Volume 29 — Illinois Reports

This was an action of foreign attachment, commenced by Thomas S. Dickerson, plaintiff, in the Circuit Court of Cook county, on the first day of November, 1859, against E. GL Howland and William O. Jones, defendants, the latter only being a non-resident, on a joint debt against the said Howland and Jones, and amounting, as sworn to, to the sum of $979.31, and being for goods sold and delivered.

The facts of this case are fully set out in the opinion of the Court. • ■ The motion was decided by Manierre, Judge of the Cook Circuit Court.

This is an appeal from a judgment upon a special assessment warrant, for macadamizing Wells street from the north line of Kinzie street to the Green Bay road, dated the 8th day of October, 1861.

<p>error to cook.</p> <p>Upon a re-hearing of this case, which is reported in 26 Illinois, p. 360, the judgment below, is affirmed.</p>

The complainant and appellee, Alfred Patchen, having a pre-emption claim upon the land in question, applied to Henry A. Mix to furnish a land warrant with which to enter the land, and give him time for payment.

This was a motion for a mandamus to George H. Harlow, clerk of Tazewell county, Illinois, to compel him to issue a writ, etc. The petition states that the relator, on the 11th of April, 1862, the respondent being the clerk of the Circuit Court of Tazewell county, Illinois, presented a precipe for a summons against one Smith Mosher, Jr. ; that the clerk filed the precipe and docketed the suit, and made out a writ in due form of law, and then presented the relator with a bill…

This was an action commenced against Newlan by Shafer, upon an order given by Newlan upon one Buchanan, for liquors, upon a horse trade between Newlan and Buchanan. Shafer presented his order and received his liquors, which he returned to Buchanan, upon the ground that they were so adulterated as to be without value. There was proof showing, that Newlan said to Shafer, that if he would get the order back from Buchanan, that he (Newlan) would arrange the matter with Shafer.

This was an action of assumpsit upon an indorsed note;. There was a trial in the Circuit Court of Cook county, and a verdict and judgment for the defendant in that court. The plaintiff below brings the case here on a writ of error. The facts are stated in the opinion of the Court.

<p>'The opinion of Mr. Justice Breese gives a full statement of the case.</p>

This cause was heard before John H. Howe, Judge, at regular October term, A. D. 1860.

These were two actions of assumpsit, commenced in the Superior Court of Chicago, by the appellees against the appellants on promissory notes, on the 9th day of October, 1860. The proceedings in each case, from their commencement to their conclusion, were the same. The declarations were filed on the 26th of October, 1860. . The plea of the general issue and notice of set-off) with affidavit of merits, were filed, and issue was joined.

This complainant alleges, that the defendant, being in her employment as confidential clerk, having the entire control and management of the internal affairs of her store, without her knowledge or consent, obtained a lease to himself of the premises in which the trade was carried on; refused to transfer the lease to her; excluded her from the premises; and by these means compelled her to a sale of the stock and fixtures to him, at a price wholly inadequate to the value of…

This was a proceeding commenced in the County Court, by petition of the mayor of the city of Peoria for the appointment of commissioners to assess damages and benefits accruing by reason of the opening and extending of Washington street, in said city, sixty feet wide through Mills’ Addition to said city.

This bill alleges, that on the 13th day .of January, 1832, Amasa Barbour, of Jefferson county, New York, was seized in fee simple of the S. E. 25, 13 N., 9 E., in Marshall county; that Amasa Barbour and wife, on that day, conveyed to complainants, in fee simple, by warranty deed; that by virtue of said deed, they became seized in fee, and have remained so seized. That Amasa Barbour died in 1833; that they omitted to have their deed recorded.

The facts and pleadings in this case are fully stated in the opinion of Mr. Justice Breese. The jury found for the appellee, and judgment followed that finding.

This suit is brought to recover the amount upon an award made by Solomon Hubbard, against the defendant below, in accordance with the following contract of submission : “This is to certify, that I promise to pay Renselear M. Firman, in addition to what I have already paid him, for the lot one (1) of the southwest quarter (¿) of section eighteen (18), town twenty (20), range five (5), whatever Solomon Hubbard decides is due from me to him. F. B. HUBBARD.

This bill of complaint, filed by Woodhull, states that on the 18th of January, 1851, Granville Herring, of Winnebago county, Illinois, was indebted to Benjamin Moffatt, then of the same county, but now deceased, in $1,200, and made his promissory note for that sum, payable with interest annually-at ten per cent., to said Benjamin Moffatt or bearer, five years from date.

This was an action of assumpsit on this note : $240.55. Chicago, Oct. 10, 1861. One day after date, we, the subscriber, of Wenona, county of Marshal, State of 111., promise to pay to the order of Buell,Hill & Granger, two hundred and forty 65-100 dollars, at their office, value received, with current rate of exchange, and interest at ten per cent, after due, until paid. (Signed) A. H. TODD.

This was a declaration, in assumpsit upon the following instrument of writing, called a promissory note: §1,139.92. New York, March 30, 1861. Six months after date, I promise to pay to the order of Messrs. J. R. Jaffray & Sons, eleven hundred thirty-nine and 92-100 dollars, value received, at W. H. Miller’s Bank, Aurora, 111., with current rate of ex. on N. Y. C. L. HOYT. Declaration was in usual form, and contained common counts. The general issue only was pleaded.

This case was submitted to the Sangamon Circuit Court, upon the following statement of facts: L is agreed by the ] ivties in this cause, that the State Bank has been duly put in liquidation by an order of the Circuit Court for Sangamon county, for the failure of said bank and the owners thereof, tc urnish additional security for the payment of the circulating notes of said bank on account of the depreciation of the securities of said bank, as the said hank was required to do…

<p>APPEAL FROM TAZEWELL.</p> <p>The rule which requires that objections to evidence should be specially stated, has application only to such objections as can be obviated; either by other evidence, or by the act of the party, and the court.</p> <p>The words “ with exchange” in a note, whore they are unmeaning and can be rejected as surplusage, do not affect it in any way.</p>

The order dismissing the petition was entered at March term, 1862. The following statement and stipulation is a part of the record: This is a petition for dower in the lands of Levi Jennings, deceased. The petition was filed August, 1861. The defendant files general demurrer to the petition. The Circuit Court sustained the demurrer, and dismissed the petition.

<p>ERROR TO PEORIA.</p> <p>Where the mortgagors of goods, such as wines, etc., with the knowledge of the mortgagee, are daily selling them out, and supplying themselves with others, it will be presumed, the mortgagee has waived his privilege of taking the goods on failure to pay; and he cannot reclaim them from the hands of third purchasers.</p>

<p>APPEAL FROM McHENRY.</p> <p>. An idiot cannot acquire residence or settlement in any place, by virtue of his own acts. The residence or settlement of such a person is fixed either by the; father dr those having paramount control over him.</p> <p>A person having a legal settlement in one place, that settlement continues until another is acquired in the State. A settlement in another State or country, will not change that acquired in this State, if the pauper returns to it.</p> <p>Where a person moved into a town, purchased property, resided two years, and then left the State, leaving his family behind him, the settlement and residence of the family is there fixed, and if they become paupers, they are a charge upon such town.</p>

This was an action of ejectment, brought by appellee against appellant, to recover possession of the east half of the south-west quarter, and the north-west quarter of the southwest quarter, of Sec. 34, Town 42 north, of range 2 east of the third principal meridian. Declaration in the usual form for the premises above described. Notice and proof of service. Plea, not guilty.

The plaintiff below, Tanner, filed a declaration in trespass, containing three counts ; in the first of which it is charged that the defendants, on the first day of December, 1860, and on divers other days between that time and the commencement of this suit, broke and entered plaintiff’s close, to wit, the north-west quarter of section six, in the township of Aurora, in Kane county, and destroyed the fence, and trod down and destroyed grass and wheat.

<p>ERROR TO KANE.</p> <p>A substantial compliance with the requirements of the statute, in laying out a highway, if nothing fundamental is admitted, is all that is requisite; the strictest possible compliance with the statute is not demanded.</p> <p>Under township organization, before a new road can be opened, or an old one changed, there must be a report and survey; these, and a plat of the road, must accompany the order of the commissioners declaring such highway opened, which order, with the petition, should be left with the town clerk, who should note the time of filing. A mistake by the clerk in the date of filing, may be shown.</p> <p>The proceedings, etc., in relation to the opening of a highway, must be filed with the town clerk, within a reasonable time after they occur. But his neglect to mark the correct time of filing, will not be fatal.</p> <p>After the owner of land has accepted the damages allowed for opening a highway, it is too late for him or his grantee, to declare the proceedings for opening it void.</p>

<p>ERROR TO SUPERIOR COURT OF CHICAGO.</p> <p>A chattel mortgage, not acknowledged and recorded, though obligatory upon the parties to it, is void as to third persons.</p>

This was an action of assumpsit, brought by the defendants here, as plaintiffs below, to recover against the plaintiff here, as defendant below, upon a special contract for the purchase and sale of cattle. Judgment by default was rendered against the defendant below for $2,192.50 damages, besides costs. From this judgment the defendant below appealed to this court.

This is a suit by Favorite, as indorsee of the note of Lord & Smith, appellants, dated 18th April, 1861, payable to order of Wahl Brothers, two months after date, for $589, and indorsed in blank by “Wahl Bros.” The defendant plead the general issue, and gave notice as follows: “ Take notice, that the above named defendants, on the trial of this cause, will give in evidence, and insist that, at the time when the note sued upon in this cause became due and payable, and for a…

This was a bill in chancery, filed by appellants against appellees.

This indictment charges the commission of a riot, by Barbay Schramm, Louis Schramm and Benedict Schramm, May 10, 1861, in the city of Chicago, by beating and making assault upon one Wolf Schaffer, etc. Plea of not guilty, by Louis Schramm and Benedict Schramm.

This was an action of ejectment, tried before Van H. Higgins, one of the judges of the Superior Court, without a jury, at the January term, 1862. Plaintiffs in error were plaintiffs below. The declaration is in usual form; describes the premises as lot 29, in block 4, of Fort Dearborn Addition to Chicago, in Cook county, Illinois; alleges that plaintiffs claim the same in fee, and were ejected by defendants, August 1,1860. Plea, not guilty.

Evey sued Jacob and Albert Seafkas, in debt, on a note, given by them to one Gish or order, for one hundred and fifty-two dollars and interest, dated 19th September, 1857, and assigned by Gish, on the 1st of January, 1859, to one Frantz, who again assigned the note to Evey, the appellee, on the 22nd of March, 1861. A. Seafkas denied having signed the note, and verified the plea by his affidavit. There was proof showing that he directed his son to sign the note for him.

This agreed case shows, that on the 23rd day of February, 1839, the General Assembly of the State of Illinois passed an act, entitled “ An Act to incorporate the Illinois Mutual Fire Insurance Company; ” and on the fifth day of March, 1843, the General Assembly passed an act, entitled “ An Act to amend an act entitled ‘An Act to incorporate the Illinois Mutual Insurance Company,’ ” approved February 23, 1839.

The plaintiff below, Loren Perkins, commenced his suit against the defendant in the Kane Circuit Court, in an action of trespass on the case upon promises, and filed his declaration at the Hay term, 1861, for money had and received. The declaration contains one special count and the usual common counts. Damages laid at $800. Defendant plead the general issue; the case was tried at February term, 1862, before the court, a jury having been waived by both parties.

It appears from the record in this case, that in February, 1849, Thomas B. Greene, who was a capitalist, was engaged in entering lands with land warrants, and making sale of such lands to others, on time, at an advance. That during this time, one H. H. Tinker went about the country, looking up suitable lands to be entered, and purchasers, when that could be done, to purchase them.

This was an action of assumpsit, brought by Winchester against Puterbaugh, and tried before Harriott, Judge, and a jury, at the June term, 1861, Tazewell Circuit Court. The declaration was in assumpsit, and contained the usual common counts, and three special counts. The general issue and several special pleas were filed. At the trial of the cause, the plaintiff offered in evidence the following bill and receipt: Pekin, April Y, 1869.

This decision is upon a petition for a re-hearing of the case reported in 26th Illinois Reports, page 480. The grounds for a re-hearing are stated in the opinion of the Court by Mr. Justice Breese.

This bill shows, that on or about March 29,1856, defendant, Robert J., purchased of Robert and Susan Jeneson, his wife, the premises described, for the sum of about $4,000, and the said Robert J., to make payment for the same to the said Robert Jeneson and Susan Jeneson, his wife, borrowed from the complainant the sum of $1,000, and the said Robert J. did then and there pay the said Robert Jeneson the said sum of $1,000, so borrowed as aforesaid from this complainant, to be…

This record states that the bill of complaint of James Curtiss, and Mary Curtiss his wife, against William H. Brown, was, by the said complainants in person, filed in Cook County… Held: Gray agreed to and did convey the property described in the deed to Brown, in such manner and form, and upon such terms, as the said Mary and James Curtiss should require; this was to be, and was, the sole consideration of the conveyance to Brown, and the deed was accordingly so made. 3.

The substance of this bill of complaint is sufficiently stated in the opinion. The prayer of the bill was, that the company, and all others who claimed to have any interest in the mortgage, bond, or coupons, should be enjoined from taking any proceedings to enforce their collection, and that the mortgage should be canceled. Upon the overruling the demurrer to the bill, there was a decree in accordance with the prayer.

This was an action of assumpsit on the note, copied into the opinion of the Court. There was a special count on the note, and the common counts. The defendant below demurred to the special count, and joined issue on the other. The demurrer to the special count was overruled, the defendant abided by his demurrer, and judgment was rendered for Francis by nil dicit, on that count. There was a judgment for plaintiff below on the note. Defendants below appealed.

This was a suit in debt, by Eettleton against Mix, upon this instrument: “Due Moses JSTettleton on demand, with interest, one thousand and fifty dollars, for value received, payable in orders on the county of Ogle and State of Illinois, of such size and denomination as said Mix may be able to furnish.” A plea of the general issue, and three special pleas, were filed to the declaration. To some of which, demurrers were sustained, and upon others issue was joined.

This suit was commenced before a-justice of the peace on the following summons: STATE OF ILLINOIS, > la salle counit, ) ss' The People of the State of Illinois, to any Constable of said County, Gbeetino : You are hereby commanded to summon Joseph Brewster to appear before me, at my office in Earlville, on the 18 th day of July, A. D. 1859, at 10 o’clock A. M., to answer the complaint of Jeremiah Grover, for a failure to pay him a certain sum, not exceeding one hundred…

This was an action of assumpsit, brought by William B. Ogden, Mahlon D. Ogden, Edwin H. Sheldon, and Stanley H. Fleetwood, partners, transacting business under the name of Ogden, Fleetwood & Co., against the appellant, in the Superior Court of Chicago. The declaration contains only the common money counts. The plea is the general issue.

This was an action of assumpsit by the appellee against the appellants to recover for work and labor. The declaration contained three counts.

The facts of this case are stated in the opinion of the Court. The court found for the plaintiff below, defendant in error here.

The plaintiff in error filed his petition in the court below, to enforce a mechanics’ lien, on a contract set out in the petition, and designated as “ Exhibit A.” The contract was entered into between the plaintiff and the defendant, Hall, on the 9 th of April, 1860, and by the terms thereof the work was to be completed by the 20th of July, 1860, the first payment to be made two months after the time fixed for the completion of the contract, to wit, on the 20th of September,…

This is a special action on the case against the city of Chicago for an alleged breach of duty arising, as appellant claims, out of contract between the parties, the subversion by defendant of plaintiff’s easement, in West Water street, Chicago, and special damage to her property abutting upon said street.

Oír the 3rd day of August, A. D. 1860, Ann M. Pride complained of Peter Kelly, before a justice of the peace, for being the father of a child of which she was delivered about the 26th of May, 1860. Kelly was arrested, and gave bonds to appear at the Circuit Court for trial.

This was an action of assumpsit, commenced by attachment. Writ of usual form, returnable at June term, 1859, upon the back of which is the following return: “ Served the within on the within Joseph 0.

This is the same cause that was heretofore before this court, between the same parties, and which was reported in 26 Ill. 507. By agreement of the parties, the record in that cause, and the abstract of the same, is made a part of this case, which shows the proceedings in the Cook Circuit Court, previous to the former appeal. The additional record shows the proceedings in that court subsequently.

This was an action of ejectment commenced and tried in the Peoria Circuit Court. There was a trial by the court and and jury at November term, 1861, which resulted in a verdict for the plaintiff for the undivided fourth of the south-east quarter of Section thirty-three, Town ten north, ¡Range seven east. * There was a motion for a new trial, which was overruled, and a judgment was rendered for plaintiff below. The defendant below is appellant here.

This was an action of assumpsit against the appellant, as the guarantor of a promissory note, signed by William Muller and F. Kusowsky, and given to the appellees by the name of A. Cahn & Co. The appellant pleaded the general issue, which he verified. Cause was heard by Manniere, Judge, without the intervention of a jury. The court found for Cahn & Co., and gave them a judgment for $230.50. A motion for a new trial was overruled, and thereupon Heintz appealed.

This suit was originally brought before a justice of the peace of Woodford county, by appellees, against appellant, as agent of Eobinson & Dunham' in which appellees recovered judgment for $65, and the same was appealed to the Circuit Court. Trial was had in said Circuit Court, at the December term thereof, 1861, and the jury found a verdict for appellees for $60.60.

This was a process of garnishment by William Little and others, against Robert 0. Stickley, as garnishee of Smith and Brady. The affidavit upon which the writ was issued, is copied in the opinion. A summons against Stickley was issued, dated November 5,1860, and served December 6, 1860. In February, 1861, a conditional judgment was rendered against Stickley, and a scire facias ordered tq issue. A scire facias was issued, and served.

Calhoun was sued for the violation of the market ordinances of the city of Peoria, and was found guilty, and fined five dollars. He appealed to the Circuit Court, where the cause was tried, and a verdict and judgment rendered in favor of the defendant; from which judgment the case is brought to this court by writ of error. The city offered its charter, and the ordinance in question, which were accepted as proved.

This was an action of debt by Jonathan P. Burton, the defendant in error, upon two promissory notes, made at Philadelphia by the defendant below, payable to his own order, and by him indorsed to the plaintiff below.

Oh the 9th day of February, 1861, the appellant filed her bill in chancery, in the Circuit Court of Cook county, against William B. Ogden, Mahlon D. Ogden, Edwin H. Sheldon, Charles Butler, Eliza A. Butler, James D. Wilson, Wesley Hunger, George Armour, O. T. Snów, and the Chicago Dock and Canal Company, setting forth that Edward A. Hicoll was seized of an equitable estate of inheritance in certain tracts of land, therein specifically described, called the “ Trust half of…

This action was case, brought to the December term, A. D. 1861, of the Superior Court of Chicago, by Joshua G. Pinckney, against the American Express Company. The declaration contains three counts. The first count alleges that the plaintiff, at Dixon, Illinois, at the time of committing the grievances, was the owner of a draft, which is in the words and figures following, to wit: $1000.

<p>Petition for mandamus. The facts of the case are stated in the opinion of the Court.</p>

<p>APPEAL FEOM SANGAMON.</p> <p>A party in possession of land has a possessory title, which is subject to levy and sale on execution.</p> <p>A party acting in a fiduciary capacity, cannot make any admission to the prejudice of the trust fund, and against the cestui que trust.</p> <p>An estoppel in pais can only be set up as a means to prevent injustice.</p> <p>A bought, on execution against 0, and the heirs of B, a lot, of which C had possession. Subsequently, D, a judgment creditor of the heirs of B, redeemed from that sale, and purchased the same lot under his own judgment, and, after sometime, A received the redemption money from the sheriff. Held, that the accepting the redemption money by A, did not prevent him from resisting D’s claim to the lot.</p>

This was a bill in chancery, filed in the Wayne Circuit Court by defendant in error, against plaintiff in error, to enforce a vendor’s lien.

This was a bill in chancery, filed by defendant in error against plaintiff in error. The bill alleges, that in 1850, the defendant in error rented of one J. Gh Bowman, as agent of plaintiff in error, a farm belonging to plaintiff, and continued in the occupancy of said farm for several years, paying rent therefor to said agent. That defendant and said agent differed about the rent of 1854, which is known as the dry year.

The defendant in error brought a suit against the plaintiff in error before a justice of the peace of Washington county, in which suit she recovered judgment against Kellogg, for six dollars and twenty-five cents, and costs of suit. Kellogg appealed to the Circuit Court of Washington county, and at the September term, 1861, of that court, the judgment of the justice was affirmed by the court who tried the case, without the intervention of a jury, by agreement of parties.

This was an action of assumpsit, commenced in the Circuit Court of Perry county by the appellees, who were plaintiffs in the court below, against the appellant, who was defendant in the court below, on a promissory note for two hundred and seventy-five dollars and fifty-three cents, made by appellant in favor of appellee. The declaration contains five counts, two special counts, and three common counts.

<p>ERROR TO PERRY.</p> <p>On an appeal from a justice of the peace, the Circuit Court may render a judgment against several defendants, although service of the process issued by the justice had not been made on all, and he had rendered judgment against all. Appearance in the Circuit Court, gave jurisdiction to that court. The pioper inquiry in the Circuit Court was, had the justice jurisdiction over the subject-matter ?</p>

This cause was heard before S. L. Bryan, Judge. The facts of the case are stated in the opinion of the Court. The cause was submitted ex parte.

<p>This was a bill in chancery filed by appellees against appellants, in the Wabash Circuit Court, at the April term, 1860.</p> <p>The bill alleges that complainant,, on the 9th of April, 1857, recovered a judgment against defendants, in the White Circuit Court, for $1,324.50 and costs. That execution issued thereon to Wabash county, which was levied on the undivided six-seventh parts of south-east quarter Section 1, Township 1 north, Range 12 west, and six-sevenths of “ north part of north-east quarter ” of Section 12, Township 1 north, Range 12 west, in Wabash county, and known as the “ Wood Farm.” That Wood being largely indebted and in failing circumstances, for the purpose of hindering and defrauding his creditors, on the 23rd of March, 1857, fraudulently pretended to sell and convey said lands for the consideration of $2,900, to defendant Paine. That on August 24,1857, said Wood, more effectually to defraud creditors, induced Paine, for the pretended consideration of $3,000, to convey said lands to defendant Stillwell. Charges that Paine never paid anything for said lands ; that Paine knew Wood intended to hinder and defraud his creditors ; that Stillwell, at the time of his purchase, knew that the conveyance from Wood to Paine was to defraud creditors; that Stillwell received the conveyance for the same purpose, and that he never paid $3,000 to Paine. Charges that conveyances from Wood to Paine, and from Paine to Stillwell, were fraudulent and void as to creditors. Prayer of bill, that lands be subject to payment of complainant’s judgment.</p> <p>Answer .of Wood admits judgment as charged; also execution and levy. Admits he was largely in debt, but was making every effort to pay his debts. Denies that he tried to hinder the collection of debts. Admits the sale to Paine for $2,900, which he received. Says judgment of complainant was obtained by confession on warrant of attorney ; that the sale to Paine was before the warrant of attorney was executed, and sale was known to complainants at that time. Power of attorney was dated April 1, 1857. That on said day he gave to complainants, and to Keen & Preston, a mortgage on a house and lot in Timberville, valued at $500, and assigned to them a certificate of purchase for one hundred acres of land, valued at $800, and note and accounts, amounting to $1,100. That said property was placed in the hands of said parties to secure the payment of said judgments, and one in favor of Keen & Preston. Avers, if properly applied, said property was sufficient to pay the debts, and was so considered by the parties. Admits that Paine conveyed the land to Stillwell, but denies that respondent induced him to do so; denies that he induced Stillwell to purchase; denies that either of said conveyances was fraudulent. Says Paine paid him $2,900 for said lands, within one year from date of deed, at respondent’s residence; that with part of said money he paid debts. Says he lived on the land, but does not claim it as his own.</p> <p>Answers of Paine and Stillwell say they know nothing of allegations of bill except what relates to them personally. Paine says Wood conveyed to him, March 23, 1857, in consideration of $2,900, but denies all fraud; admits he conveyed to Stillwell, August 24, 1857, for $3,000, which was to be paid in six and twelve months, and which was paid. Stillwell admits conveyance by Paine to him, in consideration of $3,000, which he paid before it was due ; denies all fraud, but avers he purchased in good faith; knows nothing of any other allegation in bill.</p> <p>General replication filed.</p> <p>Court decreed that conveyances were fraudulent and void, and that lands be sold to pay said judgment of complainants, etc., and decreed that defendants pay the costs.</p> <p>Defendants below appealed.</p>

Phelps, the appellee, brought an action against the railroad company, before a justice of the peace, to recover the value of a horse, killed in the town of Carbondale, by the locomotive of the company. Phelps recovered a judgment. The company then took an appeal to the Circuit Court of Jackson county, where Phelps again recovered a judgment, and the company appealed to this court. The train which killed the animal was a passenger train.

Ellis and Bowman brought ejectment, claiming title in fee simple for the east half of the north-west quarter of Section 32, Township 5 north, Range 10 west. Defendant pleaded not guilty. At September term, 1862, trial by jury, and verdict for the defendant. Plaintiffs introduced in evidence a judgment in favor of William D. Gallagher, against Samuel V. Allison and Thomas H. Mills, for $229.37, and costs of suit, rendered on the 30th day of October, 1840.

The facts of this case are as follows : Thomas D. Cummins, father of plaintiff in error, died in October, 1834, leaving complainant and two sisters, his children.

This was an action of trespass on the case for slander, commenced at the April term, 1861, of the Franklin Circuit Court, by Richard Wilborn, who was plaintiff in the court below, as well as in this court, against John Odell, defendant in this court. The declaration contains two counts. The first count contains the following words: “ Dick Wilborn (meaning the said plaintiff) has been stealing my (meaning the said defendant’s) corn.

This was an action of trespass, per quod servitium amisit, brought by the defendant against the plaintiff, for the seduction of his daughter. Declaration in the usual form. Plea, not guilty. The venue was changed to Wabash county, and at the September term, 1860, of said court, the cause was tried before Beecher, Judge, and a jury, who returned a verdict for the defendant in error, of $800.

Sharp was indicted in the Clinton Circuit Court, for committing an assault upon Thomas J. Locey, with intent to inflict upon him a serious bodily injury, and was found guilty under the indictment. It was proven on the trial that Sharp had threatened, sometime previous to the assault, that if he ever got into a difficulty with the Loceys, he would hurt some of them. Objection was made to the introduction of this testimony, but it was allowed to go to the jury.

This was an action on the case by Cole against Frizell for verbal slander. The plea was, not guilty. The venue was changed from Perry county to Jackson. There was a trial by jury, and Cole recovered a judgment for five hundred dollars damages. Frizell brought this appeal. The words complained of as slanderous embraced a charge for stealing a hog; there was evidence as to the admissions made by one of the parties.

This was an action of assumpsit by Price J. Patten and Company against Primer, upon an indorsed note given by him to one Lasater, and by Lasater indorsed to Patten & Co. Primer pleaded the general issue, and failure of consideration.

The original bill was filed by Richard Atkin, complainant, against Minerva Merrell, L. B. Eothchild, and Henry Gibbs, defendants. The bill states, that said Atkin is owner in fee of part of Lots 1 and 2, Block 1, Square 4, in Salem, Marion county, Illinois. That said premises were two tenements occupied by defendants, Eothchild and Gibbs. That complainant as owner was entitled to the rents from 1st June, 1859. That defendants, Eothchild and Gibbs, were the tenants.

This was an action of ejectment in the Morgan Circuit Court, to recover certain lands described in three declarations filed against said Gillespie and two of his tenants. By consent of the parties the three cases were consolidated, and thereafter the case progressed as one case against Gillespie. Possession of the defendant was admitted, and the plea of not guilty, filed.

This was an action on the case for a tort, brought by McConnel against Kibbe, charging that McConnel and Kibbe were owners of the same house, under which were two cellars, and on the first floor two store-rooms, and above them, (consisting of three additional stories,) the house was furnished and kept as a hotel. McConnel owned one cellar and Kibbe owned the other.

This was an action in assumpsit, on a note. The defendants pleaded non-assumpsit, and on a trial the verdict was for them. The plaintiffs below bring the case here.

<p>This court will exercise the discretion of dismissing a writ of error, without prejudice to the plaintiff, even after errors have been joined, in order that a new writ of error, with a more complete record, may be filed.</p> <p>A party complaining of a decree, must show by his record what the state of the case was, upon the pleadings in the court below.</p>

This was an action brought by the town of Pleasant, on complaint of James Lovell, overseer of highways, etc., for a failure on the part of defendant in error to work out or commute two days’ road tax assessed against him, with the other inhabitants of said town of Pleasant, in Fulton county, liable to such tax, by the commissioners of highways of said town, after notice, etc, The case, on appeal from justice’s court, was tried at the February term, 1862, of the Fulton…

This was a proceeding on the chancery side of the Cumberland Circuit Court, at the May term, 1859, thereof. The said Jonas Seely filed his bill to foreclose a certain mortgage, executed by the defendant, Dillard Tally, which is in the usual form, except so far as it sets up a mistake in the clause of- defeasance or condition. The bill shows that one Aaron Oldham was a party to the transaction, out of which the mortgage originated.

This was an action of assumpsit on an instrument as follows: SIBS.BS. By the fifteenth day of January next, 1858, we jointly and severally promise to pay Amos Babcock, or order, Seven Hundred and Fifty-Three 68-100 Dollars, for value rec’d. And we further agree if the above note is not paid without suit, to pay ten dollars addition to the above, for attorney fees. Canton, Feb’y 9th, 1868. C. 0. NICKERSON. JAMES ROBB. JOHN J. FAST.

<p>ERROR TO DEWITT.</p> <p>If the error assigned is the striking of a demurrer to a bill from the files, the • demurrer should be brought to this court for examination.</p> <p>A chancery cause need not be referred to a master to take proofs ; the court can hear these.</p> <p>Where interest and costs are not claimed, a decree should not pass for them.</p> <p>A decree for seven hundred dollars and upwards, will be sustained for the sum certain, of seven hundred dollars.</p>

Thomas J. Buittaih, the plaintiff in error, filed in the Edgar Circuit Court his bill for a new trial at law, in a certain cause in which the said Daniel Wood and Joseph Wood were plaintiffs, and said Thomas J. Buntain, defendant.

The suit below was brought in the name of the testator of the defendant in error, and judgment was had at the special January term of the Edgar Circuit Court, 1860. There are two counts in the declaration; one the common count on the account stated, the other a special count on the following bill of exchange, a copy of which is filed with the declaration: §1,690 15-100. Paris, 111., March 1st, lSSU Six months after date, pay to the order of Bart.

The facts of the case are the same as in the case which was decided in the twenty-seventh volume of these Reports, (Hall v. Carpen, 27 Ill. 386,) which see, for the history of the transaction.

On the 8th day of October, 1860, William A. Patterson filed his declaration in ejectment against Jacob Kreig in the usual form, to recover possession of the north half of the south-east quarter of Section 16, in Township 5 north, Range 6 west, in Hancock county, Illinois, which said declaration was duly served on defendant on the 24th day of September, 1860. Plea, not guilty.

William F. Endebs & Co., complainants below, filed their bill in chancery, in the Pike Circuit Court, on the 28th day of March, 1860, alleging that one Joshua Wood became indebted to them for goods in November, 1857, in the sum of $353.21. At the November term, 1859, of the Pike Circuit Court, judgment was obtained upon said indebtedness for $110.36, and costs. Execution was issued and went into the hands of the sheriff on 28th of December, 1859, and returned nulla Iona.

This was an action of replevin, brought in the Circuit Court of Greene county. The declaration contained two counts : 1st, for the taking; 2nd, for detaining.

This was an action originally commenced before a justice of the peace for Macoupin county. Summons in the usual form for a demand not exceeding one hundred dollars. Judgment before the justice for $57.32 and costs. Appeal to Circuit Court. March term, 1861, cause tried by the court by consent.

<p>ERROR TO MORGAN.</p> <p>Tbe onus of proof is on the party holding the affirmative.</p> <p>When the debtor has shown that he is within the enacting clause of the first section of the homestead exemption act, he is prima facie entitled to its benefits, and it must be rebutted by the creditor to. subject the property to levy and sale.</p> <p>Where a creditor desires to levy on and sell the homestead under the second section of the homestead exemption law, it is advisable that he should be permitted by the court, on the trial, to make the proof and have the fact found by the jury, that the debt or any part thereof, was created for the purchase or improvement of the homestead.</p>

Oisr the 29th of April, 1859, an order was made in the Sangamon Circuit Court, before Rice, Judge, that this cause, which had been off the docket of said court since about the year 1849, should be and it was reinstated, and Erastus Wright, who had been appointed commissioner in that cause out of which the proceedings herein originated, then on said 29th April, 1859, filed a report entitled Charles H. Allen v. Amelia Allen et al. In partition, decree of November term, 1848;…

Robert Southwell, defendant in error, filed his bill to the October term, 1860, of Scott Circuit Court, to foreclose a mortgage made by the defendant, on land described therein, to secure $1,000. Making also Weinhagen & Hornbostle, St. Louis, W. W. Chapman, of Scott county, and Thomas Ellis and wife of Pike county, subsequent mortgagees, co-defendants.

This bill, filed by Joseph, Edward and William Tatnall, against John Gatewood, James H. Hays, and Joseph H. Williams, alleges, that on June 4, 1856, complainants, by their agent, Ontten, sold and conveyed to Gatewood, Section 11, Township 17, Range 4, for $6,400; one-third in hand paid, and two notes given for balance, intended to have been made payable to complainants, June 4, 1857, and 1858, each for $2,133.33|-, with interest, but, by mistake, made payable June 1, to the…