Volume 3 — Illinois Appellate Court Reports

<p>Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Appeal from the County Court of Morgan county; the Hon. E. P. ICirby, Judge, presiding.</p> <p>Mr. George J. Dod, for appellee;</p>

<p>Error to the County Court of Morgan county; the Hon. E. P. Kirby, Judge, presiding.</p>

<p>Appeal from the County Court of Sangamon county; the Hon. J. H. Matiieny, Judge, presiding.</p> <p>Mr. Robert L. McGuire, for appellants; that the property was exempt, cited Laws of 1877, 102.</p>

<p>Master in chancery—Failure to pay over money.—Scire facias was brought to assign new breaches on the bond of a master in chancery, for not paying over money received on a sale of lands under partition. The defendants contended that plaintiffs failed to show a decree of partition, and that the partition suit was not in equity. Held, that the proceedings in the case show that the partition suit was treated, all the way through, as a chancery proceeding, and the plaintiffs should not be defeated of their right to recover by such an objection; that even if it is admitted that if the proceeding in partition had been a purely statutory one, the sureties on the bond would not be liable, a point which the court do not decide, yet the distinction is so nice between that and a chancery proceeding in partition, that the court in order to uphold the jurisdiction in a collateral proceeding will refer the case to the law or chancery side, as may be necessary.</p>

<p>1. Practice—Demurrer in chancery.—On a general demurrer to a bill in chancery, if the complainant is entitled to any relief on the case made by his bill, the demurrer should he overruled. It does not follow that because the complainant may not be entitled to all the relief prayed for, the demurrer should be sustained.</p> <p>2. Consideration—Mutual promises.—One promise is a sufficient consideration to support another promise, and where a person does any act beneficial to another or agrees to do so, that forms a sufficient consideration to support an agreement.</p> <p>3. Statement.—Appellants charged in their bill of complaint that appellee B. sold an undivided third interest in certain land to appellee H., in consideration of a cash payment and three notes of appellee H., payable in one, two and three years, respectively; that B. gave to H. a bond for a deed on full payment of the notes; that B. afterwards indorsed said notes to appellants, who became the legal holders; that afterwards, by an agreement of all parties, B. executed a deed of the land to H., said deed to be delivered to H. on paying or securing to appellants said notes, and in the meantime the deed was to remain in escrow until compliance by H.; that H. fraudulently obtained possession of said deed and placed the same on record, and then conveyed said premises to P. without consideration. Prayer that said deeds be set aside, and for a lien upon said premises for payment of said notes, etc.</p> <p>4. Tender of deed not necessary—Action not premature.—Held, on demurrer to the bill, that a tender by appellants of a deed to H. was not necessary before bringing suit; that the fact that one of the notes was not then due constituted no defense to the action; and that appellants were entitled to a decree setting aside the deeds mentioned.</p>

<p>Road tax collected within a village—To be paid to village treasurer.—The tax for road and bridge purposes levied and collected within the corporate limits of a village, under the provisions of the second clause of section 81, of the road law of 1877, should be paid over to the treasurer of such village, instead of to the treasurer of the commissioners of highways of the town.</p>

<p>Verdict against evidence.—The Court, from an examination of the record, being of opinion that the verdict is against the evidence, reverse the judgment of the lower court, and remand the cause, but as the case will be submitted to another jury, the evidence is not discussed in detail.</p>

<p>1. Judgment—Must be against abb.—A judgment at law must be a unit, and being erroneous as to one defendant, it must be reversed as to all.</p> <p>2. Malicious prosecution—Acts op agent.—The evidence fails to show that one of the defendants, L, in any way aided, advised or consented to the prosecution of the plaintiff by bis sub-agent D, and the judgment cannot be supported as to him. ' The fact of such agency would not of itself make him liable for a criminal prosecution commenced without his knowledge by a sub-agent. The principal will not be liable unless, with knowledge of all the circumstances, he adopts and continues such prosecution.</p>

<p>Appeal from the Circuit Court of Cass county; the Hon. A. G-. Burr, Judge, presiding.</p>

<p>1. Practice—Exception, how taken.—Where exception is desired to he taken in this court to the admission of improper evidence on assessment of damages, the party objecting should move to set aside the assessment, and on refusal should preserve an exception.</p> <p>2. Pleading.—A plea of nil debet being improper, and no answer to the declaration, it was properly stricken from the files, and defendants not offering to plead further unaccompanied with an affidavit of merits, it was not error for the court to render judgment nil dicit.</p>

<p>Appeal from the Circuit Court of MpLean county; the Hon. Owen T. Beeves, Judge, presiding.</p>

<p>Error to the Circuit Court of Cumberland county; the Hon. J, C. Allen, Judge, presiding.</p>

<p>Appeal from the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.</p>

<p>1. Justice op the peace—Failure to deliver over papers—Liability op sureties.—The duty of delivering to the person entitled thereto, all papers in his hands as an officer, upon proper demand therefor, is expressly enjoined by the statute upon a justice of the peace, and for a failure to do so 1ns sureties on his official bond are liable.</p> <p>2. Measure op damages.—For a failure to deliver up, when demanded, securities left with him for collection, a justice of the peace is liable, and the measure of damages would be the loss thereby sustained by the owner. So, where the evidence showed that at the time the justice received the note, and ever since, the makers were wholly insolvent, the plaintiff was entitled to recover nominal damages, and beyond that only the value of the note.</p>

<p>Appeal from the Circuit Court of Green county; the Hon. A. G. Bure, Judge, presiding.</p>

<p>Writ op assistance—How issued.—Where a writ of assistance becomes necessary to put the complainant in possession of the land to which he is entitled, he should be required to present the facts requiring such writ to the Circuit Court, so that the court may judge of the propriety of awarding it.</p>

<p>Appeal from the County Court of Cass county; the Hon. J. W. Savage, Judge, presiding.</p>

<p>1. Fraudulent misrepresentations—Knowledge.—It is the well settled doctrine in this State that there must be knowledge of the falsity of the statement to render it fraudulent.</p> <p>2. Pleading—Allegations.—The declaration alleged that the defendant falsely, fraudulently and deceitfully represented to the plaintiff that said business yielded $2,000 per annum, and was and had been worth that much, etc., and there was an allegation that the said business was entirely worthless. This was not a sufficient traverse of the specific charges of fraud contained in the count. The denial must be by express contradiction in the terms of the allegation traversed.</p> <p>3. Statements as to value—When they become material.—While it is the general doctrine that a mere statement as to the value of property, or as to its quality, are not evidence of legal fraud sufficient to justify a recovery on that ground, the representation by defendant that his said business as a real estate and loan broker was large and profitable, and that his income therefrom was worth and yielded $3,000 per annum, admitted by the demurrer to have been falsely and fraudulently made to deceive the plaintiff, and to have been wholly untrue, was not the mere expression of an opinion about the value of property. It was the false assertion of the existence of a material fact, a fact intangible in its nature, and the truth of which was peculiarly within the knowledge of defendant, and by it plaintiff was deceived and induced to part with his money.</p>

<p>Error to the Circuit Court of Greene county; the Hon. A. G. Burr, Judge, presiding.</p>

<p>Peactice—Bikl of exceptions—What must appeae in.—The motion for new trial and affidavits upon which it is based, as well as instructions complained of, should be preserved in a bill of exceptions, or this court will not review the action of the court below. The affidavit and instructions copied into the record by the clerk form no part of the record.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.</p>

<p>1. Evidence—Cebtified copy of kecoed.—Our statute expressly provides that, upon the trial of any cause, any party may, by first complying with the provisions of the statute, read in evidence the record of any deed or a transcript of the record thereof, certified by the proper recorder, with like effect as though the original of such deed was produced and read in evidence.</p> <p>2. Res adjudicata—Ousteb—Notice to gbantob.—A judicial determination to which the heirs were not parties, and of which the grantees of their ancestor gave them no notice, does not as to them, establish the fact of a divestiture of title. Where a grantee is ousted under a legal proceeding to which his grantor is not a party, he must give due notice of such proceeding to his grantor, or else, in any subsequent suit against his grantor on the covenants of his deed, he has to show the validity of the title of him by whom he was ousted. v</p> <p>3. Covenants of wabbanty—Suit on—What should be shown— Exception to bule.—Under the covenant of general warranty, the covenantee, in order to recover, must show either that he is unable to obtain possession under the title derived from the grantor by reason of a paramount title by which the land is held adversely, or that he has been evicted by a paramount title outstanding at the time of the execution of the deed. This rule is however subject to exception in a case where the covenantor by his prior or subsequent acts, defeats the title that he has covenanted to warrant and defend.</p> <p>4. Ouster by mortgagee.—In this State, on the principle that the mortgagee is the owner of the fee, he can maintain ejectment, butwhere he resorts to a court of equity to foreclose and sell, the purchaser under the decree, without a deed, cannot assert a hostile title to which the plaintiff could rightfully succumb. The plaintiff’s title must be defeated by a paramount legal title, under which he could oust the plaintiff. The foreclosure sale, deed and eviction should all he shown in an action against the grantor on his covenants.</p> <p>5. Covenant for quiet enjoyment—"Warranty—Special breach —Proof—Variance.—In the case of covenants for quiet enjoyment and general warranty, the assignment of a breach must he special, otherwise the covenantee might recover for an eviction occasioned by his own acts. The special breach averred must be the breach proven, otherwise there will he a variance, and in the case of an exception, the plaintiff both by his pleading and proof must bring himself within the exception.</p> <p>6. Suit against heir—Proof of assets.—The evidence in this case is wholly insufficient to support the findings of the court, because it nowhere shows that property, either real or personal, to any certain value had ever descended or been distributed to the heirs.</p> <p>7. Action at law against heir.—The statute expressly gives the right to maintain against the heir or devisee the same actions which lie against executors or administrators, and to maintain joint actions.</p> <p>8. Parties—Joining administrator—Widow.—The administrator was necessarily made a party defendant. The assets in his hands are primarily liable for the debts of the deceased, and under the statute suit against the heir without joining the administrator can he had only in two cases—where there is no administration within a year, and where a judgment has already been obtained against the administrator, and there are no personal assets. The widow was properly made a party defendant, she being an heir, at least to the extent of one-third of the personal estate.</p> <p>9. Practice—Form of judgment.—The judgment, being personal against the widow and children, and against the administrator of assets guando accidermt, was erroneous. It should have been in solido against the administrator, widow and heirs. The order as to the administrator should have been quando acciderint, and the widow and heirs should have been subjected to no greater liability than the value of the estate that descended to them, exclusive of the widow’s award, and the court should have ascertained this value.</p>

<p>1. Promissory note—Innocent purchaser—Fraud.—It was urged in defense that the form of the note in suit and its indorsements were such as should put a purchaser upon inquiry, but the evidence showed no fraud in obtaining the execution of the note, and even if the transaction was fraudulent in reference to the consideration of the note, that taint could not follow it into the hands of an innocent purchaser.</p> <p>2. Failure of consideration.—A failure of consideration in whole or in part, or fraud in the consideration of the note, cannot be set up as a defense, where the note has been assigned before its maturity for a valuable consideration, without tracing its defects to the knowledge of the assignee.</p>

<p>1. Slakdeb—Affidavit.—The slander complained of was, that the plaintiff had sworn falsely in an affidavit filed by him in a chancery cause. The preponderance of evidence, under a plea of justification, going to establish the falsity of the facts stated in the affidavit, the verdict is set aside as being against the weight of the evidence.</p> <p>2. Justification—Mitigation of damages.—If it appears that the defendant, although he cannot fully justify, had reason to believe from the plaintiff’s own conduct that the charge was true, then such fact should be considered in mitigation of damages.</p> <p>3. Yebdict—Conflicting evidence.—If the finding of the jury is manifestly against the weight of evidence, the verdict will be set aside, even where there is some evidence in favor of the verdict, and in actions ex delicto courts will interfere with verdicts in order to prevent manifest injustice.</p>

<p>Appeal from the Circuit Court of Effingham county; the Hon. John H. Halley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. ¥m. H. Snydee, Judge, presiding,</p>

<p>1. Trespass—Measure of damages—Loss of profits.—In actions of tort, where the amount of profits of which the injured party is deprived as a legitimate result of the trespass, can he shown with reasonable certainty, such profits, to that extent, constitute a safe measure of damages, and so far as they are plainly traceable he should receive compensation for them; but such damages must be the necessary and natural consequence of the act. Profits which are merely probable and speculative cannot be recovered.</p> <p>2. Prospective profits as damages—Rule in estimating.—Where it is sought to recover for the loss of profits in any trade or business, the evidence must afford the jury some data from which they can with reasonable certainty determine the loss of profits. No fixed, certain guide for estimating such damages can be established.</p>

<p>Error to the Circuit Court of Clay county; the Hon. John H. Halley, Judge, presiding. "</p>

<p>1. Set-off.—Defendant claimed a set-off against plaintiff’s claim, for taxes paid by him at the request of plaintiff, but it not appearing that the defendant had paid the taxes, in any manner, or that he had become legally liable therefor, the set-off should not have been allowed.</p> <p>2. Agreement to pat taxes of another.—On grounds of public .policy no arrangement can be made between the collector and property owner, whereby the owner, or the property, can be discharged from liability by merely marking the taxes paid on the tax books.</p> <p>3. Set-off against agent.—Where one deals with an agent, knowing the agency, he cannot set off a claim due him from the agent against a debt due the principal.</p>

<p>1. Vendor’s lien—Reservation in deed—Notice.—A vendor may I reserve in a deed, a lien which he can enforce in equity against subsequent I purchasers and incumbrancers. A deed containing a description of the notes I given for the purchase money, and a recital in the habendum clause, “To I have and to hold on the payment of the notes hereinabove stated,” is a suf- I ficient reservation of a vendor’s lien, and the recitals sufficient to put a rea- I sonable person upon inquiry as to the payment of the notes mentioned. I</p> <p>2. Deed—Recital—Habendum.—There is no rule requiring a recital to ■ appear in particular portion of a deed. The habendum clause is a part of I the deed. I</p> <p>3. Payment oe mortgage—Lapse oe time—Presumption.—After the I lapse of twenty years, in the absence of any proof to the contrary, a morfc- ■ gage will be presumed to have been satisfied. fl</p> <p>4. Enforcing lien by assignee oe note.—When a vendor’s lien is ■ reserved in a deed, the right to enforce such lien passes to the assignee of the I note executed for the purchase money. ■</p>

<p>„ „ __ 1. Trespass quare clausum—When maintained—Possession.—In order to maintain the action of trespass quare clausum, the plaintiff must he in possession of the premises, except in cases where the land is unoccupied, and there is no adverse possession.</p> <p>2. Highways .—Where the locus in quo was a National road, the fee being in the State, the town having only the care and superintendence of it and the duty of keeping it in repair, there is no such possession as will enable the town to maintain this action. No such possessory right in a road exists in a corporation.</p> <p>3. Practice—Pleading—Distinction between trespass and case. —Although the statute has abolished the technical distinction between these forms of actions, it does not affect the substantial rights of the parties, so as to operate to give any other remedy for acts done than such as before existed; nor does it abrogate the well settled rule that the proofs must correspond with the allegations. If the declaration is trespass quare clausum fregit, then there must be a possession in order to support it.</p> <p>4. Damages—Evidence as to.—By its charter, appellant was only bound to restore the highway in such a manner as not to impair its usefulness, and it not appearing how appellant was in any way bound to repair the bridge in question, it was error to admit evidence of how much it would probably cost to repair the bridge. Damages which necessarily result from the injury complained of, may be shown under the ad damnum, but special damages must be specifically set forth in the declaration.</p>

<p>1. Correcting mistake—Power on court op equity.—A court of equity has unquestioned power to correct mistakes in the record of a court. Where the parties to the record seek a correction, it may be made upon motion and proper notice in the court where the mistake occurred; but this rule does not apply to one who was not a party to the record, and was not chargeable with notice of the mistake.</p> <p>2. Diligence—Intervening rights.—Appellant cannot be charged with want of diligence, he bringing his bill within ten days after discovery of the mistake, nor is he obliged to aver that no intervening rights of third parties had accrued. The law will not presume that such rights have accrued, and it is not necessary that such fact should be negatived in the bill.</p>

<p>1. Reviving judgment—Riens per descent.—The statute authorizes the plea of riens per descent where a recovery is sought against the heir, foi the indebtedness of the ancestor; but if the lands described in the scire facias to revive the judgment, had not descended to the heirs, no judgment could be rendered against them, and such plea would be improper.</p> <p>2. Foreclosure of mortgage—Presumption of satisfaction.—If the proceedings to foreclose a mortgage upon the land and subject it to sale were fatally defective, such mortgage could not, after the lapse of nearly twenty years, be interposed as an obstacle to the revival of the judgment, and subjection of the land to sale thereunder. And if such proceedings were valid, but'no conveyance to the purchaser was ever executed, it will be presumed after the lapse of nearly twenty years, that the land had been redeemed from such sale.</p>

<p>1. Municipal officer—Interested in contract.—If a municipal officer contracted to furnish an article to the corporation or city, and had an interest in its sale, he would come within the prohibition of the statute forbidding such contracts by a city officer; but if he only ordered the article by authority of the city and advanced the money to pay for it, he would not.</p> <p>2. Authority to purchase.—One member of a committee of the city council cannot, without the concurrence of the other members of the committee, or a majority of them, authorize the purchase of an article for the use of the city.</p>

<p>Appeal from the County Court of Hamilton county; the Hon. Cloyd Crouch, Judge, presiding. "</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>' Corporation—Personal liability of director or officer.—Under the general incorporation law creating a personal liability against the officers and directors of corporations for indebtedness exceeding the capital stock, such officers and directors are liable only to the creditors as a whole, and not to any individual creditor for the amount of his individual debt, and this liability can be enforced only in chancery. The object of the statute is to furnish a remedy and relief to the creditors generally, and a common fund to which they may, on terms of perfect equality, resort for the satisfaction of their debts.</p>

<p>Appeal from the Circuit Court of Williamson county; The Hon. Monroe 0. Crawford, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county, the Hon. William H. Sntdeb, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Eichland county; the Hon. • John H. Halley, Judge, presiding.</p>

<p>1. Forcible entry and detainer—Possession.—The plaintiff being in lawful possession of the premises, either as tenant by sufferance or otherwise, the entry of defendants was unlawful if made against the will of the plaintiff, or by force, and the action of forcible entry and detainer will lie to oust them.</p> <p>2. Abandonment.—The removal, by plaintiff, of his goods from the rooms, is not of itself an abandonment of possession, and dedaring his purpose to fit them up for rent, and talking about renting them is a sufficient indication of his intention to retain control over them, to contradict the theory of abandonment.</p> <p>3. Legal title not in issue.—The question, in whom is the legal title to the premises, is one which the court cannot try in this suit.</p>

<p>1. Subscription to railroad—Election called by wrong authority.—Where the act authorizing a municipal corporation to make subscriptions in aid of a railroad provides that the election shall be called by the County Court, an election called by a wrong authority, as by the Board of Supervisors, is void and confers no authority to make such subscription. The so-called vote is an idle form, and persons opposed to the subscription are under no obligation to vote against it, because they have a right to regard the entire proceeding as a nullity.</p> <p>2. Adoption of township organization—Does not change power. —The fact that upon the adoption of township organization the law requires that acts formerly to be done by the County Court shall be performed by the Board of Supervisors, cannot affect this case, because the enabling act in this case was passed subsequent to the adoption of township organization, and it will be presumed that the Legislature had knowledge of that fact, and intended to confer the power to act upon the County Court instead of upon the Board of Supervisors.</p> <p>8. Curative act—Cannot legalize a void election.—The election being void, a subsequent act of the Legislature legalizing the former vote is of no effect. It is the settled doctrine of this State that under the Constitution of 1848, the Legislature had no power to enact a law rendering a void election and subscription for corporate purposes valid.</p> <p>4. Effect of curative act—Revocation of power.—At the most the curative act merely granted power to the county to subscribe, but left it optional with the corporate authorities to subscribe or not, as the corporate will sh uld dictate. After the curative act, the Board of Supervisors made no further orders in regard to the subscription until after the present Constitution went into effect. There was, then, no binding contract of subscription, and the subscription already made not being under existing laws by a vote of the people, it was then too late. The power itself was revoked by the Constitution.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Union county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

<p>Ebbob to the Circuit Court of Crawford county.</p>

<p>Ebbob to the Circuit Court of Hardin county; the Hon. Jonit Dougherty, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Richland county; the Hon. John H. Halley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Pleading—Declaration on bond.—The condition of the bond was to pay such damages as should be awarded against the First National Bank for wrongfully suing out attachment, etc., and the declaration failing to aver that any damages had been awarded against the bank, it was defective, and the demurrer should have been sustained.</p>

<p>Attorney—Abandonment op case.—When an attorney accepts employment in a case, in the absence of a special contract to the contrary, the law implies an obligation on his part to attend to it until it is determined, and he cannot abandon it without just cause. He may demand payment of fees already earned, and if not paid, may upon reasonable notice withdraw from the case; but arefusal to pay some other demand will not justify him in leaving the case.</p>

<p>Appeal from the Circuit Court of Clay county; the Hon. John H. Halley, Judge, presiding.</p>

<p>1. Evidence—Use of meiiobandum.—A witness may refresh his memory by the use of a memorandum when he recollects having seen the writing before, and while the facts were fresh in his memory, though he has, at the time of testifying no independent recollection of the facts mentioned in it, yet remembers that at the time he saw it he knew the contents to be correct.</p> <p>2. Husband and wife—Testimony by.—The statute allowing husband and wife to testify for each other in certain cases, is in derogation of the common law, and parties cannot avail themselves of its privileges unless they come within its provisions.</p> <p>3. Keeping boarding-house—Separate property of wife.—Under some circumstances, the business of keeping a hotel or boarding-house may perhaps be regarded as the separate property of the wife; but the fact that she makes the contracts for board, and receives the pay therefor, is not sufficient to prove a separate property. The presumption would be, where the husband and wife live together, that the husband is the head of the family, that the expenses were borne by him, and that he received the profits derived from the hoarders, and that his wife acted merely as his agent.</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon. Mohrob C. Crawford, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Richland county; the Hon. James C. Allen, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Union county; the Hon. Monroe 0. Crawford, Judge, presiding.</p>

<p>Appeal from tbe Circuit Court of St. Clair county; tbe Hon. Wh. H. Snyder, Judge, presiding.</p>

<p>1. Will—Construction—Legacy—Upon what property charged. —The first clause of testator’s will, after devising to his wife the use, during her life, of all his real estate, concluded: “Also all my household and kitchen furniture, goods, chattels, moneys and effects belonging to me at the time of my death, to have the said personalty as her own, with authority to sell and dispose thereof as she may deem best, but subject to the payment of the bequest to E. hereinafter named.” The bequest to E. was of such a sum as would produce an annual income during her life of §150. Reid, that this specific bequest was not a charge upon the real estate; but it appearing that the widow had come into possession of sufficient personal estate to make provision for its payment, and had elected to take under the will, it was noterror to render a personal decree against her for the payment of the amount due on the bequest, and to enforce future compliance with the bequest, the" court might order the widow’s interest in the lands sequestered.</p> <p>2. Residuary legatee—Sequestration op lands.—The testator’s daughter was made residuary legatee, after the death of the widow, of all the lands and personalty. Reid, that it was competent for the court to make the payment of this legacy a charge upon all the interest of the widow, but that the court erred in ordering a sequestration of the lands for the payment of the specific legacy to E. for a longer period than the life of the widow. By the terms of the will, the residuary legatee will become charged with the payment of this specific legacy, but until she comes into possession this liability will not attach.</p>

<p>Error to the Circuit Court of Jersey county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Evidence—Burden of proof.—It is a fundamental rule in judicial determinations, that to enable a plaintiff to recover, he must support his alleged cause of action by a preponderance of testimony.</p>

<p>Appeal from Alton City Court; the Hon. IIenky S. Baker, Judge, presiding.</p>

<p>1. Replevin—Plea of property in defendant—Evidence.—Under a plea of property in defendant, the defendant has a right to show hv what means he came into possession of the property, and his title thereto.</p> <p>2. Burden of proof.—In replevin, where the defendant pleads property in himself, the burden of proof is upon the plaintiff to show his title to the property, or his right to the possession.</p>

<p>1. Garnishment— Form of judgment.—In garnishment the judgment should be in favor of the defendant in execution for the use of the plaintiff against the garnishee.</p> <p>2. Foundation for garnishment proceedings—Return of execution—Affidavit.—To give the court jurisdiction in garnishment there must have been a return nulla bona of the execution, and a proper affidavit, under the statute filed. While the Circuit Court is a court of general jurisdiction, and entitled to all presumptions in favor of its common law jurisdiction, this presumption ceases when it undertakes to administer a statute passed in derogation of the common law.</p>

<p>Appeal from the Circuit Court of Clay county; the Hon. John H. Halley, Judge, presiding.</p>

<p>Error to the County Court of Jackson county; the Hon. George W. Andrews, Judge, presiding.</p>

<p>Ebeob to the Circuit Court of Jackson county; the Hon. Monroe 0. Cbawfobd, Judge, presiding.</p>

<p>Contract op sale—Rescission.—A party seeking to rescind, a contract for the sale of a machine, on the ground that it did not work as warranted, must return or offer to return it within a reasonable time after he discovers its defects. He cannot use the machine through the whole season, lay it aside, and then defeat a recovery of the contract price on the ground that it did not work well.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Amos "Watts, Judge, presiding.</p>

<p>1. Highway—Dedication—Not inferred from use.—In this State, no inference or conclusion will be drawn against the owner of unenclosed land, which is traveled, to establish an easement in the public. The voluntary use of a way by the public, with the assent of the owner, is not of itself sufficient to make it a public highway; but such use and assent, in connection with proof of actual recognition and repair by the public authorities, may warrant a jury in finding that the way is a public highway.</p> <p>2. Highway by prescription.—The mere fact that people may have traveled over the way in question, and that it may have been denominated a public highway, does not make it such, even though such travel may have been permitted without objection for more than twenty years. So, where the way in question was but a short piece of road, having no connection with prominent points, was used only by a neighborhood, and had never in any way been regarded by the public authorities as a public highway, it cannot be considered as a public highway in the legal sense of tire term.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Error to the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding</p>

<p>Error to the Circuit Court of Jackson county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

<p>Ebbob to the Circuit Court of St. Clair county; the Hon. William H. Snydeb, Judge, presiding.</p>

<p>Error to the Circuit Court of St. Clair county; the Iloa. Amos Watts, Judge, presiding.</p>

<p>Appeal from tlie Circuit Court of Bond county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Error to tlie Circuit Court of Randolph county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Bonds in aid of railroads—Conditions of subscription—Nonperformance by railroad—Enjoining tax.—Where the conditions upon which a town was authorized to subscribe for a railroad, were that such road should be built through the township within one-half mile of the court house, and should terminate at or near the city of V., the building of a road across one corner of such township and terminating at a small village nine miles from V. is not a substantial compliance with the conditions of the vote for subscription, and bonds issued in pursuance of such vote are invalid and no tax can be collected to pay interest thereon though they may be in the hands of innocent holders.</p> <p>2. Recitals—Estoppel.-—A bond reciting that it is issued by virtue of an Act to incorporate the P. & D. R. R. Co. and in accordance with the vote of the electors of said town, although it may preclude an inquiry as to whether an election was held and a vote authorizing the bonds to issue, yet it could not conclude an inquiry into the performance of a condition that was to be performed after the bonds issued. Such a conclusion would be in direct conflict with the statute of 1869.</p> <p>8. Conditions imposed by town.—The statute of 1869, giving to towns the right to prescribe conditions upon which subscriptions should be made or bonds issued, and declaring that such bonds or subscription shall not be valid and binding until the conditions shall have been complied with, applies to the bonds under all circumstances, in whosesoever hands they may be.</p>

<p>Appeal from the County Court of Clay comity; the Hon. W. P. Mubpi-iy, Judge, presiding.</p>

<p>Sale oe intoxicating liquor—Remote cause.—The har-tender of appellant sold liquor to B, and an altercation arising, the bar-tender threw a glass at B. which missed him and injured appellee. Held, that the injury complained of is not in a legal sense the natural and proximate consequence of the alleged act of appellant in selling the liquor. That it is a matter of speculation whether the same injury would not have been sustained if defendant had not sold the liquor.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the . Hon. William H. Snyder, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Charles T. Ware, Judge, presiding.</p>

<p>Conveyance to defbaud creditors—Evidence.—The case is reversed by reason of the insufficiency of the evidence to establish the bonafides of the conveyance from, father to son. It appearing that father and son lived together, the father, being in debt, conveyed all his property to his son, a young man without means, for an expressed consideration of three thousand dollars, no payment or means of payment being shown.</p>

<p>Appeal from the Circuit Court of Perry county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Execution cannot issue against municipal cobpobation,—The statute prescribes the manner in which a judgment against a municipal corporation may be enforced, and it is error to award an execution on such a judgment.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snydeb, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>1. Fixtures—Building eob trade—When may be removed.—A temporary building, erected for the purposes of trade, and with the intention of removing the same, does not become a fixture. If the building was erected with an understanding had with the owner o'f the land, that it might be removed, it can be taken away after his death, if done within a reasonable time.</p> <p>2. Damages for removing.—The appellee having only a life estate in the premises, can, in case of a removal of the building, only recover damages to the possession—such damages as were sustained to her life estate—and not for the full value of the building. .</p> <p>3. Evidence—Death of party—Husband and wife.—The widow of the testator was not a competent witness to testify in reference to statements made by her deceased husband during his life, in relation to his partnership business.</p>

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. John V. Eustace, Judge, presiding. Opinion filed December 21, 1878.</p>

<p>Action against counties — Declaration—Cotimon counts—In an action against a municipal corporation, as a couniy, there are many different causes of action which may be proved under a declaration containing only the common counts, and such a declaration is not obnoxious to a general demurrer.</p>

<p>Appeal from the County Court of Iroquois county; the Hon. Mastiff B. Weight, Judge, presiding. Opinion filed January 3, 1879.</p>

<p>Error to the Circuit Court of Kane county; the Hon. T. D. Murphy, Judge, presiding. Opinion filed January 7, 1879.</p>

<p>Practice—Further time to file record.—The motion for further time not being made within the time limited for filing the record, it is refused.</p>

<p>Error to the Circuit Court of Kane county; the Hon. H. H. Cody, Judge, presiding. Opinion filed January 14, 1879.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding. Opinion filed January 14, 1879.</p>

<p>1. Equitable assignment—An order or draft drawn for the whole of a particular fund operates as an equitable assignment of that fund, and after notice to the drawee it binds the fund in his hands.</p> <p>2. Acceptance by drawee.—But where the order is drawn either on a general or particular fund for a part only, it does not amount to an assignment of that part, or give a lien against the drawee, unless he consents to the appropriation by an acceptance of the draft.</p> <p>3. Assignee must give notice.—It is the duty of the assignee, if he would protect himself, to give prompt notice of the assignment to him, and a failure to do so, although it would not destroy his right, would expose it to the danger of being overreached by a subsequent assignment to another, or to the rights of an attaching creditor of the assignor.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. .Tortatt MoRobeets, Judge, presiding. Opinion filed January 14, 1879. ■</p>

<p>Appeal from the City Court of Aurora; the Hon. Fbank M. Annis, Judge, presiding. Opinion filed Janaary 14, 1879.</p>

<p>1. Trespass—Does Rurmrrre at larue—Authority op city to prohibit.—The legislature, by virtue of its police power, may confer upon a city authority to pass an ordinance declaring what shall be considered a nuisance, and for its abatement; and may also, when necessary for the public safety, authorize dangerous animals to be summarily destroyed by city authorities without notice to the owners.. The killing of a dog running at large in violation of an ordinance prohibiting the same, is not such an unauthorized proceeding as will create a liability for its loss.</p> <p>2. Practice—Judgment where issue undisposed oe.—It was error to render final judgment on demurrer while the issue on a plea of one defendant remained undisposed of.</p>

<p>Appeal from the Circuit Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding. Opinion filed January 17,1879.</p>

<p>Appeal from the County Court of Grundy county; the Hon. Samuel B. Thomas, Judge, presiding. Opinion filed January 17, 1879.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. John Burns, Judge, presiding. Opinion filed January 17, 1879.</p>

<p>Appeal from the County Court of Woodford county; the Hon. J. M. McCulloch, Judge, presiding. Opinion filed January 17, 1879.</p>

<p>Error to the Circuit Court of "Whiteside county; the Hon. William Brown, Judge, presiding. Opinion filed January 17, 1879.</p>

<p>' Appeal from the Circuit Court of La-Salle county; the Hon. Josiah MoBoberts, Judge, presiding. Opinion filed January 17, 1879.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Josiaii MoRoberts, Judge, presiding. Opinion filed January 17, 1879.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. D. McCulloch, Judge, presiding. Opinion filed May 2,1879.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. D. McCulloch, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>Promissory note—Payment —If a party would be secure in paying negotiable paper to a payee or assignee, before or after maturity, he must see to it that he pays to a holder of the note, and not to one who has been, but is not when payment is made. He should ask to see the notes before he pays them, and should take them up when paid.</p>

<p>Error to the City Court of Aurora; the Hon. Frank M. Annis, Judge, presiding. Opinion filed Hay 2, 1879.</p>

<p>Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>Error to the Circuit Court of Will county; the Hon. ■Tosía T-r McBobeets, Judge, presiding. Opinion filed May 2,1879.</p>

<p>Mistake in a deed—Power of court to correct.—B., to induce his son to relinquish a contemplated removal to Nebraska, told him if he would remain he would purchase for him a forty-acre tract, which he accordingly did, and the son made improvements upon the house and farm, and put in crops, but without actually moving upon the premises. By mistake, as claimed by complainants, B. was named as grantee in the deed instead of his son. The son died shortly after, and on a bill filed by his heirs to correct mistake in the deed, held, that the evidence tending strongly to show the • intention of the parties that the land should he conveyed to the son in fee, a court of equity would correct the mistake and order a conveyance of the fee to the heirs of the son.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. K. J. Pillsbury, Judge, presiding. Opinion filed May ' 2, 1879.</p>

<p>Gaming—Note given nor entrance eee.—The offer by an association of a purse of $600, divided into four parts, to be. given to the winning horses in a race to be run under the rules of the association, is not within the statute prohibiting gaming, any more than the offer of a premium at an agricultural fair ; and a note given for the entrance fee for one of the competing horses is not void under the statute as being a gaming contract.</p>

<p>Creditor’s bill—Conveyance in fraud of creditors.—T. executed to R. and D. his promissory note with warrant of attorney for §2,000, upon which judgment was confessed three days after its execution, and T.’s property levied upon and sold under the judgment. At the time of giving the note T. was not indebted to the payees, R. and D., but there was a contingent bability to them by reason of being securities on certain bonds executed by T. as principal. Held, that the judgment of R. and D., to be valid against claims of creditors of T., must have been founded upon a pre-existing indebtedness ; that there being nothing due them, the proceeding was a fraud upon the creditors of T., and as to them a nullity; that the money in the hands of the sheriff having arisen from a sale of T.’s goods under the judgment, and not deposited with him to indemnify R. and D. for being security on T.’s bonds, could not be held for that purpose as against T.’s creditors.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. D. McCulloch, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>1. Debtor and creditor—Preference.—A debtor has an undoubted right to secure one creditor so far as he is able, even if in so doing he defeats the collection of the claim of another creditor, unless his real purpose in so doing was to hinder or defeat the other creditor in the collection of his claim.</p> <p>2. Knowledge by preferred creditor of the claim of another. —The mere knowledge by the creditor thus secured of the existence of other claims against the debtor will not affect his rights, there being no proof that in taking security for his debt he had any other object in view than to secure himself.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Arthur A. Smith, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>Replevin—Return oe property.—It is error to award a return of the property replevied, on dismissal of the replevin suit, where it appears the plaintiff never obtained possession of the property under the writ. So, where defendant was in the act of removing a house and barn when they were seized in replevin, moved back into the same field from which they had been taken, and left in possession of the defendant, the object of the replevin writ has never been executed, there is nothing to return, and a writ of retorno habendo should not have been issued.</p>

<p>1. Writ—Misnomer—Wsen not material.—A writ of attachment was sued out-in the firm name of Clayburg, Einstein & Co., but as there was a declaration filed in the cause in which the full names of the members of the firm were given, and an appearance by the defendant, the irregularity in the writ-became unimportant. It was not such an irregularity as would render the writ void or sufficient to reverse.</p> <p>2. Levy of writ before deed recorded.—The writ Of attachment was levied upon the land at eleven o’clock a. m., and. the deed by defendant conveying the land to another, filed for record at two o’clock p. m. of the same day. The levy of the attachment being prior in time, is stronger in right and must prevail, there being no evidence that plaintiff in attachment had actual or constructive notice of the existence of the deed.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Josiah McEoberts, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>1. Deed—Conveying right op flowage,—A deed of a right to flow land is not a mere license revocable by the grantor. Nothing short of a re-conveyance or non-user for twenty years would destroy the effect of the deed, so that the land would revert to the grantor.</p> <p>2. Foreclosure of mortgage—Covenant against incumbrances.— Where the owner of land granted by deed the right to flow the land, and subsequently conveyed to another the title in fee of such land, receiving back a mortgage to secure the deferred payments, forecloses such mortgage for nonpayment of certain of the notes, his grantee, the defendant in such foreclosure, may have the amount of damages sustained by him by reason of such flowage, applied in reduction of the notes due and subsequently maturing. Such an easement constitutes a breach of the covenant against incumbrances, and is a proper defense to the notes.</p>

<p>1. Slahdeb oe title.—An action of slander of title may be sustained where the slander is false and malicious, and where special damage results from speaking the slanderous words, such as preventing the sale or leasing of the land. And where the action is against one interested in the title, if the motive for speaking the words be not reasonable self-protection, but malice, without probable cause, there may be a recovery.</p> <p>2. Punitive damages.—In actions of this nature there may be evidence of such a wanton, willful and malicious attempt to injure the owner of the land, as will justify the finding of exemplary or punitive damages, but the present case is not one, from the evidence, calling for anything more than compensatory damages.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Josiah MoRoberts, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>1. Bridge between adjoining towns.—To give a right under the statute to one town to build a bridge at the joint expense of both, a piior contract between the commissioners of highways for the joint building of such bridge is an essential pre-requisite. No liability attaches to the commissioners refusing, even upon notice, to build without their previous consent, evidenced by contract.</p> <p>2. How CONTRACT SHOULD BE EXECUTED—MAJORITY OE COMMISSIONERS.—The contract for the building of such a bridge should be executed by a majority of the commissioners of each town, acting as a separate body. The statute does not contemplate a joint meeting of the two boards of commissioners, at which meeting a majority of the six can bind both towns. Bach town must be bound by the official action of its own hoard of commissioners.</p> <p>3. Contract not signed by majority.—In this case the contract was signed by only one member of the board of commissioners of one of the towns, and therefore such town is not bound by the contract. Nor does the fact that another commissioner of such town, after the completion of the work, signed the contract, create a liability against the town where none existed before. Commissioners of highways cannot bind their town by individual acts. They can only act as an official body, and when met for the transaction of public business.</p>

<p>1. Pbomissoby note—Defense—Evidence undeb.—Appellants being sued upon a promissory note, pleaded; that in consideration of procuring appellee a certain situation, he agreed to receive in satisfaction of the note, shares of stock in the Enameling Co. and some lots then held by the Improvement Association; that the situation was procured, and the shares of stock and deed of the lots tendered to appellee. Issue was joined upon these pleas and upon the trial appellants offered evidence tending to show a chain of title iroux the government to the Improvement Association of the lots tendered, which evidence was excluded by the court. Held, that under the issues It became material for appellants to show a good title to the land in the Association, and the offered evidence should have been admitted.</p> <p>2. Right of cobporation to hold land.—Held, that the right of the Association to hold real estate being prohibited by statute, was one with which appellee had nothing to do, he having agreed to accept the lots of the Association it did not become him to dispute its right to make the conveyance.</p>

<p>Appeal from the Circuit Court of McHenry county; the Hon. C. W. Upton, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Josiah McRoberts, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>Appeal from the City Court of Aurora; the Hon. Trane M. Annis, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Josiah Mo Roberts, Judge, presiding. Opinion filed May 2, 1879.</p>

<p>Statement—Set-off.—Appellee sued appellant on a note for $850. Appellant pleaded inter alia that the husband of appellee, being indebted to appellant, procured an insurance on his life, and delivered the policy to appellant to secure payment of said debt; that appellee, desiring to secure the insurance on her husband’s life, agreed with appellant to pay to him such sum as would be found due from her late husband to appellant upon a settlement of their partnership matters, in consideration that he would assign said policy to her, which was done, the money collected, and $850 paid to appellant, for which said note was given. Held, that the agreement constituted an original contract between appellant and appellee, and that appellant’s set-oif of the amount due from the deceased husband should have been allowed against the note.</p>

<p>1. Municipal officers—Butt as to sidewalks.—Trustees of villages are bound to exercise ordinary care and diligence to keep the sidewalks in the village safe, and if in the exercise of this duty they bestow ordinary care and diligence, no liability arises, though the sidewalk may not be reasonably safe.</p> <p>2. Practice—Instructions must state the law correctly.—In cases where there may be doubt whether substantial justice has been done, each instruction of appellee or defendant in error must state the law correctly, or there should be a reversal.</p> <p>3. Notice of defects—Where sidewalk not constructed by city. —Where the sidewalk is constructed by the property owner, and not by the city, notice to the city of its condition is requisite to charge the city with liability.</p> <p>4. Instruction assuming fact proved .—An instruction which assumes that the defendant neglected to exercise ordinary care and diligence, when the fact of such neglect was contested, is erroneous.</p> <p>Semble—That it is improper to inform the jury in each instruction that the plaintiff claimed a certain amount, and to caution them as many times that they should be careful to allow no more.</p>

<p>Pleading.—To an action declaring in the common counts for money paid, etc., the defendant pleaded that the supposed cause of action was for a one-third part of certain judgments paid by plaintiff, which judgments were rendered against said defendant and others in vacation upon certain promissory notes with warrants of attorney, and that at the time of executing the notes and warrants of attorney the defendant was a minor, etc. Held, Leland, J., dissenting, that the declaration being upon an implied promise to pay his proportion of such judgments the plea was a sufficient answer to the declaration, though not averring infancy at the time of the promise alleged in the declaration.</p>

<p>Appeal from the Circuit Court of Will county: The Hon. Francis Goodspeed, Judge, presiding, Opinion filed May 6, 1879.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.</p>

<p>Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding..</p>

<p>Eeeob to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.</p>

<p>Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. W. W. Fabwell, Judge, presiding.</p>

<p>1. New promise after discharge in bankruptcy—Sufficiency.— A different rule prevails 'as to the revival of a debt discharged by bankruptcy, and one barred by the Statute of Limitations. In the former case, the promise to pay must he shown to be clear, distinct, unequivocal and express. Neither payment of interest, nor part- payment of principal, nor declaration of intention to pay, will suffice.</p> <p>2. Part payment as evidence.—The fact of part payment would be admissible for the purpose of identifying the debt in reference to which an express promise to pay, otherwise of uncertain application, might be proved, but not as tending of itself to prove a sufficient promise to pay the balance.</p>

<p>1. Payment—Application.—In the absence of any agreement between the parties to make the application of an open, unstated account between them in payment of notes held by one against the other, no such application could he made.</p> <p>2. Pbomissoby note—Account — Statute of limitations.—And where suit was brought upon the notes within sixteen years, the limitation of the notes, and it appeared that more than five years had elapsed after the cause of' action upon the account had accrued, the Statute of Limitations operated against the account, and in the absence of any agreement to that effect, the account will not he considered as paid by an application upon the notes.</p>