Volume 32 — Illinois Reports

Weit of Ebbob to the Circuit Court of Will county; the Hon. Jesse 0. Hobtost, Judge, presiding. !J This was a suit in chancery instituted in the Circuit Court by Thomas A. Mapps, the plaintiff in error, against Bernhard H. Sharpe, George H. Sharpe and George Allen.

Wbh? of Ebbob to the Circuit Court of Stephenson county; the Hon. Benjamin E. Sheldon, Judge, presiding. This was a suit in chancery, instituted in the Circuit Court on the 11th day of February, 1861, by Luitjen Luitjens, the defendant in error, against Berentje Ohling, Heike E. Ohling, Paul J. Ohling and Addo Borchers, the plaintiffs in error.

John Y. Eustace, Judge, presiding. On the fourth day of October, 1856, William C. Prouty, being the owner of certain lands in Ogle county, entered into a contract in writing for a sale of the premises to Almon Benton, for the sum of $8,500, the greater portion of which was made payable in annual installments, the last falling due on the 1st of January, 1867.

Writ op Error to the Recorder's Court of the city of Chicago; the Hon. Robert S. Wilson, Judge, presiding. The plaintiff in error, Jeff. Hildreth, was tried at the June Term, 1862, of the court helow, upon an indictment charging him with having stolen ten one hundred dollar bank bills, and twelve hundred and seventy dollars in current bank bills, of the value of $1,270.

Writ or Error to the Circuit Court of Kane county; the Hon. Isaac Gr. Wilson, Judge, presiding. The facts of this case are sufficiently set forth in the opinion of the Court.

Writ of Error to the Superior Court of Chicago. John H. Brown being indebted to Theodore P. Case, the defendant in error, in the sura of $2,500, on the 23d day of February, 1862, executed a mortgage to the latter to secure the same, upon certain real estate situated in the city of Chicago. This mortgage conferred the power of sale upon Case, the mortgagee, in the event of non-payment.

Writ or Error to the Circuit Court of Peoria county; the Hon. William Kellogg, Judge, presiding. Samuel Barton, Jonathan Barton and Simeon Barton, the plaintiffs in error, exhibited their bill in chancery in the court below, against William S. Moss.

<p>1. New trial —finding against the evidence. Where a cause was tried before the court, without a jury, upon questions of fraud and want of consideration, the Supreme Court will not disturb the finding below upon the facts, without the strongest reasons.</p> <p>2. Eraud—who can take advantage of it. Semble, where a sale of properly is •made by an agent, the transaction being entirely fair as regards the purchaser, the latter can take no advantage of any fraud which may have been committed by the agent against his principal.* </p> <p>3. Consideration — what is sufficient. Where an agent is permitted to retain for himself ah- he may obtain beyond a stipulated sum for property sold for his principal, and, upon making the sale, joins the purchaser ini an obligation to secure the principal in the purchase-money, and also makes a chattel mortgage on his own property for the same purpose, he may take a note in his own name and for his own benefit, from the purchaser, for the excess which he was allowed to retain, and there will be a sufficient consideration in the property sold and in the risk he incurred in becoming security to support it.</p>

Writ of Error to the Circuit Court of Tazewell county; the Hon. Jambs Harriott, Judge, presiding. The only question in this case, necessary to he noticed here, arises upon the refusal of the court below to continue the cause at the instance of the defendants. The action was assumpsit, instituted by Almon Gr. Danforth against Benjamin E. Miles and others, to the September Term, 1862, of the Circuit Court.

Charles B. Lawrence, Judge, presiding. This was an action of forcible entry and detainer, commenced by John Glenn, the appellee, against Jerome Hardisty, the appellant, on the 15th day of December, 1862, by filing his complaint before a justice of the peace of Warren county.

Writ or Error to the Circuit Court of Woodford county; the Hon. Samuel L. Eichmokd, Judge, presiding. On the 9th day of May, 1860, Ephraim Potter, being owner of certain lands lying in Woodford county, sold, and entered into a contract in writing to convey the same to Lemuel Burger, his heirs or assigns, upon the payment of the purchase-money, amounting to one thousand and seventy-three dollars, for which Burger executed his note, with security.

Writ or Error to the County Court of 'Grundy county; the Hon. Colquhotot Grant, Judge, presiding. This was a suit in chancery instituted in the court below by James Heatherwick against his wife, Margaret, praying for a divorce. Such proceedings were had in that court that a decree for a divorce was granted. Thereupon the defendant below sued out this writ of error, and now insists that the County Court of Grundy county had no jurisdiction of the subject matter of the suit.

S. W. Harris, Judge, presiding. This was an action of assumpsit, instituted in the court below by Delos W. McConnell, against TJri Osgood.

<p>1. Opening degree—when only constructive service is had. When a defendant in chancery, who has only had constructive notice of the suit, by publication, and against whom a decree has been rendered, petitions the court, under the provisions of the fifteenth section of the Chancery Act, to be heard touching the matter of such decree, it would be error to vacate or set aside the decree in the first instance, upon the application; the statute simply requires that, notwithstanding the decree, the party thus situated shall be heard.</p> <p>2. Receiver in chancery—definition. A receiver "is defined to be an indifferent person between the parties, appointed by the court, and on behalf of all parties, and not of the complainant or one defendant only, to receive the thing or property in litigation, pending the suit.</p> <p>3. Same—in what cases appointed—and at what stage of the proceedings. The power to appoint a receiver is most usually called into action either to prevent fraud, save the subject of litigation from material injury, or rescue it from probable destruction; and there is no necessity to appoint a receiver except for one of these purposes.</p> <p>4. The court has no jurisdiction to appoint a receiver unless a cause is depending, save in peculiar cases, such as infancy or lunacy.</p> <p>5. The fact that the stockholders of a corporation refuse to aid the company, or advance means to relieve it from pecuniary embarrassments, even when called upon to do so, furnishes no ground for interfering with the corporate property, by putting it in the hands of a receiver, since it was in the power of the trustees to sell out the stock of the delinquent holders.</p> <p>6. A receiver is not usually appointed before an answer is put in, unless fraud is clearly proved by affidavit, or it be shown that imminent danger would ensue, if the property is not taken under the care of the court. There must be strong special ground to induce the court to interfere in this way before an answer.</p> <p>Where a default is entered, the rule would doubtless be, to require affidavits, before the property shall be taken out of the custody of its true owner.</p> <p>7. Same — of his qualifications. Where a receiver was appointed who was the legal adviser of the partj at whose instance the appointment was made, in relation to the subject matter of the suit, and also of the owner of the property sought to be affected, and was the largest single creditor of such owner, he was held not to be disinterested. All these disqualified him, and he should not have been appointed.</p> <p>8. Same — os to necessary parties. It is indispensable that he, whose property is to be taken from him and placed in the hands of a receiver, should be a party to the pending suit, that he may resist the application.</p> <p>9. So where a bill was filed by one of several parties interested in a common business enterprise, against the others who claimed to have become organized as a corporation, the complainant claiming that the company was not a corporation but a simple copartnership, and asking the court so to declare, and to dissolve the partnership, and appoint a receiver to take charge of the effects of the company and settle up its affairs, it was held erroneous to appoint such receiver without making the corporation, as such, a party to the suit. The court had no jurisdiction to deprive the company of its property, and dissolve it, when the company was not present to defend itself. “All bodies should be allowed the privilege of being present at their own dissolution.”</p> <p>10. Pabties—questioning the franchise of a corporation. Any inquiry set on foot, no matter by whom, questioning the franchise of an incorporated company, renders it indispensably necessary that the corporation be made a party to the proceeding.</p> <p>11. Non-joinder op parties—when it is error. The non-joinder of a mere formal party, cannot, generally, be assigned as error; but that of an indispensable party can be.</p> <p>12. Who may complain of nonjoinder of parties. When an individual member of an incorporated company exhibits his bill in chancery against the remaining members of such company, as individuals, without joining the corporation as a party, the object of the bill being to take away its franchise, the individual defendants have such an interest in this franchise as to enable them to assign as error the non-joinder of that body clothed with its exercise.</p> <p>13. Crystal Labe Ice Company — a corporation. Crystal Lake Ice Company is, prima fade, an incorporated company. Tarbell v. Page, 24 Ill. 47.</p> <p>14. Incorporations under the general law—hy whom—mwhm proceedings— and for what causes, invalidated. When a company, having taken all other steps to become incorporated under the general law, omits to file the certificate of incorporation in the office of the secretary of state, such a non-compliance with the statute might sustain a quo warranto or scire facias on behalf of the people, and oust the corporators from the exercise of their franchise, but it does not necessarily follow that it is not, as to third persons, a corporation.</p> <p>15. The omission of the stockholders of a company incorporated under the general law on that subject, to hold an election for trustees on the day fixed in the by-laws for that purpose, will not authorize the dissolution of the corporation. It is lawful to hold such election on any other day, in the manner provided by the by-laws.</p> <p>16. Nor will the fact that the company has failed to keep in their office an alphabetical list of their stockholders, showing their residence, number of shares and amount of stock paid in, tend to work a .forfeiture of their charter. Such neglect is visited by a pecuniary forfeiture, only.</p> <p>11. Nor is the fact that the company made no publication in the form of a report, in some newspaper, showing the amount of capital, the proportion paid in, and amount of existing debts, to be visited by a forfeiture. A failure to do so is made to fall on the trustees, individually.</p> <p>18. Neither will the fact that one-half of the capital stock was not paid in within one year of the organization of the Company, affect, in any way, the exercise of the corporate functions. Until the whole amount of capital stock shall be paid in, and a certificate thereof filed with, and recorded by, the county clerk, the stockholders are, severally, individually liable to the creditors to an amount equal to the amount of stock held by them, respectively, for all debts and contracts made by the company.</p> <p>19. The fact, however, that the whole of the capital stock is not paid in within two years from the incorporation of the company, will work a dissolution of the corporation.</p> <p>20. But this cannot be done by the act of one stockholder; it must be by the power granting the charter. The government creating the corporation, can alone institute a proceeding for the purpose of pronouncing the corporation dissolved.</p> <p>21. The cause of forfeiture cannot be taken advantage of, or enforced against a corporation, collaterally or incidentally, or in any other mode, than by a direct proceeding for that purpose against the corporation.</p> <p>22. Nor is the mere failure to perform the condition, ipso facto, a dissolution, but judicial proceedings, and a judgment of ouster must be had, in order to effect a dissolution.</p> <p>23. The question was presented in this case, as to the jurisdiction of a court of •chancery over a corporation, as such, at the suit of the stockholders, to control the discretion of the trustees as to the payment of the debts of the corporation, so as to relieve the stockholders from their individual liability, and to deprive the corporation of its franchises; or to declare that the body was not a corporation. After an elaborate examination of the authorities, the court expressed themselves as strongly inclined against the jurisdiction, but regarded the case made by the bill in this cause, not such an one as to warrant its exercise, if possessed.</p> <p>24. The allegation that a company, which claims to have become incorporated, has never been legally organized as a corporation, or has never existed as such, can be ascertained in no other way than by a direct proceeding by scire facias, or an information in the nature of a quo warranto in a court of law, and furnishes no grounds for the interposition of a court of chancery.</p> <p>25. A court of chancery can be specially empowered by statute to divest a corporation of its corporate character and capacity; otherwise, in all cases, the mode of proceeding to enforce a dissolution, for a cause of forfeiture, is by one of the remedies at law mentioned.</p> <p>26. A scire facias is proper where there is a legally existing body, capable of acting, but who have been guilty of an abuse of the power intrusted to them.</p> <p>21. And a quo wa/rranto is necessary when there is a body corporate de facto, who take upon themselves to act as a body corporate, but, from some defect in their constitution, they cannot legally exercise the power they affect to use.</p> <p>28. Stockholders op a corporation — are not partners. The stockholders of a company incorporated under the general law, are not partners, even as between themselves.</p> <p>29. The common law liability of copartners extends to all the copartners jointly, in the first instance, whereas by this general law of incorporation, it is made several against each stockholder, and then is made dependent upon certain contingencies.</p> <p>30. In ordinary partnerships, the members are primarily bound for all the liabilities of the concern; by the statute, the members of these incorporated bodies are not so bound, and these constitute a great difference between these associations and copartnerships.</p> <p>31. Stockholders—under what Tmo responsible. The stockholders of such a corporation, can be held responsible only in the mode prescribed in the act under which they became associated as a corporation. They are not individually liable, except under the circumstances, and for the time, specified in the act of incorporation.</p> <p>32. Limitation — as to stockholders. So it seems the question whether a proceeding against a stockholder is barred by limitation, would not be determined by the general limitation law of five years, but by the provisions of the act under which the company became incorporated, which prescribes the time of a continuance of the liability, within which it must be enforced.</p> <p>33. And it is apprehended a plea by a stockholder, who has ceased to be such, that the cause of action did not accrue within two years after he had ceased to be a stockholder, that being the time prescribed in the act for the continuance of his liability, would be held to be a good plea.</p>

Benjamin R. Sheldon, Judge, presiding. This suit was originally instituted by Lucius S. Cowles against the Illinois Central Railroad Company, before a justice of the peace in Stephenson county, for the recovery of the value of a quantity of goods which were shipped upon their road, and alleged to have been lost by them in trransitu. The trial before the justice resulted in a judgment for the plaintiff for $75.66, from which the Company took an appeal to the Circuit Court.

Writ or Error to the Circuit Court of La Salle county; the Hon. Madisor E. Hollister, Judge, presiding.

Iba O. WrLKmson, Judge, presiding. The pleadings and evidence in this cause are sufficiently set forth in the opinion of the court.

This was an action originally commenced before a justice of the peace, in Chicago, by Edward Wren against John S. Wallace, for an alleged breach of warranty of the soundness of a horse. A trial before the justice resulted in a judgment in favor of Wren, the plaintiff, from which Wallace took an appeal to the Superior Court of Chicago. Upon the trial in that court it appeared that a son of Wren exchanged horses with an agent of Wallace.

Writ of Error to the Circuit Court of Cook county; the Hon. George Manierre, Judge, presiding. James Brown, being the owner of a dwelling house known as Ho. 96 Adams street, situated on lot Ho. 3, in block Ho. 121, in the school section addition to the city of Chicago, executed a chattel mortgage upon the property to B-. D. MeFarlane, with a power of sale in the mortgagee in the event of a failure to pay the money intended thereby to be secured.

Charles B. Lawbehoe, Judge, presiding. This was a suit in chancery, instituted in the court below by Knox College against William B. Patterson, Timothy Moshier, the appellant, and others, for the foreclosure of a mortgage executed to the complainant by Patterson, on the 1st day of January, 1856, upon the north half of the north half of the south-east quarter of section number twenty-one, in township eleven, north of range one east of the fourth principal meridian, in Knox…

<p>1. Practice nsr the Supreme Court — correction of erroneous assessment of damages. Although the Supreme Court has the 'power, when the proper data appears in the record, to correct an erroneous assessment of damages upon a promissory note, and to render a proper judgment without remitting the party to his remedy in the court below, yet such power will be exercised only in extraordinary cases.</p> <p>2. In this case, the action being upon a promissory note, and a default entered, the clerk assessed the damages at a sum exceeding the proper amount by three dollars and fifty- cents, and this was assigned for error; but the party was remitted to his remedy in the court below.</p> <p>3. Parties names — orders of court. In giving the names of parties in an order of court, it is only necessary to so state them that there can be no mistake as to the cause in which the orders were entered. But if another designation be given, or other means of identification adopted, so as clearly to point out the cause in which the order is made, it answers every legal requirement.</p> <p>4. Error— as to identity of orders in a cause. Whether an order of court is so entitled as to show in what cause it was entered, is a question of identity, not of error.</p>

<p>1. Parties—plaintiff must have legal title. The party having the legal title to a promissory note must sue upon it in his own name.</p> <p>2. And the legal title to the instrument sued upon must be vested in the plaintiff at the time the suit is instituted. If the legal title is in another at the commencement of the suit, the plaintiff cannot afterwards acquire it so as to maintain the action.</p> <p>3. Assignments in blank—may he filled up. 'But if a party by purchase and delivery, has acquired a note by a general assignment, and sues upon it, he may fill in the indorsement to himself at any time previous to reading it in evidence on the trial.</p> <p>4. Same —presumption of ownership. A party holding a bill or note with a general assignment, is presumed to be the legal owner of the instrument.</p> <p>5. Special indorsement—cannot he altered. But where the indorsement is special, a holder other than the assignee named, has no right to strike it out and write another to himself over the name of the assignor, because the legal title had already vested in the assignee named in the original indorsement.</p> <p>6. Maker op note — his right to inquire as to legal title. But in any event, the maker of the note has the right to have a judgment rendered against him in favor of the legal holder, so as to become a bar to a future recovery on the same instrument.</p> <p>Y. Consideration op assignment — cannot he questioned hy the maker. In an action by the assignee of a note against the maker, it is not a question that affects the rights of the parties whether any or what consideration was paid for the note by the assignee. The equities between the assignee and his assignor do not concern the maker.</p> <p>8. Allegations and proops — total and partial failure of consideration. A plea setting up an entire failure of consideration in the note sued upon is not sustained by proof of a partial failure of consideration.</p> <p>9. Failure op consideration — what constitutes. It seems if the consideration of a note was a crop of corn, which the payee had sold to the maker, and after having received the note the payee appropriated the corn to his own use, there would be a failure of the consideration of the note.</p>

<p>1. Parties plaintiff—in trespass qua/re clausum fregit — of the possession. The plaintiff in an action of trespass qua/re clausum fregit must have the actual, or constructive possession of the locus in quo. The gist of the action, is the injury to the possession.</p> <p>2. If the premises are actually occupied, the action must be brought by the party in possession; if they are vacant and unoccupied, the party having the legal title has the right of possession, and must bring the action.</p> <p>3. Possession — what constitutes. A plaintiff in an action of trespass qua/re clausum fregit held a deed for certain premises from one who had a bond for a conveyance upon the payment of the purchase-money, which had not been done. The plaintiff holding such deed was never in the occupancy of the premises himself, but, for a time, was in possession by a tenant, who finally removed therefrom, delivering the key to his landlord, and leaving the premises vacant and unoccupied; and while thus vacant and unoccupied, the defendant, being the owner in fee, claiming under a subsequent conveyance from the same party who had executed the title bond to the grantor of the plaintiff, entered peaceably into the possession and occupancy of the premises; and in this act of the defendant consisted the alleged trespass. Held, that the facts did not constitute an actual possession in the plaintiff, when set up against the entry of the owner in fee. Against strangers having no claim or color of title, they might prevail.</p> <p>4. Right of possession —purchaser of an equitable title. Nor had the plaintiff any right of possession. The contract of sale to his grantor was executory and gave no right to enter upon the premises. The most that can be implied from such a contract, is a permission to the vendee to enter while the conditions aro maturing, as a tenant at will, and occupy as such; but such permission could not be transferred to his grantee; he held but a bare equity, which could not avail him in an action at law.</p> <p>5. Rescission op contract. Where a parly enters into possession of premises under a contract of purchase, holding a bond for a deed, of the usual form, and fails to comply with the terms of the purchase, the vendor is at liberty to treat the contract as rescinded and regain the possession by an action of ejectment.</p> <p>6. Demand op possession — notice to quit. And in such case, no demand of possession or notice to quit would be necessary.</p> <p>t. Trespass—whether the title is involved. Trespass being a possessory action, it is not at all necessary that the right should come in question.</p> <p>8. Same —position of the owner in fee. But where the right does come in question, as under a plea of liberum tenementum, and the plaintiff has neither a right to the property nor to the possession, .but has a naked possession, the owner of the fee has the right of entry and will not be liable in trespass, for exercising the right in a peaceable manner.</p> <p>9. Specific performance — after condition broken. Where a party has received a conveyance of land from one who held a bond for a deed to be executed upon the payment of the balance of the purchase-money, and after the time has elapsed for the payment of the money the original vendor conveys the premises to another party, who goes into possession, if the owner of the equitable title wishes still to perform the contract by paying the balance of the purchase-money, he is at perfect liberty to do so, and on a proper case made, chancery will decree the title to him. And his case would not be weakened in the least degree, by being out of possession pendente lite.</p>

This was an application to the Supreme Court for a writ of mandamus, to compel the treasurer of the city of Warsaw to pay a certain order drawn upon him by the mayor of that city. The application is upon an agreed case, the only question presented being npon the alleged unconstitutionality of the following act of the General Assembly of this State: “An act to repeal certaim, acts therevru ncmued: ” Section 1.

<p>1. Incobpobated BELisious SOCIETIES—real estate, in what manner held. Where real estate is conveyed to the trustees of a religious society which is incorporated under the statute, and to their successors in office, the title becomes vested in those officers, for the use of the society, and in trust for the purposes of its organization, as completely as though the use had been declared in the deed.</p> <p>2. Sake — the members are beneficiaries. Bach member of a church, so organized, becomes entitled to a beneficial interest in the property of the church so long as his connection or membership continues.</p> <p>3. Same —powers of the trustees in respect ofn the property. The legal title to the property is vested in the trustees for convenience in its control and management for the purposes of the trust; they have no power to pervert it, or prevent its being used for those purposes. The power is subordinate to the customs and rules of the organization.</p> <p>4. Same — authority of the members. Nor can a majority of the members of the church control the action of the trustees, against the usages and regulations of the church.</p> <p>5. Same —jurisdiction in chancery. Whenever the trustees of such a society do any act which obstructs the enjoyment of the property, for the purposes and in the mode authorized by the usages of the church as an organized body, they are guilty of a violation of the trust, which will be corrected by a court of chancery. A trust of this character is not distinguishable in this from any other trust over which courts of chancery exercise a supervisory power.</p> <p>6. Nor is it an answer to this claim of jurisdiction in a court of chancery, that a mandamus might lie, or that the statute has authorized the members of the church to remove the refractory trustees and elect others. The jurisdiction of a court of chancery over trusts is too firmly established to be shaken by those considerations.</p> <p>1. So, as in this case, where the trustees, by direction of a minority of the members, closed the church edifice against their minister and those disposed-to attend upon his ministrations, and contrary to the wish of a majority of the members, it was competent for a court of chancery to intervene to prevent the trustees from thus obstructing the use of the property for the appropriate purposes of the trust.</p> <p>8. Injunction-—when the proper remedy. It is no objection to an injunction issuing in such case, that the particular act of closing the church was already done; it was not like a simple act of trespass, hut was a continuing act, designed to deprive the members of the church and their pastor of their rights in the future as well as in the past; and to prevent such continuing injury and deprivation of right, the court might well interpose by its restraining power, to grant preventive relief, to the same extent that it could prevent a single injurious act.</p>

Writ of Error to the Superior Court of Chicago. On the 28th day of July, 1863, in pursuance of the recommendation of the hoard of public works, the common council of the city of Chicago passed an ordinance ordering that Wells street, from Madison street to the. north line of Adams street, should he curbed, filled and paved with Nicholson pavement, and that said Wells street, from the north line of Adams street to the roadway of Yan Burén street, should he graveled and…

This was a suit in chancery, instituted by Alfred Smith to foreclose a mortgage executed by Asher Eossitter and Erancis B. Eossitter, his wife, and Sheldon Graves • and Mary Graves, his wife, on the 14th day of June, 1853, to Thomas Dyer, upon lots five and six, in block six, in Kinzie’s addition to Chicago.

Wbit of Ebeob to the Superior Court of Chicago. This was an action upon a replevin bond, instituted by William James, coroner, for the use of George Smith and Elisha W. Willard, against Oscar Stratton, John.B. Lyon and Albert Morse, with whom was impleaded James T. Hoyt.

Writ of Error to the Superior Court of Chicago. This was an action of assumpsit, instituted in the court below by the South Branch Dock Company against George W. Dunlap and Baylor H. Gwathmey, to recover certain rents reserved, and for use and occupation.

Charles B. Lawrence, Judge, presiding. This was an action of assumpsit, instituted in the Circuit Court by Harvey L. Ross, the appellee, against Robert Barclay. The declaration contained two special counts upon promissory notes, and the third included the common counts.

Writ op Ebbob to the Superior Court of Chicago. Held: and that said North Presbyterian Church of Chicago, at the time the contracts of said Daegling and Jevne and Almini, for ¿hid work and. labor and material, were made, was, and now is, the owner of said lots of land; the said work and labor and material was done and performed with the knowledge and consent of the said Wesley 'Hunger,…

Charles B. Lawrence, Judge, presiding. This was an action of assumpsit, instituted in the court below, by George H. Wetmore and Mary A. Wetmore, his wife, and Charles Long, against the Hew England Fire and Marine Insurance Company, to recover damages occasioned by the destruction by fire, of a house upon which the defendants had issued a policy of insurance.

This cause, upon the original hearing, was decided at the April term, 1862, and will bé found reported in 28 Illinois Reports, 149. The following opinion was pronounced upon a rehearing of the cause at the April term, 1863. All the facts necessary to an understanding of this opinion, will be found in the former report of the case.

<p>1. Witness — competency, interest. Where a witness is entitled to a distributive share of a fund which would be increased or diminished by the result of a suit in which he is called to testify, his interest would render him incompetent to testify on behalf of the party seeking to protect such fund.</p> <p>2. As where the corporators of a cemetery association were to be reimbursed in their outlays in purchasing and improving their grounds, and also expected to realize profits from the sales of lots, they would be incompetent to testify on behalf of the corporation, in a suit brought against it for the recovery of the price of labor and materials performed and furnished in the improvement of the grounds, because the fund to be distributed among them would be diminished should the result of the suit be unfavorable to the defense, and thus their interests would be in favor of the parties calling them.</p> <p>3. One cannot become the voluntary creditor of another. One man has no right to constitute another his debtor without his consent.</p> <p>4. So where a mechanic engages to erect a building according to certain plans and specifications, and at a given price, he cannot recover for extra labor and materials unless they were furnished at the request of the party who is having the work done.</p> <p>5. Implied warranty — skill of mechanics, and quality of materials. Where a mechanic or other workman undertakes to construct a piece of work, he impliedly warrants that it shall be so constructed that it will be reasonably sufficient for the purpose for'which it is intended.</p> <p>6. So where a party agreed to furnish the materials and build a vault in a cemetery, at a given price, and from defective materials or want of skill in its construction it fell down, and he did not rebuild it, it was held he could not recover the price of the labor or materials.</p> <p>T. There is an implied warranty or undertaking in all cases, that the person so acting, is reasonably skillful in his profession, trade or calling, and that he will perform his engagements in that regard with that degree of skill. The law implies in all contracts, in the absence of an express agreement to the contrary, that materials agreed to be furnished shall be suitable for the purpose, and that the labor shall be performed with reasonable skill.</p> <p>8. When defendant may recover judgment over. In an action commenced before a justice of the peace, to recover the price of labor and materials furnished in the building of a vault, the defendant filed an account, setting up damages which he claimed to have sustained by reason of the use of defective materials, and the want of proper skill on the part of the plaintiffs in the construction of the vault, in consequence of which it fell down. It seems, in such case, if the damages sustained by the defendant by reason of a non-compliance with the contract on the part of the plaintiff exceed the amount which the plaintiff would otherwise be entitled to recover, the defendant may recover such excess in the same action. * </p>

A. L. Mérrima», Judge, presiding. Charles B. Day, and others, partners, instituted, suit before a justice of the peace, in Peoria county, against Lawrence Van Buskirk, upon the following instrument of writing: “ $200. ■ Peoria, Uov. 11, 1859. “ For value received I promise to pay to the order of Lewis Howell, president of the board of trustees of loan to the American Pottery Company, two hundred dollars, payable at the banking house of S. Pulsifer & Co., in Peoria, in…

Benjamin B. Sheldon, Judge, presiding. On the 4th day of November, 1857, John K. Brewster made an assignment of his property, for the benefit of creditors, to Daniel S. Brewster and John A. Clark.

Wbit of Ebbob to the Circuit Court of Kendall county; the Hon Madison E. Hollister, Judge, presiding. This was an action of debt, commenced before a justice of the peace in the county of La Salle, by Lewis Soule against William Gentleman, to recover the penalty for obstructing a public road in that county, under the provisions of the act of 22d of June, 1852. Sess. acts, p. 176; Scales’ Comp. 574.

Writ of Error to the Circuit Court of Peoria county; the ¡Hon. A. L. Merrimah, Judge, presiding. Burdick and Peet executed and delivered to Erastus Peet the following promissory note: “ $304.40. Cleveland, O., Aug. 27, 1860. “ Sixty days after date, we promise to pay to the order of “ Erastus Peet, at the Bank of Commerce, Cleveland, O., Three “ Hundred and Four Ty„ Dollars, value received.” (Signed) “ BURDICK & PEET.” The note was assigned by Erastus Peet, the payee, to ¡M¡.

Writ of Error to the Circuit Court of Lee Countj; the Hon. John Y. Eustace, Judge, presiding.

P. K. Leland, judge, presiding. Isaiah Strawn, on the 9th day of January, 1862, instituted an action of assumpsit in the court below against E. E. Fay & Co., bankers in the city of Ottawa, for the recovery of five hundred dollars, the proceeds of a bill of exchange for that amount, drawn by the plaintiff, Strawn, upon ¡Neely, Lawrence & Co., of Chicago, and placed in the hands of the defendants .for collection.

Writ of Error to the Circuit Court of Peoria county: the Hon. A. L. Merriman, Judge, presiding. This was an action of debt, instituted in the court below, in February, 1861, by John P. Jarvis and Caroline, his wife, against John P. Lawrence, upon the record of a judgment obtained by these plaintiffs against the defendant, in the Court of Common Pleas of Coshocton county, in the State of Ohio. A sufficient statement of the case is given in the opinion of the court.

This was an action of assumpsit instituted in the court below, by Catharine Guyler against Gottlieb Prescott, to recover damages for an alleged breach of promise of marriage.

S. W. Habbis, Judge, presiding. On the 10th day of ¡November, 1858, Julius Ziegfeld executed and delivered to Peter Folkers, his promissory note for the sum of two hundred dollars, payable on the 10th day of ¡November, 1860, with interest at ten per cent, per annum. Folkers, the payee of the note, assigned the same by indorsement in blank, to Jacob H. White, and White subsequently indorsed the note, in the same manner, to Levi ¡M¡. Olayes.

A. L. Mérrimas, Judge, presiding. The case is sufficiently stated in the opinion of the court, to a proper understanding of the question decided.

Writ oe Error to the Circuit Court of La Salle county; the Hon. Madison E. Hollister, Judge, presiding. Held: by -request, until the mortgage was duly canceled and the title made perfect.

William Chumasebo, Judge, presiding. This was an action of covenant commenced in the court below, by Catharine E. Gilson, administratrix of George W. Gilson, deceased, for the use of Isaac Heilman, against George W. King, to recover damages for an alleged breach of certain covenants of seizin, and of good right to convey, contained in a deed of conveyance of land, from the defendant, King, to the plaintiff’s intestate, George W. Gilson.

Geobge Maniebre, Judge, presiding. This was an action of assumpsit instituted in the court below, by John C. Haines, against Gustav Leverenz. The declaration contained two counts; the first alleged the making and delivery by the defendant of the following instrument, and a non-performance of its conditions. Chicago, III., Nov. 19, 1859.

George Manierre, Judge, presiding. On the 10th day of December, 1861, Benjamin F. Brookfield, Job Carpenter, Isaac Metzger, Henry Oppenheimer, Charles G. Smith and Charles Letz, exhibited their bill in chancery in the court below, against Grant Goodrich, John McCaffery, and several others, setting forth that on the 1st of March, 1856, the defendant, McCaffery, borrowed of B. K. Swift, Brother & Johnston, the sum of $14,000; and to secure it gave them twenty-one bonds,…

Writ of Error to the Superior Court of Chicago; the Hon. Grant Goodrich, Judge, presiding. On the 30th day of May, 1861, Cyrenius Beers commenced an action of assumpsit in the court below, against John G. Deshler. The declaration contained four counts.

Benj. E. Sheldou, Judge, presiding. On the sixteenth day of September, 1842, Hezekiah H. Gear made and delivered to Hath aniel J. Brown, his promissory note for nineteen hundred dollars, payable to the order of said Brown, eighteen months after date. This note was, after its maturity, indorsed to John Lowery, who instituted suit thereon in the court below, on the 12th day of September, 1860.

Writ or Error to the Superior Court of Chicago; the Hon. John M. Wilson, Chief Justice, presiding. ■ This was a suit in chancery instituted in the court below, by John Wiler against Mariett Livings, Almon Fuller and Augustus Fl’isbie, for the foreclosure of a mortgage alleged to have been executed by the defendant Livings to Frisbie, on the 10th of August, 1857, to secure her note of that date for $3,000, payable two years after date with interest at ten per cent., and…

Writ; of Error to the Circuit Court of the county of La Salle; the Hon. Madison E. Hollister, Judge, presiding. On the 17th day of December, 1860, Daniel Ward instituted his action of assumpsit in the court below, against Samuel A. Summers and Joseph Stout, upon the following promissory note: $300. Marseilles, Nov. 25th, 1857. For value received, we, or either of us, promise to pay Daniel Ward, or bearer, three hundred dollars, six months, from date, for money loaned.

Writ of Error to the Superior Court of Chicago. The plaintiffs, Fawcett, Isham & Co., being copartners and dealers in leather in the city of Hew York, entered into a contract, in writing, with Walter H. Stevens arid Fletcher Stevens, who were engaged in the business of tanning at Stevensville, Sullivan county, Hew York, under the firm name of W. H. & F. Stevens, as follows: It is this day agreed between Fawcett, Isham & Co., of the city of Hew York, and W. H. & F. Stevens,…

This was a suit in chancery instituted in the court below by the appellants, the heirs-at-law of Oliver Dennis, senior, deceased, against Ezra B. MeCagg and others. The hill alleges that the complainants were of French birth, and resided in Canada until the year 1846, when they removed' to Chicago; that they were ignorant and unable to speak the English language, or to understand it.

Writs op Error to the Circuit Court of Cook county; the Hon. George Manieres, Judge, presiding: These writs of error were sued out by David S. Hammond, sheriff of Cook county, for the purpose of bringing in review, before this court, the decisions of the Circuit Court upon two applications, by Joseph Yacaro and Paul Celia, respectively, upon habeas corpus, for discharge from imprisonment. The petitioners allege precisely the same state of facts in both cases.

Writ of Error to the Circuit Court of Wabash County. After a rule to join in error had expired, but before a default was asked for non-joinder, the defendant in error filed an affidavit that the plaintiff in error was a non-resident of this state at the time this writ of error was sued out, and that no bond for costs has been filed, and thereupon moved for a rule upon the plaintiff to show cause why the writ should not he dismissed.

H. K. S. O’Melvent, Judge, presiding. On the 27th day of March, 1850, John Preschbaker, being the owner of a certain farm situate in the county of Eandolph, conveyed the premises by deed, absolute upon its face, to Jacob Feaman and Henry 0. Gilbert. The consideration expressed in the deed was three thousand dollars, and that amount was received by Preschbaker from the grantees.

Silas L. Betas, judge, presiding. This was an action of assumpsit brought in t*he court below, by Jacob Morelock against Welcom Martin, upon two promissory notes issued by the defendant to Monheimer, Freedman & Co., and Freedman & Stern, respectively, and by them assigned to the plaintiff.

Wbit of Ebbob to the Circuit Court of Lawrence county,- the Hon. James C. Allen, Judge, presiding. On the 26th day of April, 1862, Abner G. Murphy, Theodore Murphy, Thomas Murphy, James Dodge and Elizabeth Dodge, his wife, instituted their action of ejectment against Hugh Orr,' to recover a certain tract of land, situate in Lawrence county, described as the northeast quarter of the southeast quarter of section nineteen, in township three, north of range twelve, west.

Writ of Error to the Circuit Court of Clinton County; the Hon. Silas L. Bryah, Judge, presiding. The pleadings in this cause upon which the questions arise, are sufficiently set forth in the opinion of the court.

Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. At the March term, 1863, Lewis Morrell was indicted in the court below, for perjury. The portion of the indictment material to be presented here, is as follows: The grand jurors, &c., “present, that Lewis Morrell, on the 19th of March, 1863, in the county of Marion, before Jacob 0.

Wbit of Ebror to the Circuit Court of Jackson county; the Hon. Isham H. Haynie, an attorney of said court, presiding as judge, by agreement of the parties, in place of the Hon. A. M. Jenkins, the jndge of that court. This was an action of ejectment, instituted in the court below, by Israel Blanchard and his wife against Daniel Heal, for the recovery of lots numbered one and eight, in block number twelve, in the town of Murphysbóro’, in Jackson county.

This was an action of assumpsit instituted in the court below by John Breusing against Thomas GL Allen. The declaration contained a special count upon the following due bill: Sept. 4, 1862. Due John Breusing, or order, three hundred dollars, value received. THOS. C. ALLEY, Col. 80th Reg’t Ill. Vol. The common counts were added, for goods sold, money paid, mpney lent and upon an account stated.

Wbit ob Ebbob to the Circuit Court of Pulaski county; the Hon. Wesley Sloam, Judge, presiding. TMs was a suit instituted in the corat below by Edward H. White against John W. Monahan and several others.

Samuel S. Marshall, Judge, presiding. Minerva Merrell commenced an action of assumpsit in the Circuit Court of Marion county, against William White; the cause was removed, on change of venue, into the Circuit Court of Jefferson county. The declaration contained the common money counts only; issues were made up and the cause came on for trial.

Writ or Error to the Circuit Court of Union county: the Hon. Alexander M. Jenkins, Judge, presiding. On the 19th day of February, 1840, Ephraim H. Gatewood and his wife executed and delivered to the Bank of Illinois, a mortgage upon certain real estate then owned by him, situate in ■ the counties of Gallatin, White, Massac and Pulaski, to secure the payment of $12,500.

Wbit of Eeror to the Circuit Court of Clinton county; The Hon. Silas L. Bbyaet, Judge, presiding. This was a suit in chancery instituted in the Circuit Court by Henry H. Horner against Michael Keith and John Gedney, to enforce a vendor’s lien upon real estate, as the assignee of the vendor.

Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding. Isabel Jolliff exhibited her bill in chancery in the court below, against her husband, James Jolliff, praying a divorce and alimony.

Writ or Error to the Circuit Court of Marion County; the Hon. H. K. S. O’Mel vene y, Judge, presiding; The plaintiff in error asked leave to file a bill of discovery in the Marion County Circuit Court, in which bill he alleged the pendency in that court, of a suit at law, wherein the defendants in error were plaintiffs, and the complainant in the bill was defendant; that said suit was brought upon a promissory note given by the complainant to one Lasater, for the sum of five…

Writ of Error to the Circuit Court of St. Clam county. The pleadings and proceedings in this cause are set forth in the opinion of the court.

Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. The defendant in error filed his hill in the Marion County Circuit Court, for the specific performance of a contract for the sale of twenty feet front of a lot of ground in Centralia. The facts in the case are fully set forth in the opinion of the coint.

Writ cot Error to the Circuit Court of Clinton county; the Hon. Silas L. Bryan, Judge, presiding. This was an action of debt brought upon a note under seal, executed by Herman Heckenkemper and two others, to John E. Dingwehrs, the plaintiff below, as “ commissioner to sell the real estate of John Hordhouse, deceased.” The questions in the case arise upon demurrer to a special plea filed by' the defendants, which are fully set forth in the opinion of the court.

This was a writ of error to the Circuit Court of St. Clair county. The defendant, by his counsel, entered his motion for a continuance of this cause, the application being grounded upon an affidavit made by Jacob Thoma, in which it was declared that “said defendant, Nathaniel Niles, is in the military service of the United States, as colonel of the 130th Reg. Ill.