Volume 27 — Illinois Reports

This was an appeal from a judgment of a justice of the peace in Clay county, rendered against the railroad company on the 16th of April, 1869. Summons was issued, and the return of the constable thereon showed that the process was served on “ Charles Weir, Station Agent of the Ohio and Mississippi Railroad Company at Xenia,” etc. At the October term of the Circuit Court of Clay county, the defendant below filed a plea in abatement, and moved to dismiss the cause.

The plaintiffs in error filed the two notes sued on in this case, in the County Court of Monroe county, for allowance in the case of the decedent. The County Court refused to allow the claim.

The plaintiff in error, who was complainant in the court below, filed his bill in the Circuit Court of Washington county against defendants in error, in the court below, alleging that at the September term, 1860, of the Washington Circuit Court, defendant, Daniel R. Spencer, recovered three judgments, by default, against plaintiff' and others, to wit: one judgment for $276.77 and costs, against plaintiff and defendant, William M. Logan; one other judgment against plaintiff…

This was an action of trespass by Goelitz againt Moore for assault and battery, tried at the Monroe Circuit Court. Pleas of the general issue and son assault demesne were filed, and issue joined. At the October term, 1859, judgment was rendered in favor of Goelitz for $600 and costs. The case is brought here by writ of error.

At the July special term of Marion Circuit Court, 1861, the plaintiff, Andrew J. Bromley, was indicted with Dempsey Abels and Smith Sullivan for larceny, in stealing one shoulder of bacon, of the value of two dollars, one ham of bacon, of the value of two dollars and fifty cents, and eight sides of bacon, of the value of three dollars each, the property of John Wood. The indictment was in proper form, and the plaintiff was tried separately before Bryan, Judge, and a jury.

This was a suit in chancery, brought in the Monroe Circuit Court, at the May term thereof, 1861, by Mathias Kiser, who sued for the use of Noah B. Harlow, against Nicholas Kiser and William Winkelman, to foreclose a mortgage, made by Nicholas Kiser to Mathias Kiser, dated September 7th, 1858, to secure to said Mathias Kiser the payment of a certain promissory note of that date. Said mortgage conveyed certain town lots in the town of Harrisonville in said county.

The bill in this cause, filed in Marion Circuit Court, for review and general relief, states that the complainant Bracken is a non-resident.

This was an action of debt brought by plaintiffs against defendants in the Wayne Circuit Court, on the official bond of defendant Organ, as collector of Wayne county for the year 1859. The venue was subsequently changed to Clay county. The declaration is in the usual form against Organ as principal, and the other defendants as his securities, and alleges the non-payment of certain moneys belonging to the school fund.

This was an action brought before a justice of the peace in Clay county, and taken by appeal to the Circuit Court, where a judgment was obtained by Meisenheimer against the railroad company for eighty dollars, the value of a horse killed at a road crossing. There was entire absence of proof, in reference to the time when the railroad was opened for use.

The record in this case shows that an action of assumpsit was brought in the Jackson Circuit Court, at May term, 1860, by the appellees against the appellants. The declaration counts first upon a promissory note for $886.55, with the usual money counts added.

Robert Dixon, Junior, the plaintiff in the court below, and defendant in error, at the April term of the Perry Circuit Court, 1860, filed his petition in the Circuit Court of Perry county, setting forth that he was the husband of Margaret Jane Elizabeth Holliday, eldest daughter of Matthew Holliday deceased, and that on the 2nd December, 1848, said Holliday, being seized in fee of the following described real estate, viz., east half north-west quarter section 21, town 4…

The plaintiffs in error commenced a suit before a justice of the peace in Perry county, on an account under $100 against the defendant in error and Richard Brown, which account was for goods sold by the plaintiffs to the said Cross and Brown as partners.

The appellant, who was an attorney at law, and Minerva Merrill, the widow of the decedent, took out letters of administration on the estate of E. C. Merrill, deceased. They subsequently resigned, and the appellee was appointed administrator de bonis non. The appellant presented an account for $218, against the estate, nearly all of which was for legal services rendered by him, while administrator, in cases in which the estate was interested as plaintiff or defendant.

This was an appeal from a justice of the peace, tried in the Monroe Circuit Court, at the May term thereof, 1861. The suit was upon a constable’s bond against Scheuermann and the others as his securities. The case was tried by the court by consent, and judgment was rendered for plaintiffs below for the sum of one thousand dollars debt, and forty-three dollars and fifty-five cents damages, to be satisfied upon the payment of said damages and costs.

This was an action on the case against the Ohio and Mississippi Railroad Company, to recover the value of certain horses killed on the road of the company. The declaration contained four counts inartificially drawn. There was a plea of the general issue, and a recovery by the plaintiff below. The cause was tried before Kitchell, Judge, and a jury, at October term, 1860, of the Clay Circuit Court.

This was an action of ejectment, in the Monroe Circuit Court, to recover certain land lying in that county. The plaintiff in error filed Ms declaration,, with the usual notice, on the 12th day of April, 1858, and also a bond for costs in the usual form. On the same day plaintiff moved for a rule on defendant to plead in twenty days, and defendant entered a cross-motion to dismiss said suit for want of a bond for costs.

Wallace was indicted for forgery in the Monroe Circuit Court, at May term, 1861.

<p>APPEAL FROM PERRY.</p> <p>The giving of a note and mortgage by one of two copartners in settlement of a joint debt, does not discharge an account against the firm, unless they were received in satisfaction of it.</p> <p>If a note is given not under seal, by one of several parties, it will not satisfy .the account, unless the parties so intended ; and a recovery may be had upon the account, if the note is surrendered. A recovery cannot be had on the account if the note is still held by the creditor.</p> <p>A custom on the part of a creditor to charge, interest on an account past due, will not authorize its recovery, unless the debtor was informed of the custom.</p>

Williams filed his declaration in case, against the Illinois Central Railroad Company, in the Perry Circuit Court, to recover damages for the loss of a cow, killed on the road of the company in July, A. D. 1856.

The Ohio and Mississippi Railroad Company filed with the clerk of Lawrence county, Illinois, its schedule of property, with valuation, for the year 1859. At.the December term, 1859, of the board of supervisors for that county, the board, regarding the valuation of the company as too low, increased, by more than double, the valuation, and so notified the company. The company applied for a hearing and a reduction, at a meeting of the board granted for the purpose.

Zarda Frost, the appellee, who was the plaintiff in the court below, brought his action of trover against the appelpellant, who was defendant in the court below, for the recovery of the value of a horse, to which action the defendant in the court below filed his plea of not guilty. The cause was tried at the April term, 1860, of Perry Circuit Court, by a jury, Jenkins, Judge, presiding.

This was an action commenced by appellee against appellant to recover the value of three animals, alleged to have been killed, upon the road of appellant. The action was commenced before a justice of the peace, and taken by appeal to the Circuit Court of Jackson county, where it was heard before Jenkins, Judge, without the intervention of a jury, the court finding against the corporation, and rendering a judgment against it for forty-eight dollars and costs.

This bill, which was for general relief and for an injunction, states that White was the owner of lot No. 3, of block 2, Cunningham’s Addition to Salem, Marion county, Illinois; that he sold said lot to Anderson, on the 11th of November, 1858, and conveyed it by warranty deed.

All the facts of this case are fully set out in the opinion oí the Court by Mr. Justice Breese. The case was originally commenced in the Second Grand Division, but by consent, was finally heard and determined at Mount Vernon in the First Grand Division.

This was a suit brought by Phelps, in the Circuit Court of Mason county, against the Ætna Insurance Company, upon a fire policy issued by said company. The declaration contains four special counts. The first upon the policy according to its alleged legal effect.

This was a prosecution by the People against the town of Paris for keeping and maintaining a nuisance.

<p>The opinion of the Court contains a full statement of the case.</p>

Plaintiff filed his declaration in ejectment, against Henry R. Richardson, for the recovery of the undivided half of the east twenty feet of lot No. 7, in block No. 10, in the city of Springfield. The defendant plead the general issue, and Roll was substituted in his stead, and possession of premises was by him admitted.

Plaintiff filed a bill in Mason Circuit Court, May, 1856, to enjoin Tomlin and Hillyard from ejecting plaintiff from land described in bill, and for specific performance of an oral contract.

This was an action of ejectment, commenced by Ross at the May term of the Mason Circuit Court, A. D. 1856, for the recovery of town lot No. 4, in block No. 19, in the town of Havana, in said county. At the October term, 1861, the cause was tried before Harriot, Judge, and a jury, and on the trial of the cause the plaintiff offered and read in evidence, 1.

This was a suit instituted by appellees against appellant, at the February term, A. D. 1861, of the Bond County Court, in assumpsit, for work and labor, care and diligence and attention, performed by John E. Mullett, deceased, in his lifetime. Declaration, one common count. Appellant pleaded the general issue, and statute of limitations. Verdict for appellees for $245.

This was an action of assumpsit, brought by Andrew B. Fonts against John A. Metcalf. The declaration contains only the common counts. The one relied on in the trial below, was the count for money had and received. To the declaration the defendant pleaded the general issue. A jury was waived, and the cause tried by the court, who rendered judgment in favor of the plaintiff for the sum of $321.35, from which the defendant below prayed an appeal to this court, which was granted.

This was an action of assumpsit on an account for lumber. The first item in the account is in the following words : “ 1856, Jan. 25th. To amount per P. Warren, $68.59.” Then an account for lumber, amounting to $361.24, running from April 19, 1856, to September 2,1858. The defendant pleaded the general issue.

This was a bill in chancery for a partition of lands, filed by the defendant in error in the Circuit Court of Sangamon county. The opinion of the Court contains a full statement of all the points arising in the case.

“ Ordered by the court, that all the property mentioned in the appraisement bill and inventory of said administrator, be forthwith delivered up by said administrator to Michael Koch, guardian, for the use of his wards, children and heirs at law of Leonard, deceased.” It is hereby agreed by the attorneys on both sides of this case, that the foregoing is a correct transcript and order of the St. Clair County Court, and that the said St. Clair Circuit Court affirmed the same on…

Plaintiff in error filed his declaration against Mayer and Wright in trespass for carrying away certain articles of chinaware and crockery, and other merchandise, fully described therein. Wright filed his plea of general issue.

<p>This was a suit originally brought by Campbell against Leitch, on an account, before a justice of the peace, who rendered a judgment in behalf of the defendant below for costs, from which judgment Campbell appealed to the Circuit Court.</p> <p>On trial being had in the Circuit Court, resulting in favor of plaintiff, and a new trial awarded, the case was afterwards, by an agreement made an order of court, referred to three arbitrators, viz.: Michael O’Hair, C. B. McAnnally, and S. H. Elliott, who awarded that Leitch should pay to Campbell the sum of §31.24 and all costs.</p> <p>Upon the filing of said award, the defendant excepted to the same for the following reasons: the arbitrators made a mistake in making their award, as to the amount found to be due from the defendant to the plaintiff; and the arbitrators, in making their award, allowed the plaintiff for a greater number of bushels of corn than was claimed by the plaintiff’ in his account filed in the case.</p> <p>The defendant introduced Silas H. Elliott as a witness, who testified that he was one of the arbitrators to whom this case was submitted, and who joined in making the award; that he heard the evidence in the case when tried before the arbitrators; that in making their award, they found that the plaintiff had delivered the defendant about two hundred and sixteen bushels of corn, or nine loads, of twenty-four bushels to each load, at thirty-three and one-third cents per bushel, and they allowed the defendant a credit of forty dollars, which was proved or admitted before the arbitrators to have been paid by the defendant to the plaintiff; that the evidence as to the amount of corn which was delivered by the plaintiff to the defendant varied, some witnesses stating that there were eight wagon loads delivered, and some nine, and the quantity of bushels to the load being variously estimated at eighteen, twenty and twenty-four bushels. The witness did not recollect that he saw any account on the trial before the arbitrators, and did not think any of the papers in the case were shown to the arbitrators.</p> <p>Sheridan P. Read, another witness then introduced by defendant, testified that he had been counsel for defendant, Leitch, in this case from its commencement; that the account which is now filed with the papers was the only account which had ever been filed in the case, so far as he knew, which account, then shown to the court, is in the following words and figures:</p> <p>“Abner Leitch,</p> <p>March, 1857, 160 Bu. Corn, SSie Bo’t of Edmon Campbell, ......................$53.33.”</p> <p>Witness further testified that the account is in the handwriting of Charles Summers, who was the plaintiff’s counsel when the suit was first brought before the magistrate, and thinks that it is the original account filed in the case.. At the time of the trial before the arbitrators, the papers in the case were there, and witness thinks he had them open,, and, as be left the room before the trial was concluded, he laid them on the table near which the arbitrators were sitting, but does not know whether their attention was called to them or not.</p> <p>The court overruled the defendant’s exceptions to the award, and rendered judgment on the same, for the sum of $31.24 and all the costs; the defendant then and there excepting to the decision of the court in overruling said exceptions to the award and rendering said judgment.</p> <p>The defendant assigns for error, the overruling by the court below of the exceptions to the award, and the judgment of the court below upon said award.</p>

This was a common law certiorari, brought by the commissioners of highways of the town of Sonora, Hancock county, in the Hancock Circuit Court, to review and reverse a decision of the supervisors of the towns of Carthage, Prairie and Montebello, on appeal of said Black, Gardner and Darby, reversing a decision of the plaintiff, in laying out a highway in said town of Sonora.

This was a bill in chancery to foreclose a mortgage filed by the defendants in error against the plaintiffs in error, in the Circuit Court of Macon county. The opinion of the Court contains a full statement of the case.

The plaintiff in error moved the Sangamon Circuit Court for a rule upon the defendant in error, who was the sheriff of Logan county, to return an execution in his hands, in favor of the plaintiff in error and against one Thomas G-. Taylor— which rule being granted, and the execution returned, indorsed, “ satisfied in full,” a motion was entered at the same term, for a rule upon the sheriff to bring into court the money made on the execution.

In July, 1859, a bill for injunction was filed by Trimble and Linder against Smith, charging that on the 1st day of January, 1857, they were indebted to Smith about two thousand dollars, being balance of purchase money for lands purchased by them of Smith, for which they gave their notes to Smith for about one thousand dollars each.

This was an application by an administrator to sell real estate to pay debts. There does not appear, from the record, to have been any petition filed in the case. The first entry upon the record was made at the October term, A. D. 1843, of the Coles Circuit Court, on the 23rd day of October, and is as follows : John Vandyke, Adm’r of Simon fiobertson, dec’d. ) T Petition to sell real estate. \ 1“ Chancery.

This was a motion by the defendant in error to the Circuit Court of Hancock county, Sibley, Judge, presiding, for judgment upon an award of arbitrators. The court allowed the motion, and entered judgment on the award against the plaintiff in error, who brings the cause to this court. The opinion of the Court contains a full statement of the case.

Plaintiff filed his note, payable to himself, signed by Mathias Yokum, for $1,485.40, with ten per cent, per annum from July 1st, 1854, in the court of probate in and for the county of Menard and State of Illinois, for adjustment, with a credit thereon, June 5,1855, of $900.

This was an action of debt, commenced by Gardner and tried in his lifetime, against Kerney, for the September term, 1859, of the Fulton Circuit Court, on a promissory note. The declaration contains one special count and common counts for work and labor, for money paid, laid out, etc., and on account stated.

On the 24th of May, 1854, Casselberry leased from William Forquer certain land in St. Clair county, for three years, for $150 a year, one-half payable semi-annually on the 25th of December and March ensuing.

This was an agreed case, showing that suit was instituted upon the office bond of Lewis W. Leick, master in chancery of Greene county, against Anthony S. Seely, one of the securities thereon, in the name of the People, who sue for the use of Alfred W. Neece, guardian' of Jesse H. Neece and Pemnah Jane Neece. Said bond is payable to the People of the State of Illinois, and conditioned for the faithful discharge of the duties of the office of master in chancery.

This was action of debt, brought by Knoebel, executor, etc., upon a promissory note under seal, made by Schuchmann, dated February 24, 1858, for $2,200, payable to Wm.

The plaintiff below sued the defendant for the alleged killing of a cow by the trains of defendant. The cause came before the Circuit Court of Richland county, Kitchell, Judge, presiding, by appeal from a judgment rendered by a justice of the peace. A verdict was recovered in the Circuit Court for the sum of $20. The plaintiff sought to sustain his action upon the statute requiring railroads to fence the lines of their roads.

This was an action of assumpsit brought by the appellee against the appellant, to the September term of the Macoupin Circuit Court, for 1859, upon a promissory note made by one S. D. Martin to said Robinson, bearing date August 26, 1857, due three months after date, for one hundred and forty-two dollars and forty-four cents, and drawing ten per cent, interest per annum after maturity, and by said Robinson indorsed in blank.

This was an action for subscription to the capital stock of plaintiff’s corporation, on the part of the defendants, as partners. The third count of the declaration was a general count upon the subscription, alleging that the defendants, on the first day of January, 1860, were indebted to the plaintiff in the sum of $500 for moneys due and owing on account of five shares of stock held by them in said corporation, and by virtue of divers calls made thereon before that time.

This was an action of assumpsit, to recover for the use of a farm, in the St. Clair Circuit Court. There was a trial, and a judgment against Pulliam for twenty dollars. The plaintiff below, Ogle, was the aunt of defendant.

This is a proceeding by defendants in error, against the plaintiffs in error by sci. fa., upon a forfeited recognizance. The sci. fa. alleges that the defendant, Raysor, was, on the 14th day of February, 1859, before Wm. L. Hammer, a justice of the peace, on a charge of perjury, and by said justice was held to bail in the sum of fifteen hundred dollars, and in default thereof was committed to jail.

Leonidas Chapin, complainant below, filed his bill to enforce a mechanics’ lien against Lewis Roach and Leroy F. Staples, setting forth, that on the 20th day of March, A. D. 1861, and at sundry other times, as shown by a bill of particulars filed therewith as an exhibit, he furnished said Roach and Staples, at their special instance and request, lumber for erecting a building on lots 10,11 and 12, in block 76, in Noyes’ Addition to the town of Mattoon, with an implied…

This is an action of trespass on the case brought by defendant in error, Helm, as plaintiff below, against the plaintiff in error, as defendant below,, to the November term, 1861, of the Macon Circuit Court. The declaration filed by defendant in error, contains but one count.

This was an action of assumpsit. The declaration contains the common counts, and two special counts on the following notes; the first as follows: “ §600. August 21, 1866. For value received, we jointly and severally promise to pay L. Wilson, or order, five hundred dollars, on or before the first day of June next. HENRY A. HUNT, . GEORGE WOOD.” The other for $530, payable J une 1st, 1858, and the same as the above in all other respects.

This was a bill in chancery, filed by the plaintiff in error an the Edgar Circuit Court, against the defendant, William C. Walker, to restrain and enjoin him from obstructing a -certain passway leading to a grist mill of which the plaintiff was .a part owner. The bill sets out a deed from the defendant and wife, and one Dudley McClain and wife, to plaintiff, conveying to plaintiff a passway over their lands, as then located.

Proceedings were commenced before a justice of the peace, and taken by appeal to the Circuit Court. Trial in Circuit Court, and verdict for §40. Motion for a new trial overruled. The plaintiff below introduced the following testimony: Jerry Taylor, being sworn, said: I sold the colt to plaintiff. It was wounded in August. It was near Pierce’s farm—no town, city, or village there. I sold it for $25. I fix the value at $50. There was no fence there.

This bill was filed by defendant in error, December 31, 1852, and sets forth that Edward Norton, on the 14th day of April, 1842, recovered a judgment in the St. Clair Circuit Court, against James Duncan, since deceased, and Rescarick Ayres, for $2;000.

The plaintiffs filed their bill on the 2nd July, 1858, for settlement of the estate of the deceased, making E. Lott surviving administrator of P. Jarboe, the administrator and administratrix of H. M. Jarboe, deceased, who was the other administrator of P. Jarboe, deceased—Job Collins, surety on first administration bond, A. S. Seely, surety on second administration bond, and F. P. Tedder, surety on third administration bond, defendants, stating that P. Jarboe died intestate…

On 17th October, 1861, Parker sued Watts in assumpsit, in the Brown Circuit Court. The declaration is upon a promissory note for $650, dated Mount Sterling, June 1st, 1860, due fifteen months after date, payable to Sidney Parker, with six per cent, interest from September 1,1860, and ten per cent, after maturity if not paid when due. The declaration is in the usual form, with two special counts and.the money counts.

On the 17th of April, 1860, complainant filed his bill in chancery in the clerk’s office of the Edgar Circuit Court, Harlan, Judge, presiding, to settle a partnership in regard to the construction and completion of two school-houses ; alleging that complainant’ and defendant were equal partners in the construction and completion of said houses, which were completed in pursuance of the contract with the directors of districts four and five, in townships thirteen and fourteen…

This opinion is upon a petition for a rehearing. The former opinion will be found in the case as reported at page-414 of volume twenty-three of these Reports. 4 //

This was an action of assumpsit, commenced in the Sangamon Circuit Court, Rice, Judge, presiding, at the June special term, by Thomas L. Nock, assignee of C. D. Loveland, the payee, on the following promissory note: “ Six months afterdate, we promise to pay to the order of C. D. Loveland, one hundred and twenty-five dollars at Havana, Ill.

The facts, as shown in this case, are similar to those reported in volume twenty-three of these Reports, page 456, between the same parties; except that in this case, the plaintiffs in error offered, on the hearing, this additional proof, viz.: Edward McMillan, Wm. D. Sanders, Wm.

Lucius Stebbins, one of the plaintiffs in error, was indicted in Pike county, and upon his petition the Circuit Court of Pike county granted a change of venue to Adams county, and took the recognizance of the plaintiffs in error for the prisoner’s appearance in the Circuit Court of Adams county. The Adams Circuit Court entered a default and order of forfeiture on the recognizance as to both, and a judgment was taken against Lucius Stebbins.

This was a petition for mandamus in the name of the People of the State of Illinois, on relation of George W. Roberts, against George W. Rives, clerk of the Edgar County Court, filed at the May term, 1861, of the Circuit Court of said county.

This was a bill by William B. Arnett, to set aside an alleged nuncupative will of Nathan Arnett, filed in the Circuit Court of Clinton county. Hannah Arnett and Nancy J. Sanders answered, alleging validity of will. Trial by the court on feigned issue at law informally submitted. The evidence consisted solely of two certified copies of the record, and proof of said alleged will in the County Court of Clinton county, which evidence is set out in the opinion of the Court.

This was a bill to foreclose a mortgage, filed in the Circuit Court of Hancock county, by Benjamin Clark against the plaintiffs in error. A change of venue was taken to McDonough county. The defendants filed a cross-bill setting up a homestead exemption. The opinion of the Court gives a statement of all the points considered by the court.

At the October term of the Schuyler Circuit Court, appellant commenced an action of assumpsit against appellee, on a promissory note payable to James G. McCreery, treasurer of the Rock Island and Alton Railroad Company, the declaration containing special and common counts.

This was an action on the case, brought by McConnell in the Circuit Court of Morgan county, based upon the following facts: In 1850, the heirs of Gov. Duncan, deceased, were the owners of a lot in Jacksonville, upon part of which was built a.large brick building, called the Morgan House, afterwards and now called the Mansion House, which building was and is three stories high, fronting south on the public square of said town, and running back north.

This is a bill filed December 22, 1859, requiring defendant to account to complainants, as heirs of Eleanor Clarke, deceased, for moneys received from said Eleanor; and also to account to them as their agent, for moneys received from the sale of lands of William A. Clarke, deceased.

<p>ERROR TO MORGAN.</p> <p>See the preceding case for a statement of this. These cases are brought to this court upon the same decree pronounced in the Circuit Court, but by the different parties.</p>

<p>APPEAL PROM EDGAR.</p> <p>It is not due diligence for the assignee of a note to delay issuing an execution against the maker of the note, for more than two months after obtaining hia judgment—and without showing some excuse for such delay, he cannot hold the assignor.</p> <p>An averment that a sheriff’s return was signed, is unnecessary; this will be presumed.</p> <p>In an action upon a promissory note, by the assignee against the assignor, the defendant filed a demurrer to the declaration, which was overruled, and he elected to stand by it. It was competent for the clerk to assess the damages.</p> <p>It is error to award the plaintiff greater damages than he claims in his declaration.</p>

This was an action of trespass, brought to the October term of the McDonough Circuit Court, 1856, for the taking of a horse, the property of Albert Houston. Since the commencement of the suit, both parties have departed this life.

June 22, 1858, plaintiff in error filed his bill in chancery in the Morgan Circuit Court, alleging, that in August, 1840, Harry Reinback and Edward S. Hinrichsen, formed a partnership, under the style and firm of Hinrichsen & Rein-back, and under said firm, did business at Franklin, in said county, till about the first day of January, 1851.

This was an action brought by the defendant in error, against the plaintiffs in error, in the Circuit Court of Mason county. Judgment was given for the plaintiff below for the whole amount claimed, the defense of usury having been specially pleaded. The defendant brings the case to this court, by writ of error. The opinion of this Court states the case fully.

<p>APPEAL FROM CRAWFORD.</p> <p>In an action upon a bond, judgment should be so entered, that the whole may be satisfied, upon the payment of the damages.</p> <p>It is the duty of the clerk of the Circuit Court to make a full transcript of all of the record. This court is not permitted to act upon his statements, given in the transcript, that papers were filed or withdrawn.</p> <p>If three defendants demur, and, after the demurrer is withdrawn, two of them plead, a judgment nil dicit should be entered against the party not pleading, and the jury should assess the damages against all. If but two plead, and the other abided by his demurrer, he could not be regarded as going to trial with the others.</p>

This was an action, commenced by the plaintiff in error against the defendant in error, in the Circuit Court of Hancock county. The declaration counts on divers interest coupons; plea, general issue. Trial by the court, Sibley, Judge, presiding, and judgment for defendant.

On the 27th day of August, 1855, Billingsby Bowen filed his bill in chancery in the Circuit Court of Pike county, charging that about the year 1850, the complainant and David D. Hull entered into a parol contract, whereby, for the consideration of one hundred and fifty dollars, the said Hull agreed to sell and convey to complainant the east half of the south-east quarter of section twenty-one, township four south, range seven west of the fourth principal meridian; that said…

This was an action of assumpsit, commenced for the June term, 1859, of the Fulton Circuit Court, on the following instrument, viz.: “ On the second day of June, A. D. 1866, 1 promise to pay to John Bless or order, one hundred dollars, for value received, provided the Peoria and Hannibal Railroad shall not be completed between Farmington and Lewistown, Fulton Co., Ill., by the 1st day of June, 1866, so far as the tieing and laying of the rails of said road are concerned.

This was an action of assumpsit, brought by Thomas Morgan, plaintiff, in the Circuit Court of Scott county, at the December special term, 1858, on a promissory note, dated St. Louis, April 28, 1857, for $18,000—made by the defendants, payable to the order of one Wm. T. Hazzard, in four months after date, and by him assigned to said plaintiff. Process served on Francis Keys only, and by consent tried before Woodson, Judge, without a jury.

This was an application made to the Circuit Court of Adams county, by the plaintiff in error, for the appointment of commissioners to assess the value of lasting improvements made by him upon land which the defendant in error had recovered of him in ejectment. The court overruled the motion, to which the plaintiff in error excepted, and has brought the ease to this court. The ejectment suit between these parties was tried at the January term, 1860, of this court.

This is an action on the case, commenced at the April term, 1857, of the Circuit Court of Edgar county, by George Ball against James E. Bruce, for the seduction of one Eliza Alsup. At the September term following, there was a demurrer filed and sustained to the declaration. The case was brought to this court, and the decision of the court below reversed, and the case remanded; and at the October term, 1859, the defendant filed his pleas, and the issues were made up.

July 20, 1859, complainant filed his bill in the Morgan Circuit Court, alleging, that on March 24, 1862, complainant, Harry Reinback and Hiram Van Winkle were partners, as merchants, at Franklin, Illinois, under the name of Reinback & Van Winkle, complainant being only silent partner, and not taking active part in the business.

This was an action of assumpsit, instituted in the Randolph Circuit Court, against Henry Bilderback and Harvey Bilderback, by Albert H. Burlingame, the assignee of Wm. B. Goddard, returnable to the September term, 1860. The return being “ defendants not found,” an alias writ was issued to the same defendants, returnable to the April term, 1861. It was returned served “by reading to Harvey Bilderback.” . The declaration was filed at the September term, 1860.

This was an'action of trespass, quare clausum fregit, brought by defendants in error against plaintiffs in error, in the Circuit Court of Pike county. Defendants below filed several pleas justifying the alleged trespasses, upon the ground that the close in question was a public highway, and that the trespasses complained of consisted in the removal of a fence which was across, and obstructed the highway, doing no more damage than was necessary.

Appellants filed their hill against appellee, alleging, that on 1st September, 1853, they entered into a written agreement with John Fincher, by which he agreed to deliver and saw for complainants a large quantity of cross-ties and lumber, and was furnished by them and put in possession of a circular saw-mill of about the value of $2,000, to be surrendered by Fincher at the completion of said contract, in the same condition, to said complainants, for the surrender of which…

Complainant filed his bill in the Circuit Court of Morgan county, stating that, 3rd June, 1854, he executed a deed to defendant, conveying certain lands, reserving vendor’s lien to secure certain notes for purchase money, to bear ten per cent, interest, if not paid at maturity—one for $3,900, to mature 1st September, 1854, and the other for $3,900, to mature 1st January, 1856—specifying that his wife was lunatic, and not capable of releasing tier dower, and that $2,600 of…

In the Circuit Court of Menard county, Simonds sued out an attachment against Wm. H. Elliott, and took process of garnishment against A. A. Rankin and L. M. Green. Judgment by default was rendered against Elliott for the sum of $1,121.13. Interrogatories were then propounded to the garnishees, Rankin and Green, and answers given by Rankin, as follows : Are you acquainted with the plaintiff and the defendant in. the above suit? If so, when, where, and how long?

The action in this case was by attachment, in. favor of Wm. L. Anderson against Robert J. Hayes. The original writ was served on Cariker as garnishee, and the following is a copy of the return by the sheriff: “ Served on the within named Aaron Cariker, by reading the within, May 6, 1857.” Signed by the sheriff. Judgment by default was rendered against Hayes at March term, 1858, of the Circuit Court of Montgomery county; assessment by jury, and judgment for $265.25.

This was a suit in chancery, filed in the Sangamon Circuit Court, for the settlement of a partnership business founded upon the following agreement: “ Memorandum of an agreement, made this 1st day of March, 1853, between Silas W. Robbins, of the first part, and Thomas Laswell, of the second part: Witnesseth, that the said Robbins, party of the first part, has this day advanced to said Laswell, party of the second part, two hundred and fifty-four dollars, to buy young cattle,…

This record is brought to this court on appeal from the Edgar Circuit Court, and presents the following facts: On the 23rd day of March, 1858, Thomas J. Buntain and David S. Curtis, the parties to this proceeding, entered, under their hands and seals, into an agreement of submission to arbitration of certain unsettled accounts, and matters of trade between them, concerning the business transactions of the firm of Buntain & Curtis, and also of the firm of Curtis, Buntain &…

This was an action of debt instituted in the Coles Circuit Court, Harlan, Judge, presiding, on a record and proceedings and judgment had and rendered, in the Law Commissioner’s Court of St. Louis county, State of Missouri. A declaration was filed in debt.

This is an action of assumpsit, first brought by Haskins against Marckle, before a justice of the peace, who rendered a judgment for the defendant, Marckle, the present plaintiff in error. From this judgment, Haskins, the plaintiff below, took an appeal to the Circuit Court. In that court the case, by consent of the parties, was tried by the judge, without the intervention of a jury, who gave a judgment for the plaintiff in the original action for seventy-five dollars.

On the eighth of November, 1859, William Salisbury was elected constable of said county, and afterwards, as principal, with appellants as sureties, executed an official bond to the justices of said county, naming them and their successors in office, to the use of the People of the State of Illinois, for, etc., conditioned as the law requires.

In June, 1860, appellee and appellants each shipped a lot of cattle to the city of New York for sale. On reaching the city, they separately employed to sell their respective lots of cattle, a cattle broker by the name of Wm. Florence.

This was an action of ejectment by plaintiffs in error, against defendant in error; plaintiffs claiming the south-west quarter of the south-west quarter of Section 35, Town 17 north, Range 2 east of the third principal meridian, in Macon county, in fee simple. Plea of general issue filed. Trial by court, at July term, 1861, Emeesoií, Judge, presiding. Judgment for defendant for costs on thirteenth day of said term.

Appellees declared in ejectment for two lots in Franklin, in the county of Morgan. Defendant pleaded not guilty. Trial by court by consent, and judgment for one lot and part of the other, in behalf of the appellees. Bill of exceptions shows, that appellees, on trial below, produced and proved judgment of said court, fieri facias on-same, sheriff’s sale and deed for the premises sued for. Possession of premises admitted by appellant, and appellees rested.

This suit was commenced by bill in chancery in the Circuit Court of Moultrie county, at the October term, 1858, by George Waggoner, as conservator of the estate of Elisha Waggoner, for the purpose of setting aside a conveyance of real estate made by said Elisha Waggoner to the appellant, Lilly, in the year 1851, upon the ground that said Elisha was insane at the time of selling and conveying the property.

<p>ERROR TO MASON.</p> <p>Oyer cannot be craved of an instrument not under seal, of which profert is not made. If such an instrument is to be examined by this court, it should be presented by bill of exceptions, demurrer to evidence, by an agreed case, or by a special verdict.</p> <p>A note given to a county, is properly assigned, by the clerk of the County Court under its seal.</p>

In September, 1858, appellee filed his bill in the Morgan Circuit Court, for the foreclosure of two mortgages on the west half of the north-east quarter of Section eighteen, in Township sixteen north, Range eleven west of the third principal meridian, situated in Morgan county, Illinois, executed by ¥m. R. Miller to appellee; one was executed on the 17th day of January, 1857, to secure two notes executed by said Wm.

This was a proceeding on the chancery side of the Edgar Circuit Court.

This case originated in a suit instituted before an acting justice of the peace in the county of Edgar, which resulted in a judgment in favor of said Bailey, and against the defendant Buntain, and was removed by Buntain into the Edgar Circuit Court, by appeal. At the October term, 1860, this cause was tried before Harlan, Judge, without the intervention of a jury.

This is an action on the case for words spoken. The declaration alleges four several conversations between defendant and divers persons, in each of which defendant uttered several distinct “ sets of words,” charged as slanderous to plaintiff, as follows : First conversation alleged: “ He (meaning plaintiff) stole my corn.” “ He (meaning plaintiff) and Smith Horton stole my corn.” “ He (meaning plaintiff) stole my hogs.” “ He (meaning plaintiff) stole my eggs and apples.” “He…

This was an action commenced by complaint, before the police justice of the town of Lewiston, Fulton county, Illinois, for the violation of an ordinance, by placing and continuing obstructions, in one of the streets of said town. The police justice rendered judgment against the defendant, Proctor, from which he appealed to the Circuit Court of Fulton county.

This was an action of assumpsit, commenced in the Circuit Court of Fulton county, at the June term, 1861, by Astoria Lodge No. 112, Independent Order of Odd Fellows, against William E. D. Marsh, on an account.

This case originated in the trial of right of property, before Malden Jones, Esq., the acting sheriff' of Coles county, in which Edwin Wright was claimant, and Joseph Grover, Lindle Madison, Benjamin 0. Shaw and James H. Conner, were plaintiffs in execution; which resulted in a verdict against the claimant, who removed the case into the Coles Circuit Court, by appeal. A trial of the cause was had by a jury, who returned a verdict against the claimant.

Tuts suit was commenced before a justice of the peace, to recover the value of a mule, which it was alleged had been killed by the appellant. The case was taken by appeal to the Circuit Court of Richland county, where there was a trial by jury, and a verdict and judgment for the appellee for eighty-one dollars, the value of a mule. The defendant below brings •the case to the Supreme Court by appeal. By agreement of parties, the case was heard in the Second Grand Division.

This was a suit in chancery, brought in the Scott Circuit Court, and based upon the following facts as set out in the bill: Holloway W. Vansyckle sold to Peter Learning two tracts of land, and took from him, Learning, several notes of hand payable at a future day. The title to one of the tracts was in Murray McConnel, and the title to the other was in said McConnel and David A. Smith, but all in trust for Vansyckle.

This case was heard in the Second Grand Division by agreement of parties. This was an action (begun in Richland, and the venue changed to Wabash,) for breach of covenant of warranty in the deed of Joseph H. Reed, (the ancestors of defendants), dated September 1; 1838, to S. and J. Abernathy, for in lot No. 43, in Mansfield, Ohio.

This was an action of replevin, brought by Lobly, who was plaintiff below, before a justice of the peace, and against Sid-well, to recover possession of one cow and calf, one steer and one heifer. Trial and verdict for defendant; appeal to Circuit Court; trial and verdict for plaintiff; motion for new trial, overruled. Case agreed to be heard in Second Grand Division.

This cause was tried at the April term, A. D. 1860, of the Calhoun Circuit Court, before Woodson, Judge, and a jury. The opinion of the Court, by Mr. Justice Breese, gives a full statement of the case.

This was a bill filed, in the-Circuit Court of Clark county, by Peter Bichnell, the defendant in error, against the plaintiff in error, and Amos Collins and William Collins, to foreclose a mortgage. The bill states the sale of the premises by complainant to the defendants, Perry Stephens and Amos Collins, and the execution of notes and a mortgage upon the same premises to secure the purchase money.

The opinion of the Court, by Mr. Justice Breese, gives a full statement, of the case. The cause was heard in the Second Grand Division, by agreement of parties.

On the 25th of April, 1860, the appellee filed his bill of complaint against appellant, in the Lawrence Circuit Court, alleging— That at the May term, 1843, at the Circuit Court of Lawrence county, the president, directors and company of the Bank of Illinois, recovered a judgment against appellant for $223, and costs of suit, upon which judgment execution was issued to the sheriff of Lawrence county, and by him returned without any levy or other service indorsed thereon.

This case was, by agreement, heard in the Second Grand Division. The appellants filed their bill in chancery in the Circuit Court of Madison county, as mortgagees of the Chicago, Alton and St. Louis Railroad, the rolling stock, etc., thereof.

<p>The opinion of the Court by Mr. Justice Breese, states the case fully.</p>

This bill alleges, that each of the complainants are owners of real estate and tax-payers in the limits of the town of St. Charles, and that the total amount of property assessed to them is $100,000, and is about one-fourth the taxable property of said township. That the joint property of complainants in said township, will be liable to an assessment for taxes for the year 1859, for about the said sum of $100,000, for state, county, and township taxes.

The declaration alleges, that Brady conveyed and warranted to Haskell, for consideration of $550, Lots 8, 9, and 10, in Block 3, Eastman’s Addition to Peoria. Haskell, for $300, conveyed Lot 8 to Spurck; and for $500, Lots 9 and 10 to Grow; and Grow, for $25, same to Spurck. Averments of breach of covenant, and eviction by paramount title. Further averments of mortgage from Brady to Eastman on said premises, and foreclosure for $287.42.

This was an action of ejectment, commenced by the plaintiffs in error, against the defendant in error, in the Warren Circuit Court, to recover possession of S. W. 17, 8 N., 3 W., on the 28th day of May, 1857. The cause was tried by Tyler, Judge, and the issue found for defendant, and judgment rendered against the plaintiffs for costs.

This was an action of trespass on the case, commenced by the appellee, Brown, against the appellant, Gorton, in the Circuit Court of Lake county, from which the venue was changed to Cook.

This was a suit in chancery to foreclose a mortgage. Bill filed December 12th, 1857, by George W. Phelps against John Timmerman, David 0. Wagner, and Elizabeth Timmerman, in the McHenry Circuit Court.

This was a petition to enforce a mechanics’ lien against a building situated on a lot in Monmouth, Illinois, and filed in the Warren Circuit Court.

This was an action of assumpsit upon an instrument commonly called a certificate of deposit, which is set out in the record, as follows: “ No. 10, 773. State of Illinois, “ Chicago Marine and Fire Insurance Company, Chicago, April 23, 1861. “John Woollacott, Esq., has deposited in this office three hundred dollars, Illinois currency, payable in like funds to his order, on return of this certificate. “ §300. _ HAMILTON B. DOX, Secretary. “Registered.

This suit was brought by the defendants in error against the plaintiff in error, under the attachment act of Illinois, the plaintiff in error being a non-resident.

The record from the court below, sets forth a declaration in ejectment by Howes against O’Donnell, in the usual form, filed 12th March, 1861, in March term, with the usual notice to plead appended. There is also appended to the declaration and notice, the following sheriff’s return: STATE OF ILLINOIS, ) WINNEBAGO COUNTY, j I have this day served this writ of ejectment, by delivering a copy of the same to the within named John O’Donnell, this 12th day of March, 1861.

This was a suit on a note. Declaration in the usual form, against Barnes. Parties went to trial upon declaration, general issue, and notice of set-off. Trial by jury ; verdict for Simmons for $429.66. On the trial, Simmons offered copy of note in evidence to maintain the issues on his part, and rested. The defendant then called Richard H. Maxwell, who testified, that about a year ago he heard a conversation between the parties.

This was an action of assumpsit, brought to the Iroquois Circuit Court, where a judgment was rendered, in favor of the plaintiffs below, the appellees, on this note: “ $155.00. New York, October 17, 1860. “ Six months after date, I, the subscriber, of Middleport, County of Iroquois, State of Illinois, promise to pay to the order of Curtis & Baker, one hundred fifty-five dollars, at their office in New York, value received. “JOHN F. WRIGHT.” The defendant below appealed.

<p>This suit was originally tried before a justice of the peace, and judgment was rendered by the justice for the appellee, and an appeal taken to the Circuit Court, where the suit was submitted to the court for trial by the consent of parties, and judgment was rendered for the appellee for the sum of fifty dollars, and an appeal was prayed and allowed.</p> <p>This cause was tried before Manniere, Judge.</p>

This was an action of replevin in the LaSalle Circuit Court, commenced by Dunn against Millay and Pierce. The declaration alleges, that on September 25, 1861, defendants wrongfully took about five hundred bushels of ear corn, and two hogs, and unlawfully detained same until, etc. Defendants filed four pleas. The court sustained plaintiff’s demurrer to fourth plea, and rendered judgment thereon. Defendants withdrew first, second and third pleas.

<p>The complainant filed her bill of complaint in the Circuit Court of Rock Island county, in August, 1860, Howe, Judge, presiding. Defendants appeared and filed a demurrer to the bill, which was sustained, and the bill dismissed at January term, 1861. Complainant excepted to the ruling of the court in sustaining the demurrer and dismissing the bill, and prayed an appeal to this court.</p> <p>Complainant’s bill sets forth, that she is the widow of John Jennings, who died May 3,1857, in said Rock Island county; that said John Jennings was a son and heir-at-law of David Jennings, who died January 29, 1856, in said county; that said David Jennings, at the time of his death, was owner in fee simple, of real estate in said county, to wit: One hundred acres on the east end of the south-west quarter of Section 31, Town 18 north, Range 2 east of the 4th principal meridian, in said county, and of other property both real and personal; that Elizabeth Jennings is the widow of said David Jennings ; that said David Jennings died testate, leaving a will, made part of the bill of complainant; that said will was tiled, proved and recorded in the probate court of said county, February 7, 1856; that by said will the said David Jennings devised unto the said John Jennings the above described real estate, upon the condition that the said John Jennings—together with one Thomas Jennings, who is also a son and heir-at-law of the said David Jennings, and to whom was devised other real estate in said will mentioned—should support and take good care of their mother, the said Elizabeth Jennings, during her lifetime; that upon the death of the said David Jennings, the said John Jennings, by virtue of the said will, entered upon and took possession of the above described real estate, and continued in the peaceable possession thereof till his death aforesaid, and made permanent and valuable improvements thereon by and with the consent of the said Elizabeth Jennings, and from the time of the death of the said David Jennings took good care of the said Elizabeth Jennings, and treated her with great kindness and affection, and furnished her with all the food and raiment that she desired until the time of his death; that there was no issue of the marriage of complainant with the said John Jennings; that by the laws of the State of Illinois, upon the death of the said John Jennings, at least an undivided one-half descended to complainant; that at the time of the death of the said John Jennings, complainant was on a visit to her relatives and friends in the State of Pennsylvania, but upon hearing of the death of her said husband, immediately returned to said Rock Island county, and arrived at her home, the residence of the said John Jennings, within about two weeks after his death; that complainant, immediately upon her return home, in a kind and respectful manner, offered to take good care of the said Elizabeth Jennings during her lifetime, in the same manner and style that her husband had previously done, and that she was ready, able and willing so to do.</p> <p>That said John Jennings died intestate, and that E. H. Johnson was duly appointed administrator of his estate, June 10, 1857; that said E. H. Johnson, as administrator aforesaid, and for and on behalf of complainant, immediately upon his appointment aforesaid, offered, in a respectful manner, to take good care of the said Elizabeth Jennings during her lifetime, in the manner required by the will; that always since the death of her husband, complainant has been ready, able and willing to take care of the said Elizabeth Jennings, and offered to take care of her in the manner required by the will.</p> <p>That the said David Jennings, by his will, gave the said Elizabeth Jennings power to sell the said real estate only upon the express condition that “ the said John Jennings and Thomas Jennings should fail to give her a good support.” That the said Elizabeth Jennings, well knowing that said John Jennings did, after the death of the said David Jennings, and until the death of the said John Jennings, support and take food care of her, and well knowing that after the death of said ohn Jennings, complainant, as the widow of the said John Jennings, was able and desired and offered to continue to, support her, did, soon after the death of said John Jennings, unlawfully and forcibly expel complainant from the said premises and every part thereof, and ever since has kept complainant out of the possession of said premises and every part thereof. And that upon the 31st day of August, 1857, by warrantee deeds, did unlawfully and fraudulently convey the said one hundred acres to David B. Jennings, Thomas Jennings and Andrew Jennings—to one of them forty acres, to the others thirty acres each. That said David Jennings, Thomas Jennings and Andrew Jennings did then, each and all of them, well and fully know that said conveyances were wrongful, unlawful and fraudulent.</p> <p>The bill prays that all the above parties be summoned as defendants, and required to answer the bill, and that upon a final hearing thereof, the court would order, adjudge and decree the above mentioned conveyances to be cancelled and held for naught; that complainant, by proper decree, may be placed in possession of said premises, upon the same terms that her husband possessed them, and that complainant may be allowed to take care of and support the said Elizabeth Jennings, and that she may be allowed all the rights and privileges enjoyed by her husband in his lifetime under said will; and for general relief.</p> <p>A copy of the will is set out in the opinion of the court.</p> <p>Appellant, who was complainant below, assigns for error the order of the court below in sustaining the demurrer and dismissing the bill.</p>

This was an action of assumpsit for money had and received, money lent, money due upon account stated, and money paid, etc., commenced in the Superior Court of Chicago, to the July term thereof, 1861, by defendant in error, against the appellants, for damages laid at §20,000.