</p>

This was an action on a note, commenced before a justice of the peace; judgment rendered in favor of the plaintiff below, and by him appealed on the same day. The transcript shows that Lawrence, the plaintiff below, recovered judgment against the defendant, of $48.16, and costs. Same day plaintiff appealed his own judgment. Summons issued from the Circuit Court, January 16th, 1861, to appellee. Summons served on Bacon.

This declaration in assumpsit contains six special, and the common counts. The second count is upon a promissory note made by the appellant to one Solomon Shoup, for $550, dated April 1st, 1858, and due six months after date, and indorsed to appellees by said Shoup, and a promise made by the appellant, after the note became due, to pay interest on it at the rate of ton per cent., after maturity.

This action was assumpsit, brought by Rogers against Parmelee, to the November term, A. D. 1860, of the Superior Court of Chicago. The declaration contains all the common counts in the usual form, but does not conclude contra formam statuti.

This was an action of assumpsit upon a special guarantee, brought by the appellee against the appellant. The declaration contains three counts. To the first and third counts a nolle pros, was entered in the court below.

This was a bill filed in the Knox Circuit Court for relief and discovery. A demurrer was interposed, on the ground that the complainants had not made proper parties to the bill; the court sustained the demurrer to the bill, and on this order, the complainants below brought this writ of error.

This case was ■ commenced by Conover against George W. Campbell, before, a justice of the peace, to recover three times the value of property levied on by virtue ■ of an attachment, issued at the suit of Phillip F. Elliott against said Conover, and which attachment was placed in the hands of plaintiff, as constable, and by him levied upon property claimed to be exempt from execution.

The appellees sued out an attachment against Johnson, who was a non-resident, alleging that fact, and that he and Garrison were joint debtors, and prayed a summons against Garrison. The sheriff returned the attachment served, by a levy on some shingles, and by reading the process to Johnson. Garrison not found. After writ had been returned, a motion was made by Johnson only, to quash the writ, and a cross-motion to amend.

This was an action of debt on a penal bond, for $2,000, commenced by the defendants in error against the plaintiff in error, in the Cook County Court of Common Pleas, (now the Superior Court of Chicago). The writ of summons claimed $500 for damages. The defendants moved to strike the plaintiffs’ declaration from the files of the court, on the ground of a variance between the amount of damages therein stated, and the amount claimed in the summons.

Oct. 7,1858, the plaintiff in error, and Myron H. Fish and Charles C. Goodale, filed in the Henry Circuit Court, their declaration in ejectment against the defendant for east half of northwest quarter section 9, township 17 north, range 8 east, in Henry county, claiming the same as their estate in fee; alleging themselves to have been in possession Jan. 1st, 1858, and that defendant entered, etc., Jan. 2nd, 1858. Subjoined to the declaration was a notice in due form.

This was an action of assumpsit, commenced by defendant in error, against plaintiff in error. Declaration filed May 14th, 1857.

This was an action of assumpsit brought in Peoria Circuit Court to March term, A. D. 1860. . Summons issued to sheriff of Peoria county. Return on summons : STATE OF ILLINOIS, ) PEORIA COUNTY. ) SS' I have duly served this summons by reading the same to Isaac Underhill, this 15th day of February, A. D. 1860. JOHN BRYNER, Sheriff Per Easly, Deputy. Declaration avers, that payee, Wm.

This was a bill in chancery, alleging that Dooley gave Culbertson a note for $1,235.68, dated July 1, 1855, due in one day, and agreed to pay 15 per cent, interest. Dooley made some payments, which were indorsed on said note. Culbertson, after said note was due, sold it to Stipp. Stipp and Dooley, Dec. 1,1856, computed amount due on old note at fifteen per cent. Stipp threatened to sue Dooley if new note was not given.

This was an action of assumpsit, brought in the Rock Island Circuit Court by the appellee against the appellant. The declaration contained the common counts only, to which the general issue was pleaded. The plaintiff filed, with his declaration, this account: Moline Water Potvee and Manufacturing Co., To Lorain L. Nichols, Dr. May 11.

This was an action of assumpsit; damages, one thousand dollars. Defendant filed the plea of non-assumpsit to said declaration at the May term of said court, and a jury was impanneled to try the issue in said cause. The substance of the testimony is stated in the opinion of the court. The plaintiff’s attorney addressed the jury. The court inquired of the defendant if he desired to address the jury.

This is an action of ejectment. Case of plaintiff below is as follows: Deed from George F. Rumsey and wife to Mariette N. Chester, of lots seven (7) and eight (8), and the south twenty-nine (29) feet of lots nine (9) and ten (10) in block twenty-four (24), Wolcott’s Addition to Chicago; deed dated Nov. 1st, 1856; acknowledged Nov. 11th, 1856. Mortgage from Angus-tin.

This was an action of replevin brought by Ransom and Bates in the Ogle Circuit Court against Davis, to recover a stock of goods from the possession of the defendant, and they file their plaint, sworn to by Henry A. Mix, in which he swears “ for and in behalf of” the plaintiffs, that the plaintiffs are the owners of the goods, as mortgagors under a certain chattel mortgage, made by one Edmund P. Sexton to them, hereinafter set forth.

Dependants in error, on the fourth of February, 1860, filed their bill in the Lee Circuit Court against plaintiff in error, Ely, alleging that, on the fourteenth day of January, 1857, defendants in error made their promissory note, payable to Quartus Ely, twelve months after date thereof, for the sum of six hundred and thirty-three dollars, for an indebtedness from said Martin Eastwood to said Ely; that to secure the payment of said note, they, at the time of making the…

This is a proceeding in distress for rent by John H. Sparr, the landlord, to recover five hundred dollars, claimed to be due him by his tenant, Edward G-. Asay, the appellant. The distress warrant commands the sheriff, or any constable of the county of Cook, to distrain of the goods, etc., for the «sum of five hundred dollars, for ten months’ rent.

This was a petition filed in the Peoria Circuit Court, by the heirs at law of Henry Schnebly, deceased, to have his widow’s dower assigned to her.

This was an action of assumpsit, brought by the indorsor of a promissory note against the makers. Declaration in the usual form, with special and common counts.

William Menzies sued out a writ of attachment against the estate, real and personal, of the Mineral Point Railroad Company, with a summons to the Galena and Chicago Union Railroad Company to appear and answer, as garnishee of the defendant, returnable on the third Monday of November, 1858. The writ was returned without service as to the defendant, but duly served on the garnishee.

This was an action of ejectment, commenced by appellee against appellant, to recover the possession of lots one, two, three, four, seven and eight, in block sixty-four, Ninawa Addition to city of Peru, at the February term, A. D. 1861. By consent of parties a jury was waived, and the cause submitted to the court for trial, upon the declaration (which is in the usual form), and the plea of general issue.

This was a bill in chancery, filed by Bntterworth and others, against Brown, Stevens, B. D. Huntoon, Mary P. Huntoon, etc., alleging that complainants bought the interests of Woodworths in certain premises at trustee’s sale, subject, however, to another trust deed on said premises, to secure a note for about $3,700, the note executed by Woodworths to J. H. Huntoon, and E. D. Huntoon being the trustee in trust deed.

Bonham, the complainant, filed his bill against the defendants in the Henry Circuit Court, stating that on and before the 11th November, 1851, the Dements and Stedman were partners at Dixon, Lee county, Illinois, in the purchase and sale of real estate; that on that day they owned the' south-west fractional quarter, and the south half of the north-west fractional quarter of section 19, in township 14 north, 4 east, in Henry county.

<p>The facts of this case are fully set out in the opinion of Mr. Justice Breese.</p>

The complainants by their bill allege that they were, during the month of December, 1859, and subsequent thereto, partners, and that as such, said complainants, during the month of December, and subsequently thereto, placed in the hands of defendant, Moore, in all the sum of $1,950, to be invested in corn for complainants.

This indictment at the October term, A. D. 1859, of the Recorder’s Court of the city of Chicago, contains two counts for larceny. “ That Frederick W. Myers, John Haslett, and John Smith, late of said city, on the 10th day of June, in the. year of our Lord one thousand eight hundred and fifty-nine, in said city of Chicago, in the county and State aforesaid, one sorrel mare, of the value of one hundred dollars, one other mare, of the value of one hundred dollars, the personal…

On the 13th day of February, 1858, the property in question was sold to Greely and Gale upon an execution on a judgment of Greely and Gale against… Held: without redemption, their certificate of purchase at said sheriff’s sale until the 3rd of April, 1859, which was more than twelve months after the date of the sheriff’s sale; and on that day, Jones, the holder of the trust deed, bought from Greely and Gale the sheriff’s certificate of purchase, and had it assigned to him.

This was an action of ejectment to recover lots one and two, in block ten, in Butterweight and Webster’s Addition to Chicago. There are three counts. In the first, all the plaintiffs are joined. In the second, Edward claims an undivided third, and in the third, Charlotte E. and Albert, claim two undivided thirds. Plea, general issue and joinder.

This was a suit on an official bond against a city collector and two of his sureties.

This was a declaration on a note of §155, dated August 28, 1857, due one year after date, and made by plaintiff in error, and payable to ¡3. Bell, and indorsed by him. Copy of note and account, but no copy of indorsement was given with the declaration. Motion by defendant below for a continuance, for want of a copy of the indorsement on the note, overruled. General issue and joinder.

Wilson recovered a judgment against Smith before a justice of the peace, from which Smith took an appeal to the Circuit Court of Cook county. Two writs of summons were issued out of the Circuit Court, both of which were returned “ not found.” The alias writ of summons was returned on the 3rd of September, 1860. At the October term following, Smith had the suit dismissed at plaintiff’s cost for want of prosecution.

This was an action in assumpsit, brought to recover the value of four hundred and ninety-five cords of wood, claimed to have been delivered by plaintiff to defendant, at its request, in the months of January and February, 1857. Plaintiff filed his declaration in the usual form of the common counts. Defendant filed the following pleas: First—Plea of general issue. Second—Plea of payment.

This was an action of trover brought to the January term, I860, of the Superior Court of Chicago, by the appellees against the appellants, to recover the value of a ten-foot engine lathe, with counter shaft and hangers, consigned to James Kendall, and received by Hale & Co., in the regular course of their business as receiving and forwarding merchants, at Chicago, from one of a line of propellers for which they were agents, and held by them for charges, etc. The declaration…

Nowland sued Gilmore and others on a note, which is as follows: §5,000. Peoria, January 12th, I860. Ninety days after date, we, or either of ns, promise to pay to the order of W. L. Ewing, five thousand dollars, for value received, payable at the banking house of L. Howell & Co., Peoria, with interest from date, at the rate of ten per centum per annum, until paid. JAMES GILMORE, Jb. WM. MoCULLOUGH. CYRUS JONES. NELSON JONES. Indorsed: “ Pay to L. Howell & Co., or order. Wm.

This was an action in case; the declaration contained six counts.

This was an action of assumpsit, on a promissory note, with a power of attorney to confess judgment. A judgment was confessed at October term, 1852, of the Cook Circuit Court. At June term, A. D. 1859, a motion to set aside the judgment was filed by defendant, and proceedings stayed.

This was an action of assumpsit, commenced June 19th, A. D. 1858, by the filing, on behalf of plaintiff below, (defendant in error), of an affidavit to hold to bail, which states that the action is brought to recover the sum of $5,921.86, money had and received. Affidavit concludes with the allegation that said sum of $5,921.86, and interest from October 1,1857, is due. Capias ad respondendum returned to July term, 1857.

This was an action of assumpsit, brought by the appellee against the appellant, on a parol submission to an award in the Superior Court of Chicago, and tried before the court, without the intervention of a jury, at the December term of said court, A. D. 1859.' The declaration contained two special counts, and a count upon an account stated. The defendant pleaded the general issue.

This was a declaration in assumpsit, in the usual form, charging defendant for services rendered in the Supreme Court, as an attorney, etc. Plea of general issue in the usual form. Jury trial; verdict of jury in favor of plaintiff for $1,000. Defendant’s motion for new trial overruled. Judgment for Earned in the court below. Appeal granted. James H. Rees, called by plaintiff, testified: Resides in Cook county.

This action was assumpsit, in the Superior Court of Chicago. The declaration of the plaintiff below, who is also plaintiff in error, was the single count for'money had and received, with a bill of particulars, claiming that the sheriff of Cook county paid to the defendants the proceeds of the goods of one McKinlay, which he should have paid to plaintiff.

This bill charges that David Strader was, on the 20th October, 1848, possessed of divers lots and parcels of land in the town of St. Charles, on the east side of Pox river, in Kane county, and claimed to be the owner. That said Strader, on that day was indebted to plaintiff in the sum of $558.18, money lent.

This was an action of assumpsit tried before Van H. Higgins, one of the judges of said court, without a jury. The only contest was as to one item of plaintiff’s account. Defendants had been partners in the name of D. W. Corbin & Co., and as such, had dealings with the plaintiff, in which plaintiff became indebted to the defendants in the sum of about $60, excluding the sum of $119 in dispute.

Alfred Webster, as administrator de bonis non, filed with the County Court of Rock Island his petition, substantially as follows: To the Hon. Cornelius Lynde, Jr., Judge, etc., and alleges, in substance, that D. Benton Pitts died December 8th, A. D. 1857; that January 12th, 1858, Cyrus Pitts was appointed administrator of the personalty, etc.; that said Cyrus Pitts made an inventory and caused an appraisement bill of the personal, estate, and credits of said D. Benton Pitts,…

This is an action of assumpsit, brought by appellees against appellants, to the July term,'1860, of the Peoria County Court, upon the following note : Si,500. Peoria, May 12th, 1857. One year after date, for value received, we jointly and severally promise to pay to Albert G. Long, the sum of fifteen hundred dollars, with interest at the rate of six per cent, per annum from date. JAMES WEAR. AARON D. WEAR. WASHINGTON C. WEAR.

This was an application to the Circuit Court of Winnebago, to remove a judgment from a justice of the peace into that court.

This declaration complains of Joseph W. Tinkham, Thomas P. Eobb, and Henry Payson, defendants,'as makers of a promissory note, signed J. W. Tinkham & Co. Writ served on Joseph W. Tinkham, and Thomas P. Eobb, Henry Payson “not found.” At the October term of the Circuit Court, 1857, default was entered against Joseph W. Tinkham, and Thomas P. Eobb, concluding as follows: “ Wherefore said plaintiff ought to have and recover of defendants, Joseph W. Tinkham and Thomas P. Eobb,…

A demurrer was sustained-to the following declaration, and the plaintiff below brings the case to this court. The first count sets forth, that on the 1st September, 1857, plaintiff owned, in fee simple, certain premises, consisting of a lot twenty-two feet wide, fronting on the south side of Madison street, and abutting on an alley, in block 18, School Section Addition, in the city of Chicago.

This was an action of debt on an appeal bond, brought by defendant in error against plaintiffs in error,' on the following bond: Know all men by these presents, that we, Jasper Haven, Edson G. Haven, and Edmund E. Haven, are held and firmly bound unto Daniel Green, in the penal sum of two hundred dollars, lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, and administrators, jointly and severally, by these…

Cassius B. Dewey, the husband of the appellee, had been to Princeton, in Bureau county, Illinois, on business, went to the depot of the appellants at Princeton, to take passage on their cars to Mendota, in LaSalle county, Illinois, where he was then living.

This was an action for malicious prosecution, brought in the Superior Court of Chicago, by Adam G. Innis against William M. and John H. Ross. Declaration in trespass on the case, and alleged that the defendants had caused the plaintiff falsely and maliciously and without any probable cause to be arrested on a charge of embezzlement ; that he was brought before the magistrate and an examination had, and that the plaintiff was discharged, etc. Plea, general issue.

This was an action of debt brought by the plaintiff in error against the defendant in error, and Almon J. Lounsbury, to the December term, 1857, of the County Court of Livingston county. Summons served on Edwards ; Lounsbury not served. The declaration is in the words and figures following, to wit: STATE OE ILLINOIS, 1 In the Comity Court thereof, of the December Livingston county. j ' Term, A. D. 1857.

Pleas before J. H. Howe, Judge, etc., at a term of the Circuit Court in and for the county of Rock Island.

This was a suit commenced by attachment before Smith, J. P., under extended jurisdiction of Peoria county. Judgment for plaintiff against Silsbury and Samuel Smith, for $126.08. Appeal by Silsbury to Circuit Court. Trial by jury as to him, and verdict for same amount. Motion for new trial overruled, and judgment. The bill of exceptions shows, that the cause of action was an account for hardware, amounting to $176.32. Credits of $250 indorsed.

This was an action of case at common law, for slander, brought by appellee in the Circuit Court of Winnebago, and thence taken by change of venue to the Stephenson Circuit Court.

This was an action of covenant, commenced in- the La Salle Circuit Court, by the defendant in error against the plaintiff in error, to recover damages for an alleged breach of covenant on the part of the plaintiff in error, in not fulfilling a contract with the defendant in error for the sale arid delivery of a quantity of corn. The declaration contains one count only, setting out the contract in hcec verba.

At the May term .of the Kane Circuit Court, 1859, Stevens, the plaintiff, filed his declaration in assumpsit against the defendant, Herrington, laying damages at two thousand dollars, to which the defendant filed the general issue. At the November term, 1859, there was a trial by jury, and plaintiff obtained judgment for two hundred and fifty-eight dollars. The defendant moved for a new trial. At the February term, 1860, the motion for a new trial was argued.

The plaintiff in error filed his bill in chancery' showing that he is executor, etc.; that he is a resident tax payer of School District 8, Township 31 north, Range 1 west of the third principal meridian, and was such resident tax payer of said district before and at the time of taxes becoming chargeable for the year 1859, and as such resident tax payer of said district, listed for taxation for said year the personal property of said testator; that though plaintiff is not…

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

The allegations of the bill are, that on March 24,1856, Pettigrew and Gudgell became partners—no time limited—equal in loss and profit. Petigrew put in $1,482.96, and Gudgell, $900. Gudgell was to put in $100 more; Gudgell was not to take anything out for the first year unless he paid down for it. The partnership continued until February 27, 1857, when Homer became a partner.

This was an action of covenant, commenced by appellee against the appellant, on a contract of writing, of which the following is a copy: This article of agreement, made and entered into this eighth (8th) day of August, 1856, between Abner Reeves and J. S. Forman, witnesseth: That said Reeves has this day sold lot sixteen (16), in the subdivision of B. S. Morris and others; of the south-east quarter of section eighteen (18), township thirty-nine (39), Range fourteen (14) east…

This action was trespass on the case, brought by Newell against the city of Pekin, to recover the value of a horse killed by falling through a bridge, leading from the river bank opposite Pekin to the bluff, and tried before Harriott, Judge, and a jury, at the February term, 1861. Plea, the general issue.

This was an action of assumpsit. The declaration contained common counts, and three special counts on a bill of exchange, of date August 11,185T, for $297.38, drawn by the defendant, as partners, upon James J. Todd & Co., to the order of plaintiff Stephens, payable on demand. The defendants first demurred generally to the declaration, and then filed pleas as follows: 1st, The general issue; 2nd, Set-off; 3rd, Accord and satisfaction. Issue was formed on the foregoing pleas.

This was a bill filed in the Circuit Court of Marshall county, for an injunction to restrain the sale of certain premises in said county, under a prior decree of the same court, in a proceeding for mechanics’ lien.

Silas Gray and James Van Allen were indicted for burglary and larceny, in the Court of Common Pleas for the city of Aurora, Parks, Judge, presiding, and were tried and convicted.

Bull commenced an action of covenant in the Superior Court of Chicago, against said appellants. Damages were laid at $3,000. Summons was issued and served on the same day. The following is a copy of the amended return of service of the officer, to wit: “ Served the within writ on the within named Hugh Maher, by informing him of the contents of the within writ, and he accepting service, the 12th of October, 1860; the other defendant not found in my county, 12th October, 1860.

Kidder filed his bill in the Peoria Circuit Court for an injunction to restrain the city from collecting an assessment made upon a certain lot in Peoria, to pay damages occasioned by opening a street. The bill states that the city was incorporated on the 2nd December, 1844. by a special act. That on the 12th February, 1855, the charter was amended, and a law passed providing for the opening streets, etc., in the city ; which act is substantially set out in the' bill.

^ This was an action of trespass, commenced by Fuller against Paige, in Aurora Common Pleas Court, and taken, by change of venue, to the Kane Circuit Court. The declaration was in trespass in the usual form, for taking and carrying away goods and chattels of the plaintiff, consisting of a lot of drugs and medicines. There was a trial by jury, and a verdict for the defendant. One Myers mortgaged the goods in controversy to Paige, Myers attending the store as a clerk.

There was a judgment for the plaintiff in the Circuit Court for $1,500 debt, and $145.50 for damages. The facts of the case are stated in the opinion of the court.

This was an action of replevin in the cepit and detinet, brought by plaintiff in error against defendant in error to recover a horse. Pleas—1st, Non detinet. 2nd, Property in Wm. D. Briggs. 3rd, Property in defendant. 4th, Property in said Briggs, judgment in favor of John H. Buck, execution issued on the same and placed in the hands of defendant as constable, and levy, by virtue thereof, on the horse in question.

A note had been given to Charles E. Howe as trustee of Sarah H. Brown, who was a married woman, in consideration of the conveyance by her of certain real estate held in her own right, which note was secured by a deed of trust on the estate conveyed. The bill is brought for the sole use and benefit of Sarah H. Brown.

<p>APPEAL EROM KNOX.</p> <p>In a declaration in case against a corporation for injuries sustained, the declaration should allege that the defendant was guilty of negligence, and that the plaintiff exercised proper care; and the proof should support the allegations.</p> <p>It is not negligence in an engineer of a train on arriving at a station, if he should let on more than the exact quantity of steam necessary to overcome the friction of frogs and switches, thereby creating a jerking motion of the train, if in so doing he exercises a reasonable discretion.</p> <p>It is not usual to place a chain across the back end of the platform of a caboose car, and the omission to do so is not negligence. A passenger taking a freight train, takes it with the increased risks, or diminutions of comfort incident thereto, and if it is managed with the care requisite for such trains, it is all that those who embark on it have a right to demand.</p> <p>Information by a conductor of a freight train to a passenger of mature age and accustomed to railroad traveling, that persons sometimes debarked at a particular place, does not require the passenger to take the risk of leaving the car at such place, and is not negligence in the conductor.</p> <p>The cave and diligence to be used by both parties, are to be measured by the known perils to which passengers are exposed by the particular kind of conveyance used. Breese, J.</p> <p>The Supreme Court Will examine the whole record, the facts as well as the law, and reverse or affirm a case as justice shall require, although a jury may have passed upon it. A jury should not show by verdict the appearance of being governed by passion, prejudice or unworthy motives.</p> <p>Where a party receives an injury to which his own negligence has contributed, he cannot recover.</p>

The facts of this case are stated in the 24th volume of these Reports, page 512, and it is not deemed necessary to republish them.

These were actions of assumpsit brought by the appellees against the appellant, to recover money paid upon a contract for the purchase of real estate, and were tried before the court, without the intervention of a jury, at the July term of said court, A. D. 1860. The declaration contained the common counts for money had and received to plaintiff’s use, for interest on payment forborne, and on an account stated.

This was an action on the case by appellees against appellant under the statute, in the LaSalle Circuit Court.

The following are admitted and agreed to bo the facts in the case: In August, A. D. 1860, plaintiff and one Braden, both then and now citizens, residents and voters of the State of Illinois, made a wager of $1,000 each on the result of the then approaching presidential election. Plaintiff betting $1,000 that S. A. Douglas would be elected the next president of the United States, and Braden betting $1,000 that he (Douglas) would not.

<p>The facts of this case are stated in the opinion of Mr. Justice Bbeese.</p>

The affidavit of Smith Morey, defendant in error, as the foundation of this replevin suit, states that he is the owner and lawfully entitled to the possession of certain cattle, of the value of seven hundred and fifty dollars; that John Gray, Thomas West and Henry S. Misner have wrongfully taken and unlawfully and wrongfully detain the same from him; and that said cattle have not been taken for any tax assessment or fine levied by virtue of any law of this State, nor seized…

This was an act of trover, originally brought in the Peoria Circuit Court, and the venue charged to Tazewell.

Plaintiff filed a declaration in assumpsit, with one special count, on a note given to John C. Wilson or order, for one hundred and eighty dollars, dated April 8th, 1857, due two years after date, and by Wilson assigned to plaintiff, with the common counts for work, etc., for money had, etc. The defendant filed several pleas. 1st, General issue. 2nd, That the note mentioned in declaration was given to one John C. Wilson for illegal interest, over and above ten per cent, per…

Appellee filed his petition for a mechanics’ lien against Simpson, Wild & Co. The appellants were made parties as mortgagors. A. C. Goddin, one of the appellants, filed a demurrer to petition. Demurrer of Goddin overruled. A decree was entered. On motion of appellants, decree was opened, and they allowed to answer.

This action was assumpsit, brought to the August term, 1859, of the Superior Court of Chicago.

This was an action of replevin brought by the appellant, who claimed the property as mortgagee, by virtue of a chattel mortgage. The mortgage was acknowledged by a justice of the peace in the town of North Chicago, and the mortgagor “ resided” in another town. The appellee was a creditor of the mortgagor, and seized the property by virtue of a landlord’s warrant for rent due and unpaid from the mortgagor, the property being in the possession of the mortgagor when seized.

This was an action against the defendants, for trespass to personal property, damages, $500, directed to the sheriff of Kane county. Returned served same day.

This was a bastardy case, tried in the Iroquois Circuit Court. The jury found Wilson guilty. The judgment of the court was, that he pay fifty dollars annually for seven years, and give a bond for $800, conditioned for the payment of the judgment. The mother of the child was the complaining witness. The connection was alleged to have taken place in the dining room of the house where the parties resided.

This case is brought to this court from Lake Circuit Court, by-writ of error, for the purpose of reviewing and reversing the decision of the Circuit Court in sustaining the proceedings of the defendants in error, in condemning the plaintiff’s land, across which the road of defendant is located, in Lake county.

This was an action of assumpsit brought by plaintiff in error against defendant in error, and tried before Harriott, Judge, and a jury, at June term, 1860, of the Tazewell Circuit Court. The declaration contained the common money counts. Defendant filed a plea of the general issue, and three special ' pleas.

A trial was in progress in the Circuit Court of LaSalle county, between the administrators of one Yoder, deceased, and the Rock Island Railroad Company, Yoder having been killed, as was alleged, by the corporation. By consent, the court let the jury visit the place where the death occurred. During the absence of the jury, the court called the docket, and among others, this case, which was dismissed for want of prosecution, the counsel being absent.

The plaintiff sued defendant in assumpsit for his legal fees as justice of the peace, and for like fees collected and paid into the city treasury, which were duly demanded by plaintiff from defendant. Defendant’s plea—general issue. Judgment for defendant, and exception.

This action was brought by Williams as president of the Southern Bank of Indiana, against Ward, as the indorser of a bill of exchange. The principal facts are briefly these : Ward, living at Detroit, wrote his name on the back of a printed form of a note, blank, except the check mark, which was filled with $3,000, and delivered it to one G. F. Lewis, on which to raise money for him, Ward.' Ward and Lewis had before borrowed money from the Southern Bank.

This was an action of assumpsit. First count. Common count for the price and value of divers-oxen, cattle, goods and chattels, sold and delivered by James M. Robinson to defendant. Second count. Common count for divers notes, goods and chattels, sold by James M. Robinson, in his lifetime, to defendant, Cast, and at his request. Third common count. For money had and received by Cast to the use of Robinson, profert of letters of administration, promise to pay, and breach.

<p>The opinion in this case gives a statement of it.</p>

This was an action of assumpsit. The count was for work and labor. Plea, general issue. Case submitted to court for trial without a jury. The parties filed an agreed state of facts substantially as follows: The appellee is a carpenter, and worked on street crossings and streets in the West Division of the city, in October and November, 1859, twenty-three and a half days, at one dollar and a quarter per day, being $29.37.

■ This was a declaration in assumpsit, containing two special counts on two promissory notes, and the common counts. Plea of general issue, and stipulation of plaintiffs and defendants, that all matters that could be properly pleaded should be given in evidence under the general issue. Trial by jury at the December term, 1860, and verdict for defendants. Motion for a new trial overruled, and judgment on the verdict. Appeal prayed and granted.

<p>APPEAL PROM HENRY.</p> <p>The correction of mistakes in awards, as in other instruments, must be referred to courts of equity.</p> <p>Where a mistake sought to be corrected in an award, is matter of substance, or affects the merits of the controversy, a resort must be had to equity.</p>

The affidavit of Gustavus C. Pearson, the foundation of this proceeding, states that plaintiffs have recovered judgment against defendants for the sum of $795.90; that execution has been issued and returned unsatisfied.

<p>This is an action of assumpsit brought on this note:</p> <p>$500. Chicago, August 30th, 1856.</p> <p>Ninety days after date, for value received, we jointly and severally promise to pay to the order of F. H. Benson & Co., at the office of E. H. Benson & Co., in Chicago, five hundred dollars, with interest at ten per cent, per annum, it being for money loaned.</p> <p>DUNLAP, COLBURN & CO.</p> <p>ANDREW J. BROWN.</p> <p>Indorsed: “ F. H. Benson & Co.” [Erased.]</p> <p>“ F. H. Benson & Co.”</p> <p>To plaintiff’s declaration, the defendants, Dunlap and Colburn, pleaded, 1st, The general issue; 2nd, Payment, surrender, and cancellation of the note.</p> <p>To which defendant Brown pleaded, 1st, General issue; 2nd, Payment, surrender and cancellation of the note ; 3rd, That he signed said note as surety for Dunlap and Colburn; that when said note fell due, the same was in the hands of F. H. Benson & Co., indorsed in blank; that the said Dunlap and Colburn, at the request of this defendant, applied to F. H. Benson & Co. for said note to pay the same—and said F. H. Benson, & Co. produced said note to said Dunlap and Colburn, and they then and there, with the knowledge of this defendant, so being such surety, took up and paid said note, and the same was thereupon canceled and surrendered to Dunlap and Colburn—which note afterwards the said Benson & Co. fraudulently obtained from Dunlap and Colburn, and caused this suit to'be instituted thereon, in the name of said plaintiff.</p> <p>On the trial, Dunlap and Colburn withdrew their pleas, and judgment by default was entered against them.</p> <p>A jury was impanneled to try the issue joined between plaintiff and defendant Brown. Verdict against all the defendants, for $663.60.</p> <p>Motion of defendant Brown for a new trial overruled, and judgment rendered against all the defendants.</p> <p>It appears that Dunlap, Colburn & Co., during the summer of 1856, were doing business with F. H. Benson, a banker and broker, in Chicago, under the name of P. H. Benson & Co., and that they were accustomed to make their notes payable to the order of P. H. Benson & Co., and leave them with P. H. Benson & Co., to be negotiated, and the proceeds placed to their account ; that the above note was duly executed by Dunlap, Col-burn & Co.', and Andrew J. Brown, and left there for this purpose, about the last of August, or beginning of September, 1856, and was sold to Haggerty, Sept. 4,1856, and the proceeds placed to the credit of Dunlap, Colburn & Co. That during the last of August, another note for the same amount, signed by the same parties, dated August 23,1856, and payable in precisely the same way, in ninety days from date, was left for the same purpose. This last note was sold to Watson, Tower & Co. The first, or Haggerty note, matured Dec. 1,1856, and the Watson & Tower note, Nov. 24, just seven days earlier. It did not appear that Haggerty knew that Brown was surety upon the note. The Haggerty note was left by Mr. Haggerty with F. H. Benson <fc.Co., for collection, Nov. 26,1856.</p> <p>The clerk, or teller, who was in the office of P. H. Benson & Co., testifies, that on the 26th of November, 1856, Mr. Dunlap came into the bank in the afternoon, and said he had a note there that was due, and that he wanted to take it up. Witness went to the pocket book, and took out the Haggerty note, it being the first one he came to, erased the name of Benson & Co., and delivered it to Dunlap, taking from Dunlap his check for $500, neither Dunlap nor the witness taking any particular notice of the fact, that the note actually delivered was not then due.</p> <p>The teller of the bank erased the name of “ P. H. Benson & Co.,” which was indorsed on the back, and then delivered it, with the indorsement so erased, to Dunlap, who took the note away with him. The makers filed away the note, and kept the same in their possession for fifteen months thereafter, when, in March, 1858, this note was found in the hands of the makers, as paid and canceled, was delivered by Dunlap to Benson, who, without the knowledge or consent of the makers, delivered the note to Haggerty.</p> <p>The plaintiff’s proof further shows, intermediate the time of payment, Nov. 26, 1856, and the taking of said note from the possession of Dunlap, in March, 1858, Benson, the payee of the note, who had received the payment thereon, had failed, also Dunlap and Colburn, who were the principal original debtors on said note, had failed.</p>

<p>The facts of this case and the proceedings in the court below, are stated in the opinion.</p>

This was an action of trover, brought by Freeman against Perkins, to the Cook Circuit Court. The declaration contains one count only, in the usual form in trover, describing a quantity of millinery goods and some few articles of other merchandise. The defendant Perkins plead not guilty. The case was tried before the court and a jury; the verdict was for plaintiff below, assessing his damages at three hundred and ninety-five dollars.

This was a scire facias on a recognizance entered into by Daniel J. Groendyke as principal, and Henry A. Mix and Albert Woodcock as sureties, conditioned that Groendyke should appear at the next term of Ogle Circuit Court, to answer an indictment for larceny.

At the February term, eighteen hundred and sixty-one, of the Superior Court, the said City of Chicago being plaintiff, The First Methodist'Episcopal Church of Chicago and the trustees thereof, by… Held: and belonging to said corporation first above named. Section 2.

This was an action of replevin, brought by the appellee against the appellant in the Kane Circuit Court, for wrongfully taking and detaining one span of horses.

This suit was commenced by defendant in error against the plaintiff in error, in assumpsit, upon a promissory note signed by the plaintiff in error, and Charles G. Scott, and tried at the May term, A. D. 1860, of the Kane Circuit Court, I. G. Wilson, Judge, presiding, and a jury. The note was joint and several.

This was an action to recover from appellant a bill of goods, which it was claimed had been sold to his brother in pursuance of his authority. The general issue was pleaded. The court found against appellant, and gave judgment for $180.43.

On the 30th of September, A. D. 1852, the plaintiff contracted to sell the defendants the north-east quarter of Section twenty-nine (29) in Township twelve (12) north, Range eight east, in Marshall county, Illinois, and to make a quit-claim deed for the same, upon the payment of the sum of two hundred dollars, as follows: fifty dollars on January 1st, 1853, and fifty dollars on the first day of January, A.D. 1854,1855 and 1856, with interest.

At the November term of the Lee Circuit Court, A. D. 1860, before Eustace, Judge, an indictment was found against the plaintiff in error, for… Held: with intent, her, the said Emily Ann Bennett, with the axe and butcher knife, aforesaid, then and there feloniously, willfully and of his malice aforethought, then and there to kill and murder; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people and State of…

The facts are generally stated in.the case as formerly reported in volume 23, page 197. The following facts were 1 shown on the second trial, by the agent of the company : After the messenger arrived that day, I checked in his run, by comparing his packages with the waybills, to see if they were correct. After checking in the run, packages that I knew could be delivered were entered on the delivery book. This package to Baldwin was not so entered.

This is a cause in chancery on bill exhibited by appellants against appellees, for the purpose of redeeming two certain mortgages made by one Josiah E. McClure to Elijah K. Hubbard.

This is an action of ejectment, commenced by Kersey H. Fell, against William Cessford, on the third day of February, 1860, in the McLean Circuit Court, to recover possession of lot eight in block eight, in Allin, Gridlev and Priekett’s Addition to Bloomington. In January, 1861, the cause came on for trial, and was by agreement tried by the court without the intervention of a jury.

The petition for dower of the plaintiff in error sets forth: That petitioner married Jeddiah Woolley, Jr., January 30, 1832. That said Woolley, Jr., died February 4, 1857.

This was a motion by plaintiff in error, founded upon affidavits asking for an attachment of the bodies of certain parties, who had taken violent possession of certain premises in litigation in this suit. It appears, that an injunction had been obtained in the court below, restraining the defendants in error from taking possession of the premises.

Klepper preseúted his petition to the court, founded upon his own affidavit, setting forth, that he had been committed to the Adams county jail, on a charge of murder, and that bail had been refused him.

The death of the plaintiff in error was suggested, and his administrator was substituted as the party to the record. A motion was thereupon made for a rule, that the defendant should join in error.