Volume 30 — Illinois Reports

The defendant in error sued the Ohio and Mississippi Railroad Company, in the Circuit Court of Clinton county, for injuries received on one of the trains of that company. The first count of the declaration avers, that plaintiff was a work-hand in the employ of the defendant, on the 29th of June, 1854, and was, as such work-hand, on the cars- of defendant, to be safely carried from Shoal Creek station, in Clinton county, to a point at or near Carlyle prairie, in said county.

Dependant in error filed a bill in chancery in Champaign Circuit Court, at April term, 1861, against said plaintiff in error, to foreclose a mortgage alleged to have been executed by said Harmon to said Campbell, to secure purchase money for land described in said mortgage.

This cause originated before M. Jones, sheriff of the county of Coles, and was a • trial of the right of property, in which the said George W. McKee was claimant, and William C. Ludwig, Jesse S. Kneedler, and William R. Hamlin, were plaintiffs in execution, when a trial was had and a verdict rendered against the said claimant, and in favor of the said defendants ; from this judgment appeal was taken, and bond filed on the 15th of September, 1860, by which the cause was…

This was an action of trespass, commenced by appellee against appellants, at the December term, 1861, of Macoupin Circuit Court, for entering the house of plaintiff, and injuring, tearing, spoiling and destroying certain articles of furniture in the same.

The record in this cause shows the following facts: The president, directors and company of the Bank of Illinois recovered judgments in the Lawrence Circuit Court, against Josiah R. Wynn and others, as follows : At September term, 1843, against Archibald George, Jackson B. Shaw, and Josiah Wynn, for $246.75, and costs, on which execution was issued on the 11th of September, 1843, on which nothing was. made.

This was a suit commenced in the Circuit Court of Perry county, by the defendant in error against the plaintiff in error, together with, Oliver H. Burton and Albert F. Crain, at the April term, 1851. The declaration was in case, with a count in trover. At the April term, 1861, at the instance of Clement, a rule nisi was entered against plaintiff Brown, to give security for costs, which rule was discharged at the same time by agreement only of plaintiff in error.

This was a suit in equity, by defendants in error, to enforce a trust against plaintiff in error.

This was a bill in chancery, filed in the Circuit Court of Marion county, by defendants in error, as complainants, against James Marshall, James A. Davenport, John V. Davenport, Thomas F. Houts, Willis D. Green, William D. Haynie, and Isham N. Haynie, defendants.

<p>APPEAL PROM LAWRENCE.</p> <p>Thomas filed a bill against the heirs of Dubois, claiming title to a lot as trustee, and made Wise, the occupant of the premises, a party defendant. He obtained a decree finding title in him as trustee, and a judgment for costs against all the defendants. An execution was issued under this judgment for costs, and under it the same premises were sold to Thomas. Bowman having obtained a judgment against all the defendants in the chancery suit, except Wise, redeemed from Thomas’ sale, and the same premises were sold under his execution to Bowman and Harrow. Thomas accepted the redemption money. Upon ejectment brought for the premises by Bowman and Harrow, it was held, that, as the decree found the title to be out of Dubois' heirs and in Thomas, -and as the execution under which Thomas bid in the property was against Wise also, who was in possession, Thomas took nothing by this sale except Wise’s possessory title, and could still assert Ms title under the decree, as against the heirs and those claiming in succession to them.</p> <p>The receipt, by Thomas, of the' redemption money," from those holding an execution against the heirs of Dubois, would not estop him from setting up his title under the decree, against the purchasers under that execution, unless he had actually adopted a line of conduct which had induced them to purchase under it.</p> <p>The title of the Dubois heirs having been divested by the decree before either of the executions were issued, a sale under the last execution against them could not pass any title to the purchaser. If the acceptance of the purchase money should estop Thomas from setting up Ms title, tMs estoppel could not vest a legal title where none existed before, so as to enable Bowman and Harrow to maintain ejectment.</p> <p>The receipt of the redemption money by Thomas under the circumstances, was no admission of Bowman’s right to redeem. Thomas being a mere trustee, had no right to make admissions to the injury of his cestui que trust.</p>

<p>APPEAL PROM PULASKL</p> <p>The practice is well settled in this State to move to suppress depositions of nonresident witnesses, after leave has been obtained to open them, and before the trial is entered upon.</p> <p>The court will usually notice only such objections as are specially made before the trial.</p> <p>Notice to take a deposition, accompanied by a copy of the interrogatories, must be given to the adverse party, ten days before the dedimus potestaiem, is sued out, and an affidavit that notice and a copy of the interrogatories was given to the adverse party ten days before a specified day, is insufficient. The court cannot know that that notice was given ten days before suing out the dedimus.</p> <p>The statute, as to talcing depositions of non-resident witnesses, must be substantially complied with, and no material deviation therefrom will be allowed, unless by agreement and consent, or waiver of the parties to the suit.</p>

<p>ERROR TO SANGAMON.</p> <p>Township treasurers, under our statute, are made insurers of the funds coming to their possession, and nothing can reheve them from their obligation to safely keep and pay over such funds, but the act of God, or of the public enemy.</p>

This was an action of ejectment, brought bythe appellant against the appellee, in Brown Circuit Court, for the recovery of the south-west quarter of the south-west quarter of Section four, in Township one south, Range three west of the fourth principal meridian, and removed, by change of venue, to Adams county, and placed upon the docket of the Circuit Court of that county, on the 30th of May, 1861. Transcript from Brown county filed in Adams Circuit Court, May 30, 1861.

This was an action of ejectment, commenced A. D. 1861, in Fulton Circuit Court, by the plaintiffs in error, W. C. Goudy, 8.

<p>APPEAL PROM JACKSON.</p> <p>In. an action against a railroad company, for injury to stock, if negligence is clearly proven on the part of the plaintiff, then the defendant is only responsible for gross negligence, which implies willful injury.</p>

This is a bill in chancery, filed in the Iroquois Circuit Court, by the complainants, against the defendants, to set aside certain judgments rendered and entered, in the County Court of Iroquois county, against certain lands described in the bill of complaint, and, also, to cancel two certain certificates, given at the time of the sale of said lands; one to Michael Hogle, and one to one A. G. Willard, and afterwards assigned to Hogle, by Willard.

This was a bill filed in the Alexander Circuit Court, by the defendants in error, at the June term thereof, 1860, for an injunction to stay the plaintiffs in error from proceeding to collect the county taxes assessed by the County Court, upon property within the limits of the city of Cairo. The bill alleges that complainants were owners of Cairo property in 1859. That by act of 1857, of the legislature, the city was incorporated.

This case presents the same questions as the preceding, and the decision is the same. This was a suit in chancery, commenced by the defendants in error, in the Alexander Circuit Court, June term, 1860, by bill in chancery for injunction. Defendants charge they were residents and property holders of the city of Cairo, on the first day of May, 1859. That in 1857 Cairo was incorporated as a city.

<p>APPEAL FROM ST. CLAIR.</p> <p>The plea of ml tiel corporation is a plea in bar, and should not be stricken from the files because a plea to the merits has been interposed.</p> <p>Where a corporation sues by a wrong name, the defendant can only take advantage of it by & plea in abatement; but where there is no misnomer, the defendant can only plead nul tiel corporation in bar.</p> <p>A defendant who wishes to avail himself of a postponement of the time at which his liability matures, must aver the consent of the plaintiff to such postponement, otherwise his plea is bad.</p> <p>The loss of an instrument of writing does not change the contract contained in it. The liability of the parties remains the same.</p>

This was an action of replevin, instituted to recover possession of two horses, which Fry had levied on (he being deputy sheriff of Greene county) as the property of one William Briscoe. The declaration was for the wrongful detention of said property. The plea is the general issue, with an agreement of attorneys that all special matters in bar of suit should be allowed under said plea. On this issue trial was had, and a verdict for defendant.

This was an appeal case from a justice of the peace, tried in the St. Clair Circuit Court, by the court, by consent, át its March term, 1862. Court found in favor of Sutter, the plaintiff below, $22, for which judgment was rendered, and for costs. Anstedt appeals to this court, and assigns for error, that court below erred in finding for appellee, and in refusing to appellant a new trial.

This was an action of assumpsit upon two promissory notes, dated January 2,1860, made by Weible, payable to himself, and by him indorsed to plaintiff; one for §2,365, payable in one year, and the other for §2,365, in two years from date. The declaration has also the common money counts.

This case was decided by this Court at the January term, 1862, and is again brought before it on an application for a re-bearing. The facts are as follows: Plaintiff filed bis declaration in ejectment, against Henry R. Richardson for the recovery of the undivided half of the ■east twenty feet of lot No. 7, in block No. 10, city of Springfield. Defendant pleads the general issue, and Roll substituted, and possession of premises by him admitted.

This was a bill for divorce, filed by defendant in error against plaintiff in error.

This was a suit by plaintiff in error before police magistrate of the city of Quincy, for violation of city ordinances regulating the sale of fresh meats in the city of Quincy. Defendant in error moved to dismiss suit for want of a bond for costs. Motion overruled. Trial, and judgment against defendant in error. Appeal by defendant to Circuit Court. Defendant renews motion to dismiss in Circuit Court, and cause dismissed ; and judgment against plaintiff for costs of suit.

This was an action of assumpsit by appellee against appellant, in the Logan Circuit Court, upon the common counts for corn, sold and delivered by appellee to appellant. The defendant filed pleas of the general issue, and payment of part and tender of the balance, upon which there was issue. Trial by jury, and verdict for $1,118.10, and judgment.

This was a bill in chancery filed by plaintiff in error, in the Madison Circuit Court, to compel a specific performance of a sale made bv defendant in error, as administrator of James Rowe, deceased. The bill alleges that Rowe, as administrator of his brother, James Rowe, deceased, obtained an order of the probate court to sell lands to pay debts.

This was an action in ejectment at the September term, 1861, of the Fulton Circuit Court, by appellees, Ebenezer Hubbard, Anthony VanDoon. and Betsy VanDoon his wife, Luther Field, and Sarah Field his wife, Samuel A. Benton, and Eliza A. Benton his wife, William Nutting, Jr., Charles Nutting, Rufus Nutting, George B. Nutting, David H. Nutting, and Mary 0.

This was an action in chancery in the Circuit Court of Shelby county.

Michael Fisohee commenced his action of ejectment against Laurent Roland, to recover the north-west quarter of the north-east quarter Section six, Township six north, Range seven west.

<p>APPEAL PROM BON'D.</p> <p>The power to correct a mistake in a writing, is as much within the scope of the jurisdiction of a court of equity, as to correct any other mistake ; and parol evidence may he resorted to, for the purpose of proving what was the real contract made by the parties.</p> <p>The writing may then be reformed in accordance with the intention of the parties, and a specific performance may then be decreed.</p> <p>It is in the discretion of the court to correct the mistake, or to leave the parties to the operation of the common law rule, which forbids the introduction of parol evidence to vary a written contract, but the power of the court will not be exercised to make the correction, without the strongest and most convincing evidence of its justice.</p>

<p>APPEAL FROM HANCOCK.</p> <p>In the following note: “ $456.15. One day after date we promise to pay Daniel Furry or order four hundred and fifty six 15-100 dollars for value received, ten per cent.,” the words “ten per cent." do not mean with interest at the rate of ten per cent, per annum.</p> <p>They are surplusage, and may be rejected.</p> <p>There is a patent ambiguity in the note which cannot be explained by parol evidence.</p> <p>in all actions ex coniradu, the plaintiff must establish his cause of action against all of the defendants. J</p> <p>Our practice act which allows a recovery against a defendant who has been served with process, while others have not, does not alter the rules of evidence.</p> <p>If the plaintiff haa set out a joint cause of action in his declaration, he must prove it as against all the defendants. It* is not sufficient to prove it only against the defendant who has been served with process.</p> <p>The proof should be the same as if all the defendants had been served, before a recovery can be had against any.</p>

Plaintiff in error, Michael Reins, was indicted by the grand jury of the Cook Circuit Court, for the crime of manslaughter, and plead “ Not guilty.” At the January term the cause was tried before Judge Manieres, and a jury. The jury found Reins guilty, and fixed the term of his imprisonment at three years. Reins moved for a new trial, which the court overruled, and also overruled Reins’ motion in arrest of judgment, and sentenced him.

<p>APPEAL PROM MADISON.</p> <p>Where a creditor receives money before it is due, on a demand drawing interest, such payment, in the absence of all agreement to the contrary, should be applied to the extinguishment of the principal.</p> <p>The rule is different after both the principal and interest become due.</p>

This was an action of ejectment, instituted in the Circuit Court of Hancock county, 1859, to recover the north-west quarter of Section 26, Township 5 north, Range 8 west, of the fourth principal meridian. On the trial the parties waived a jury, and submitted the case to the court, and thereupon the defendant admitted that he was in possession of the premises in controversy, at the time of the commencement of this suit, March 7, 1859.

The appellees brought an action of debt to the February term of the Fulton Circuit Court, claiming fifteen hundred dollars debt and five hundred dollars damages. The declaration contains eight counts.

This was an action of assumpsit in the Montgomery Circuit Court, brought by plaintiff in error against defendants in error. The declaration contains two counts. The first is a special count upon a promissory note, and the second is a count upon, account stated.

<p>ERROR TO EDGAR.</p> <p>In determining the amount of property necessary to be levied upon to satisfy an execution, the officer should take into account the probable sacrifice to which it would be subjected at a public sale.</p> <p>In an action against a sheriff for failing to collect an execution, it is no defense that the sheriff had reasonable grounds to believe, and did believe, that he had seized sufficient property. He should show, further, that he used such diligence as governs prudent men in the management of their own business. He should take property enough to allow for the probable depreciation of a public sale. And at the same time he should not make so excessive a levy as to bear on its face the appearance of oppression and unnecessary rigor.</p> <p>In an action against a sheriff for failing to collect an execution, the damages are not necessarily the amount of the execution, but only such damages as the plaintiff shall actually suffer by the sheriff’s neglect.</p> <p>In an action against a sheriff for making an insufficient levy, to satisfy an execution, the opinion of witnesses as to the value of the property taken, should not be received. Under ordinary circumstances, the amount which the property brings at the sheriff's sale, is the best evidence as against him.</p>

This was an action on the case for killing a mule, brought by the defendant in error against the plaintiff in error, in the Circuit Court of Morgan county. The declaration contained two counts.

<p>APPEAL FROM ST. GLAIR.</p> <p>The trustees of a railroad company, if they do business in the name of the company, are liable to be sued in that name, and their property is responsible for liabilities incurred while transacting the business under that name.</p>

The appellees sued the appellant in assumpsit, declaring upon the common 'counts, for lumber sold and delivered, from April 18, 1855, to March 12, 1857.

This ís an action on the case, brought by Dunaway against Thomas, for libel, based on a newspaper publication, which charged that Dunaway had been, in the State of Pennsylvania, many years before, entrusted with a drove of cattle, belonging to his father and brother; that he received the purchase money for the cattle, and did not account for the same, whereby his father and brother were broken up in their business; and that the plaintiff had brought money to Illinois shortly…

This case was tried before Silas L. Brtah, Judge, and a jury, at the March term of the Marion Circuit Court, 1862, upon an indictment for selling liquor without a license. The defendant, Edo Bennett, by his counsel, moved the court to quash the indictment, upon the following affidavit, and other grounds, to wit: STATE OF ILLINOIS, MARION COUNTY. } In Circuit Court, March Term, 1862. Edo Bennett, ais. People.} Indictment for selling Liquor without License.

This was an action of debt commenced on the 22nd day of February, A. D. 1861, by Sarah Harris, executrix, etc., against Philip Campbell, upon a note of hand, as follows, viz.: On or before the 25th day of December, 1841, I promise to pay Isaac Harris or order, Seventy-five Dollars, for value received, this 26th day of September, 1840. PHILIP CAMPBELL, [seal.] Attest, G-. P. Hill.

This was an action of assumpsit, by defendants in error against plaintiff in error. Declaration is on the common (money) counts. Plea, non-assumpsit. Trial by the court, and judgment for the plaintiffs below (defendants in error) for the sum of $730.44.

The appellee filed his declaration, in assumpsit against the appellant, in the Mason Circuit court, at the March term, 1862. The declaration contained one special count, on a note alleged to have been given by the appellant to one George England, dated October 27, 1860, due twelve months after date, for the sum of $285, and alleged that said note was duly indorsed by the said George England, to the appellee, at the time of its execution, etc.; damages $500.

This suit was instituted by assumpsit in the court below, by the appellee, against the Pittsfield and Florence Plank Road Company, and Stephen G-ay (appellant) and others, who were alleged to be stockholders in said company.

Peter Morgeesterk filed his bill in the St. Clair Circuit Court.

This was a trial of right of property, tried first before A. Poston, a justice of the peace, February 6, 1862. Birger, plaintiff in JL fa. against A. L. Carobine, had the same levied upon four stacks of wheat, January 29, 1862. Harlow claimed the property under a chattel mortgage. On the hearing before the justice, verdict and judgment was rendered against claimant. Appealed by plaintiff in error to Circuit Court.

This suit was brought before the County Court of Monroe, and appealed from that to the Circuit Court of said county, to recover against the estate of said deceased, $57.17, stipulated in a promissory note, due one day after date, and dated Nov. 14, 1838 ; also, a note for $12.68, due one day after date, and dated Nov. 14, 1838, with interest, to Horner & Hypes. The administratrix set up the statute of limitations in both counts.

<p>application for mandamus.</p> <p>The act of February 8, 1861, transferring the proceeds of the two mill tax, to the revenue fund, is unconstitutional and void.</p>

This was an action of trover, commenced in the Piatt Circuit Court, to the September term, 1861, against the said plaintiff in error, and one John Gatewood.

<p>This was an action of trespass on the case brought by the defendant in error, Morthland, to the November term, 1861, of the Macon Circuit Court.</p> <p>The declaration contains two counts. In the first, it is alleged, that on the 16th day of October, 1860, the defendant had possession and control of the “ Great Western Railroad,” and had the right to use and operate the same, and run engines and trains, etc., thereon, and that he did so use the same; that the said road had been open for use more than six months prior to the committing of the grievances, etc.; that it was the duty of defendant to erect, and keep in good repair on each side of said road, fences, sufficient to prevent horses, cattle, sheep, and hogs from getting on said railroad, except at the crossing of public roads, and within the limits of towns, cities and villages, with opening gates or bars at farm crossings, etc., and to construct and maintain, at public road-crossings, suitable and sufficient cattle-guards, etc., and to erect and maintain such fences on all unenclosed lands within five miles of any settlement, etc., and except what owners of lands had fenced, or agreed with said company to fence, etc.; that, nevertheless, defendant failed to perform these various duties, by means whereof the horse of the plaintiff, of the value of $150, strayed and got on to said railroad on the day and year aforesaid, and on divers other days since, and that the defendant, by its servants, so carelessly, negligently, and improperly run, conducted, and directed the engines and trains of defendant, that by means thereof and through such carelessness, neglect and improper conduct of said servants, run the engine upon the horse of plaintiff, by and through the neglect of defendant to erect and keep in repair, etc., and did thereby kill the said horse for the want of good fences without the limits of cities, towns and villages, and within five miles of settlements on and along said road, and for the want of cattle-guards, etc.</p> <p>The second count alleges that the horse was killed by means of the gross willfulness, carelessness and neglect of the servants of defendant in running the engines and trains.</p> <p>Plea, Not guilty.</p> <p>Trial. Yerdict for plaintiff; motion for a new trial overruled, and judgment for plaintiff, and exception by defendant.</p> <p>The evidence for the plaintiff below was as follows :</p>

This was an action of replevin, commenced before a justice of the peace, and taken on an appeal to the Circuit Court of Greene county. Ogle was plaintiff below, and replevied from Eoberts eight head of hogs.

On 22nd August, 1862, complainant Flachs filed his bill in chancery in said Adams Circuit Court, against Maurice Kelly, Clark Ohatten, Gustave Theis, Salome Theis, his wife, and Henry Grimm.

This was a proceeding in chancery for injunction and relief, commenced in the Circuit Court of the county of Fulton, to the February term, 1862. The bill alleges, that on the 12th day of July, A. D. 1858, one William Brebner became indebted unto James Pinegar, the defendant in error, in the sum of $1,760.50, secured to be paid by three promissory notes.

This was a bill in chancery filed by plaintiff in error against defendants in error, on the 5th day of February, 1858, in the Circuit Court of Cook county.

On the 30th day of March, 1855, Eunice Chapman, the appellant, filed her bill of complaint in the Cook County Court of Common Pleas, against William B. Ogden, H. Hollis Hunnewell, and Ebenezer… Held: paid to Grade & Sargent, the authorized agents of the firm of S. Welles & Co., $1,000, which covered the full amount of the balance due upon said loan, interest and expenses, after deducting the $640.42 received by Hunnewell upon the judgment assigned to him.