Volume 36 — Illinois Reports

Writ of Error to the Superior Court of Chicago This was an application to the Superior Court of Chicago, by the city collector, for a judgment, against lots and real estate, which had been assessed for the purpose of extending Fourteenth street to Indiana avenue. The report and application for judgment of the city collector was filed in the Superior Court of Chicago, February 6th, 1865.

Writ of error to the Circuit Court of Cook county; the Hon. George Manierre, Judge, presiding. This was a suit in chancery instituted in the court below, by William H. Stow against the representatives of Samuel Russell, deceased, to compel the specific performance of a contract for the sale of certain real estate in the city of Chicago, entered into by said Russell, in his lifetime, with the complainant.

Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. On the 29th day of November, 1862, Alfred Gr. Peckham, Dennis M. Pitch and Archibald Thompson exhibited their bill in chancery, in the court below, against Benjamin F. Haddock, Isaac Speer, Thomas Speer and Buckner S. Morris.

Madison E. Hollister, Judge, presiding. This was an action of assumpsit instituted in the court below by Adlai E. Stevenson against George 0. Lemon, Sen., Zenas Hartley and Azor Oaproh, to recover as assignee of the following promissory note: $979.09. Boston, Nov. 7,1860. Eight months after date we jointly and severally agree to pay to the order of George G. Lemon, Jr., Nine Hundred and Seventy-Nine 09-100 Dollars, at either Bank in Boston, Mass., value received. GEORGE 0.

Charles B. Lawrence, Judge, presiding In January, 1859, John Piatt, guardian of the children of John Thompson, deceased, exhibited his bill in chancery in the Circuit Court of Knox county, against Abel Austin, David Mason, A. B. Codding, Warren C. Willard and Jacob S. Chambers, for the foreclosure of a mortgage upon the south half of lot eight, in block two, in the town of Lapier, since called the town of Altona, in said county.

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Madison E. Hollister, Judge, presiding.</p>

M. E. Hollister, Judge, presiding. This was an action of assumpsit, commenced by the Northern Illinois Coal and Iron Co. of LaSalle, against the Chicago and Rock Island Railroad Co., to recover payment for water furnished by plaintiff to defendant.' It appears from the evidence, that an arrangement was made by the agents of the two companies, that defendant should complete a wall partly constructed, to secure an embankment, for which they were to have the use of the waste…

Writ of ERROR to the Circuit Court of Warren county; the Hon. Charles B. Lawrence, Judge, presiding.

Writ of error to the Circuit Court of Marshall county, the Hon. Sam’l L. Richmond, Judge, presiding. This was an action of assumpsit commenced by Edwin B. Neville against the school directors of district No. 1, T. 32 N., R. 2 W., 3rd P. M., in the Putnam Circuit Court. The case was afterwards sent to Marshall county, on a change of venue.

Writ of error to the Circuit Court of Peoria county; the Hon. A. L. Merriman, Judge, presiding. On the sixth day of September, 1848, Sylvanus Ferns exhibited his bill in chancery in the court below, against John E. McClure, John Reynolds, and one J. P. Hotchldss, who has since died. The parties to the suit were copartners, and the object of the bill was to obtain an account in reference to their partnership business.

<p>1. Judgments by confession, in vacation—proof required. It has been held, that where a judgment is entered by confession in vacation, more than a year and a day after the power of attorney was executed, an affidavit should be filed showing that the defendant is alive, and that the debt is due and unpaid.</p> <p>2. Same — when the objection m/usl first be taken. But in such cases the party aggrieved should apply to the court in which the judgment was entered for redress, where he may obtain it, on motion, if equitably entitled thereto.</p> <p>3. Same — what is sufficient ground for relief. Before a judgment will be set aside, however, because an affidavit was not filed showing that the defendant was alive and that the debt was due and unpaid, the party making the application is required to show some equitable reason therefor. A mere non-compliance with the rule of the court in this regard, is not a ground for equitable relief.</p> <p>4. Same—when error will lie. Should the court below refuse to grant relief when a proper application is made to it, the party aggrieved may then bring his case to the appellate court to correct the error of the court below. But a judgment entered by confession will not be reversed on the sole ground that no affidavit was filed showing that the defendant was alive and that the debt was due.</p>

This was an action of assumpsit brought in the court below by Josiah H. Reed, Horace A. Hurlbut, and Sylvester S. Bliss, against Calvin T. Wheeler, to recover damages for the breach of an alleged warranty of forty eight hundred barrels of flour, sold to the plaintiffs by the defendant in April, 1861. The defendant pleaded the general issue, and the cause was tried by a jury, who returned a verdict for the plaintiffs and assessed their damages at twenty-four hundred dollars.

M. E. Hollister, Judge, presiding. This was a qui tom prosecution, commenced before a justice of the peace of Bureau county, by David Nichols against Lewis Grube, and a number of other persons, to recover the penalty given by law, for obstructing and continuing to obstruct a public highway, after being requested to remove the same, by the road commissioner of the town.

Writ of error to the Circuit Court of Peoria county; the Hon. A. L. Merriman, Judge, presiding. This was a suit in chancery instituted by William 0. Butler against Samuel Claycomb, in the Circuit Court of Warren county, and removed upon change of venue into the Circuit Court of Peoria county. The object of the bill was to set aside an award of arbitrators upon the alleged ground of fraud, and to enjoin a suit upon the bond.

W. W. Heaton, Judge, presiding. This was a suit in chancery, commenced by Nathaniel Brown, against Sherman W. Cadwell, to enforce a specific performance of a contract to convey the N. S. E. 23, 20 N., 9 E., and for an account. It appears that on the 7th day of July, 1860, defendant executed to complainant a bond for the conveyance of the premises in controversy, for which the complainant was to pay him the sum of $1,120, of which he paid at the time $330.

John M. Scott, Judge, presiding. This was a suit in chancery, instituted in the court below by James S. Craig, against William Gr. Miller, to set aside a deed executed by the complainant to the defendant, upon the grounds of alleged misrepresentations by the grantee, and mental incapacity on the part of the grantor. A. decree was entered, rescinding the contract, from which the defendant took this appeal.

Madison E. Hollister, Judge, presiding. This was an action of assumpsit brought by Leverett Chittenden, as administrator of Eben Chittenden, deceased, against Robert Hopkins, upon the following promissory note : $387.20 One day after date, for value received, I promise to pay to Eben Chittenden or order, three hundred and eighty-seven 20-100 dollars, with interest at ten per cent. ROBERT HOPKINS. Bristol, June 23, 1860.

Ira 0. Wilkinson, Judge, presiding. This was an action of ejectment instituted in the court below by the appellees against the appellant, to recover the possession of the west one hundred acres of the north-east quarter of Section seven, in Township nineteen 'north, Range three east of the fourth principal meridian, situate in the county of Rock Island. A trial resulted in a finding and judgment for the plaintiffs below, from which the defendant took this appeal.

John S. Thompson, Judge, presiding. Brent and Brown were sued, by Dykeman Shook, in the Warren Circuit Court, at the March term, 1864, and the summens was returned served upon Brent, but no return as to Brown. At the March term, “ the defendants appeared by attorney, and on his motion,” this cause was ordered to be continued to the October term, for want of a declaration, at the plaintiff’s cost, to be paid in due course of administration.

Writ of error to the Circuit Court of Marshall county; the Hon. S. L. Richmond, Judge, presiding. Dennis Haggerty instituted suit against Davenport Fisher, before a justice of the peace, in Marshall county, upon the following account: “Davenport Fisher, 1863. To Dennis Haggerty, Dr. June 6. To hauling 11 loads of pork after working hours, 25 cents load,......$2.75.” A trial before the justice resulted in a verdict and judgment for the plaintiff.

Benjamin E. Sheldon, Judge, presiding. Alfred Hull instituted an action of debt in the court below, against Jacob Kohlsaat, upon the following instrument: “ State of Illinois, Jo Daviess County, ) “ $75.00. Town of Woodbine, April 1,1862. j “ Six months after date, I promise to pay to Alfred Hull, or order, seventy-five dollars, with ten per cent, interest, without defalcation, for value received, in American gold.

Writ op Error to the Superior Court of Chicago. This was a bill in chancery, exhibited by Williant W. Bierce, Marcus Brown, and Henry N. Hedges, Jr., receivers of the Bank of Circleville, Ohio, against Nicholas P. Iglehart, and Prances M., his wife, to foreclose a mortgage executed by them to the complainants as such receivers, to secure the payment of moneys due by Iglehart to the Bank of Circleville, Ohio.

W. W. Heaton, Judge, presiding. This was an action of assumpsit instituted in the court below by the school directors of district one, in township twenty-four, range ten, in Ogle country, against the school directors of district five, in the same town, to recover certain moneys which had been paid to the defendants by the treasurer of the township, upon tl^e order of the board of trustees thereof It appears the money sued for had been collected as a district tax levied for…

Van H. Higgins, Judge, presiding. • This was an action of assumpsit commenced in the Superior Court of Chicago by the appellees against the appellant. The cause came on for trial at the January term, 1862. Upon the trial, the plaintiffs below offered in evidence, a note made by the defendant, of which the following is a copy: “ $349t502ó. Ottawa, Ill., June 26, 1860.

Writ op Error to the Superior Court of Chicago. This was an action of assumpsit, brought in the court below by Charles T. Harvey, against John R. Parsons, to recover the contract price of a Fairbanks & Wilmarth sawing machine, sold July 15th, 1861, for $975.

Madison E. Hollister, Judge, presiding. This was a suit in chancery, instituted in the court below, by John D. Olmstead and Thomas Herford, against Charles S. Dole and James H. Dole, and others, for an adjustment of the rights of the parties in reference to a quantity of grain which was taken in store by Fairfield & Weld, warehousemen, in the city of Ottawa. Dole & Co., not bemg'sátisfiefi' with the decree in the court below, bring the case to this court by appeal.

<p>Appeal from the Superior Court of Chicago.</p>

Writ of Error to the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding. This was an action of ejectment, commenced in the Circuit Court of Tazewell county, by Edmund S. Holbrook, against John Nichol, to recover the west half of the north-east quarter of Section thirty-five, in Township twenty-five north, of Range five west, situate in that county. Benjamin S. Prettyman came in to defend, as landlord of Wichol.

Writ of Error to the Circuit Court of Perry county; the Hon. J. H Mulkey, Judge, presiding. This was a suit in chancery instituted in the court below by James Rowe against Nathan P. Chambers, to compel the specific performance of a contract for the sale of land.

A. M. Jenkins, Judge, presiding. This was an action of assumpsit, brought at the June term, 1861, by Haynie, as assignee of a promissory note, against Aird, the assignor. The process was sent from Alexander to Marion county, and there served upon the defendant. He pleaded to the jurisdiction. The plaintiff took issue upon the plea, and the case was submitted to the court for trial on an agreed statement of facts.

Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding. This was originally an action, brought before a justice of the peace, by the President and Trustees of the Town of Ashley, against Spencer S. Ewbanlzs, to recover a penalty for the violation of an ordinance of the town. The justice of the peace issued a warrant for the arrest of defendant, returnable forthwith.

S. L. Bryan, Judge, presiding This was a bill in chancery for the specific performance of a contract for the sale of land, brought in the Marion Circuit Court, at the March term, 1863, by Erastus B. Carver, against Stanford A. Lasater and Daniel Gregory. The case was heard on the bill, answer, replication, exhibits and depositions, and the court decreed for defendants for costs. The case is brought here by writ of error.

Silas L. Be van, Judge, presiding. This was an action of assumpsit brought at the August term, 1864, by the appellees against the appellants, to recover damages for failure to deliver a certain quantity of wool which the appellees claimed to have bought of the appellants at a certain price, per pound. Judgment for the plaintiff below, for $122.

Aabon Shaw, Judge, presiding. This was a suit in equity, brought by William L. Dupuy, against Isaac Gibson, John M. Wilson, William T. Sheley, John Bradford, David McGraw, John I. Moore, and William H. Cord, to the June term, 1860, of the Richland Circuit Court, to foreclose a chattel mortgage.

<p>1. Bailiff—sheriff has power to appoint. A sheriff has power to appoint a special bailiff to execute a writ, he indorsing the appointment on the writ.</p> <p>2. Same — the retv/rn being in the name of sheriff, makes him responsible. The return on the writ being in the name of the sheriff, he is responsible for its truth.</p> <p>3. Gaming—what is a bet on an eledion. A note for money, payable if “Abraham Lincoln receives the electoral vote of the State of Illinois,” is a bet on an election, and void on its face.</p>

Writ op Error to the Circuit Court of Alexander county. This was an action of covenant, brought by Smith against Bearden, at the May term, 1859, of the Circuit Court. of Alexander county. The plaintiff had judgment for $1,200, and the defendant brought this writ of error. The only question made in this court was upon the sufficiency of the entry in the record in regard to the impanneling of the jury and the return of the verdict. The facts appear in the opinion of the court.

<p>1. Security fob costs — affidavit of residence. An affidavit of residence of the plaintiff, in answer to a motion to dismiss the suit for want of security for costs, which fails to state that plaintiff was a resident of the State when the suit was commenced, is insufficient to prove the residence at that time.</p> <p>2. Bill of Exceptions — should, contain all the evidence. If the bill of exceptions fails to state that it contains all of the evidence heard on the motion, the presumption will be indulged that the court below decided correctly in overruling the motion to dismiss the suit.</p>

S. L. Beyaw, Judge, presiding. This was an action originally brought before a justice of the peace, by Lynch against Wickliffe, and taken by appeal to the Circuit Court of Marion county, in which court Lynch, on a trial before a jury, had a verdict and judgment against Wickliffe for one hundred dollars and costs. The cause of action was the price of a horse which Wickliffe sold to Lynch, and which was proved away from him, under a claim by the United States.

Writ of Error to the Circuit Court of the county of Marion; the Hon. Silas L. Bryan, Judge, presiding. This was an action of assumpsit, brought by the plaintiff in error, William H. Mason, against the defendant in error, Mrs. Jones, for goods sold and delivered. The verdict and judgment below were for the defendant. The case was brought to this court on a question arising upon the admissibility of a witness. The facts are stated in the opinion of the court.

Writ of Error to the Circuit Court of Clinton county; the How. Silas L. Bryaw, Judge, presiding. This was a petition, to enforce a mechanics’ lien, filed by Reuben C. McCord, Charles W. McCord and George H. Garnett, against Fielden Power, William Morton, Wm. T. Power, John Brown, and a large number of other persons, to the August term, 1860, of the Clinton Circuit Court.

Writ of Error to the Circuit Court of Clinton county; the Hon. Silas L. Bryan, Judge, presiding. The record in this case is the same as that in the preceding case of Fielden Power et al. v. Reuben McCord et al. George H. Eversal and James McLaird were made defendants in that proceeding, and they filed their answer, and made it a bill of interpleader.

J. H. Mtjlkey, Judge, presiding. The plaintiff in error filed his hill in the Circuit Court of Perry county, against the defendants in error, alleging that in the month of October, 1860, executions were issued from the Circuit Court of Perry county, in favor of the defendants, McKee & Co., Bacon, Hyde & Co., Grant, Walker & Co., and Fargo & Bill, for various sums of money, in the aggregate amounting to $865.46, upon judgments rendered in their favor, at the September term,…

Writ of Error to the Circuit Court of Clinton county; the Hon. Silas L. Bryan, Judge, presiding. This was an action of ejectment, commenced by the plaintiff in error, Mosheimer, against the defendant in error, Ussleman, at the March term, 1863, and tried at a subsequent term. A jury was waived, and the court gave judgment for the defendant below. The facts, so far as they are at all material to the questions decided, are given in the opinion of the court.

Writ op Error to the Court of Common Pleas for the city of Cairo; the Hon. John H. Mulkey, Judge, presiding. This suit was commenced by filing with the cleric of the Common Pleas Court of the city of Cairo, on the 6th of June, 1863, an affidavit and attachment bond, as required by the attachment law. A writ of attachment issued against the defendant, June 6th, 1863, and was returned at the July term of the court, 1863.

S. L. Bryan, Judge, presiding. In October, 1860, David O’Kelly recovered a judgment in the Monroe Circuit Court for $429.16, damages and costs; upon which judgment execution was issued, and returned by the sheriff of said county, “Ho property found.” An affidavit was then filed, in due form of law, and garnishee process was issued out of said court, against Harrison Horine on the 20th of ¡November, 1863. On the same day, a bond for costs was filed for plaintiff.

Writ or Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. This was an action of ejectment brought by the plaintiff in error against the defendant in error, at the March term, 1864, of the Circuit Court of Marion county, to recover certain premises which had formerly been the homestead of the plaintiff. The facts appear in the opinion of the court.

Writ of Error to the Circuit Court of Pulaski county; the Hon. Wesley Sloan, Judge, presiding. This was an application by the collector, to the County Court, for a judgment against lands for delinquent taxes. A trial was had, on objections interposed in that court, resulting in a judgment for a sale of the lands. The case was removed to the Circuit Court, by appeal.

S. L. Bryan, Judge, presiding. This was an action of assumpsit brought by Deborah Williams against Jesse Edens, to the April term, 1864, of the Washington Circuit Court. A motion was made by defendant to quash the summons, which was denied.

Silas L. Bryan, Judge, presiding. This was an action of assumpsit, commenced by McKee, appellee, against Ballenger, appellant, at the August term, 1864, upon a promissory note.

<p>Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding.</p> <p>This was an action of replevin, bought by Charles Duffield, against William J. A. Delancey, to the August term of the Marion Circuit Court, for the recovery of a variety of articles of personal property levied upon by defendant, under execution in his hands for collection.</p> <p>It appears that the property was seized as that of Amos Duffield, against whom defendant had an execution. Plaintiff claimed to be the owner of the property by a purchase from his brother Amos.</p> <p>On the trial he proved that Amos was largely indebted to him, and produced a bill of sale embracing the property in controversy, executed by his brother Amos to himself</p> <p>It also appears that Amos remained on the farm, on which the property was situated, and the property was on the farm and under the control of Amos, at the time of the levy. It was claimed, and Amos swears, that he was the agent of plaintiff, and received twenty-five dollars per month from him, for labor on the farm.</p> <p>By defendant it was claimed that the sale was only colorable, and made to defraud creditors, and he introduced evidence to prove that the possession of the property never changed at or after the sale. Also, evidence to show that Amos was in failing circumstances at the time the sale was made.</p> <p>The court gave, at the request of defendant below, amongst others, these instructions:</p> <p>1. “ The court instructs the jury for the defendant, that the plaintiff in this suit must prove to the satisfaction of the jury, by affirmative evidence, that the title to the property mentioned in the case, is the property of Charles Duffield; purchased in good faith and without fraud; and unless they so believe, they must find for the defendant.”</p> <p>3. “ That in making up their minds as to the question of fraud in this case, between Charles Duffield and Amos, the jury are entitled to consider the fact of relationship of the parties — the failing circumstances of Amos, and any unusual particularity of the parties, in making the contract of sale; and if they believe, from the evidence, that the sale pretended to be made was to defraud the creditors of Amos Duffield, they must find for the defendant.”</p> <p>7. “ That in deciding upon the question, as to whether the sale from Amos to Charles Duffield was made in good faith, the jury have a right to take into consideration any circumstances which, if proved, tend to show a fraudulent intent in said Amos and Charles; such as their relationship, and the said Amos being the seller and agent to receive the property for his brother Charles, the indebtedness of said Amos at the time of sale, and any unusual particularity used in making the contract of sale, also, the sale being a transfer of every article of property in possession of said Amos, without any remuneration whatever, together with all the circumstances surrounding the transaction in proof before them, having a tendency to show bad faith in the transaction, or a fraudulent intent, on the part of said Amos and plaintiff, in making said contract of sale.”</p> <p>Plaintiff below excepted to the giving of these instructions. The jury returned a verdict in favor of defendant. Plaintiff entered a motion for a new trial, which was overruled, and an exception taken. The court rendered a judgment against plaintiff below, for a return of the property, and awarded a writ of retorno hahendo, and a judgment for costs.</p> <p>Plaintiff below brings the case to this court on a writ of error, for the reversal of the judgment. He assigns for error, the giving of defendant’s first, second, third, fourth, fifth, sixth, seventh and eighth instructions; and the overruling his motion for a new trial.</p>

L. Bryan, Judge, presiding. Finley and Black executed the following warrant of attorney on the 16th of August, 1859, under their hands and seals : “ Thayer, Aldrich é Co. vs. Finley and Blade. “The said defendants come and waive all informalities, insufficiencies and irregularities in this suit, and authorized an empower B. B. Smith to appear in court, at its August term, 1859, and confess a judgment against them in their behalf, in favor of said plaintiffs, for the sum of…

<p>1. Tax deed—will not le corrected ly court of chancery. When a sheriff, in selling land for non-payment of taxes, has neglected to affix a seal to his deed, a court of chancery will not correct the error.</p> <p>2. Tax title. A tax title is a purely technical, as contra-distinguished from a meritorious, title, and depends, for its validity, upon a strict compliance with the statute.</p>

Writ of Error to the Circuit Court of Wabash county; the Hon. Samuel S. Marshall, Judge, presiding. It appears from the record, in this case, that defendants in error recovered a judgment against the Ohio and Mississippi Railroad Company, at the September term, 1858, of the Edwards Circuit Court, for the sum of four thousand dollars.

Clair county; the Hon. J. Gillespie, Judge, presiding. This was an action of debt in the St. Clair Circuit Court, originally commenced by George Wickline against Andrew J. Steele, and revived in the name of William Patterson, administrator of Wickline. The action was brought on a writing obligatory, executed by Steele to Wickline for the sum of four hundred dollars.

Writ op Error to the Circuit Court of Monroe county; the Hon. Silas L. Bryan, Judge, presiding.

Writ of Error to the Circyiit Court of Edgar county ; the Hon. Charles H. Constable, Judge, presiding. This was an action of assumpsit commenced by Amos Green and John W. Sheets, against John Crabtree and James Crab-tree, to the April term, 1864, of the Edgar Circuit Court. The facts sufficiently appear from the opinion of the court.

Writ of Error to the Circuit Court of Macon county; the Hon. C. Emerson, Judge, presiding. William Hays having obtained a judgment against one Eleanor Adams and W. B. Aaron, issued an execution thereon, which was returned nulla bona, whereupon he filed an affidavit, stating his belief that John W. Bear was indebted to Eleanor Adams, and caused him to be summoned as garnishee. The summons was duly served on Bear, and returned.

Writ of Error to the Circuit Court of Macon county; the Hon. Charles Emerson, Judge, presiding. This was an action on the case brought by the appellee against the appellant to recover the value of a steer killed by the latter. The suit was brought under the statute requiring railways to fence their roads within six months after opening their lines.

Writ of Error to the Circuit Court of McDonough county; the Hon. C. L. Higbee, Judge, presiding. This was an action of ejectment brought by Michael B. Clark and Martin I. Clark against Mary White, in the McDonough Circuit Court, for the recovery of the possession, amongst other property, of a tract of land containing three acres and a fraction, situated in McDonough county.

O. H. Constable, Judge, presiding. This was a proceeding by indictment at the October term, 1861, of the Circuit Court of Coles county, against Charles E. Smith, Thomas P. James, and five others, for a misdemeanor.

Writ of Error to the Circuit Court of Eulton county; the Hon. C. L. Higbee, Judge, presiding. This was a bill in chancery filed at the July term, 1859, of the Circuit Court, by the defendant in error as heir of John Rankin, deceased, against the plaintiffs in error, for the purpose of setting aside a sale and deed of real estate made by the executors of John Rankin, under which the plaintiffs in error claimed the title.

David M. Woodson, Judge, presiding. This was a suit, brought before a justice of the peace, by the president and trustees of the town of Jacksonville, against Solomon Block, for selling spirituous liquors without a license, in violation of an ordinance of the town. The case was tried before the justice of the peace,. and resulted in a judgment against Block for the sum of one hundred dollars, from which he appealed to the Circuit Court.

Wb.it of Error to the Circuit Court of Sangamon county; the Hon. E. T. Rice, Judge, presiding. This was an action of debt on replevin bond by plaintiff in error against Andreas Kun and one John Ruf. The declaration consists of three counts, in the usual form, upon a replevin bond executed to plaintiff in error by one John Ruf, principal, and Andreas Kun, surety.

C. L. Higkbee, Judge, presiding. This was an action of ejectment, commenced October 1st, 1861, by the appellants against the appellee. The plaintiffs claimed title under the heirs of one John Fridley, and the defendant, under a sale by his administrator to pay debts. The question involved was the validity of the administrator’s sale. The points presented are stated in the opinion of the court.

Writ of Error to the Circuit Court of Coles county; the Hon. Charles H. Constable, Judge, presiding. This was a bill in chancery, brought by Stephen B. Moore, against Thomas A. Marshall and Isaiah H. Johnson, to the May term, 1862, of the Coles Circuit Court.

J. Sublet, Judge, presiding. This was an action of assumpsit. The declaration contains three special counts and common counts.

James Harriott, Judge, presiding. This was an action of ejectment, brought by the appellees against the appellants. The only point considered in this court was the action of the Circuit Court in setting aside a former judgment by default, and the facts are fully stated in the opinion.

Writ op Error to the Circuit Court of Macoupin county; the Hon. Edward Y. Rice, Judge, presiding.

<p>1. Chattel heal—when purchased hy administrator, is assets. Where an administrator has purchased a chattel real belonging to his intestate in his lifetime, and charged himself with the rents and profits thereof, and treated it as assets of the estate, he will not be allowed afterwards to claim it as his own property, but must account for it as assets.</p> <p>2. Answer on oath—when oath is waived, is hut pleading. When the oath to an answer is waived by the bill, an answer on oath is but a pleading, and does not require the testimony of two witnesses to overcome it. Held, that it was improper practice for a solicitor to put in an answer for his client under oath, where the oath is waived.</p>

Writ of Error to the Circuit Court of Cass county; the Hon. James Harriott, Judge, presiding. This was a prosecution for a penalty under an ordinance of the city of Beardstown, tried at the September term, 1864, of the Circuit Court. There was judgment for the defendant, and the plaintiff below sued out a writ of error. The facts appear in the opinion.

Writ of Error to the Circuit Court of Morgan county; the Hon. D. M. Woodson, Judge, presiding. This was an action of assumpsit brought by Mathew Stacy, administrator of Charles Hardin, deceased, against Samuel Cobbs and Samuel Williamson, upon a promissory note, executed by them to Hardin, in his lifetime, for $433.60, dated the 4th day of December, 1859, and payable twelve months after date, with ten per cent, interest per annum.

C. H. Constable, Judge, presiding. Appellee brought suit, for forcible entry and detainer, against appellant, before a justice of the peace of Edgar county. Trial was had on the 26th day of May, 1864, and judgment was rendered against appellant. Appellant appealed to the Circuit Court of Edgar county, and filed an appeal bond with the justice of the peáce, which was accepted and approved by him.

Silas L. Bryan, Judge, presiding. This was a bill in chancery, filed by the appellees at the April term of the Randolph Circuit Court, for the purpose of determining the title to certain personal property claimed by both the appellants and appellees, under the will of John Strahan, deceased. The court decreed in favor of the complainants, and the defendants appealed. The appeal was transferred, by consent, Rom the First to the Second Grand Division.

L. Higbee, Judge, presiding. This was an action of ejectment, commenced Aug. 6, 1861, for the September term, 1861, of the McDonough Circuit Court, by appellee against appellants. The declaration claims, in fee simple, the undivided two-thirds of the S. W. 21, 6 bl., 4 W., 4th P. M., situated in McDonough county, Illinois. The defendants pleaded the general issue.

Writ op Error to the Circuit Court of Morgan county ; the Hon. D. M. Woodson, Judge, presiding. The defendants in error commenced an action of assumpsit against the plaintiff in error, by attachment. The affidavit on which the writ of attachment issued, was dated August 11,1862, and the writ made returnable to the September term of the Morgan Circuit Court. The writ was levied on certain real estate in Morgan county, and duly returned.

C. L. Higbee, Judge, presiding. This was a bill in chancery, filed at the October term, 1858) of the Circuit Court of Schuyler county, by the appellants, to compel a conveyance by the appellees of their title to certain lands. The Circuit Court denied the relief to the extent prayed by the appellants, and they brought the case to this court. The facts appear in the opinion.

Wbit op Ebbob to the Circuit Court of Morgan county ; the Hon. D. M. Woodson, Judge, presiding. This was a suit in chancery, commenced on the 10th day of August, 1861, in the Morgan Circuit Court, by James Langley, against Alexander M. Wright and Manervia Wright, to foreclose a mortgage.

S. L. Bryan, Judge, presiding. This was a bill for injunction. The bill sets forth that the trustees of the State Bank of Illinois are the owners in fee simple of the south-east quarter of Section 17, Township 2 north, Range 2 west of third principal meridian. That the appellant purchased said land in fee simple on the 26th November, 1862, and received from the trustees a bond for a deed, which is made an exhibit. That appellant is the equitable owner of said land.

Charles E. Starr, Judge, presiding. This was a bill in chancery filed by the appellee against the appellant to avoid a contract for the exchange of lands on the ground of fraudulent representations, made by the appellant. The bill was filed in November, 1863, and the summons made returnable to the February term, 1864, and coming on for hearing at a subsequent term, the court decreed in favor of the complainant, whereupon the defendant appealed.

Writ of Error to the Circuit Court of Monroe county; the Hon. Silas L. Bryan, Judge, presiding. This was an agreed case, submitted to the court below for decision on agreement of the facts of the case, as follows: Peter Warren leased, for the years 1862 and 1863, certain premises of Miles, at an annual rent of one third of the crop, and in the fall of 1862 sowed twenty-five acres of wheat which was growing on the premises subject to any lien the landlord might have for rent.

Agreed case from the Circuit Court of Greene county; the Hon. D. M. Woodson, Judge, presiding.

Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward T. Eice, Judge, presiding. This was a motion made at the October term, 1864, of the Circuit Court of Sa.ngamon county, by the defendant in an execution, to quash the writ. The grounds of the motion and the facts of the case are stated in the opinion of the court.

Writ of Error to the Circuit Court of Coles county; the Hon. Charles H. Constable, Judge, presiding. This was an action on the case, brought by Samuel Todd against the St. Louis, Alton and Terre Haute Bailroad Oo., to the September term, 1864, of the Coles Circuit Court. The action was for negligence, in killing two horses of plaintiff on their road, by reason of a failure of the company to fence their road, as required by the statute.

Writ op Error to the Circuit Court of Sangamon county; the Hon. E. Y. Rice, Judge, presiding. This was an action brought by plaintiff in error, against defendant in error, before a justice of the peace, to recover the amount of a foreign judgment rendered in St. Louis county, Mo., against defendant and in favor of the plaintiff.

Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward Y. Bice, Judge, presiding. Defendant in error recovered a judgment against plaintiff in error, in the Sangamon Circuit Court. He, during the term at which the judgment was recovered, caused an execution to issue, which was afterwards duly returned, no property found.

Writ of Error to the Circuit Court of St. Clair county; the Hon. J. Gillespie, Judge, presiding. Berry was indicted at March term, 1864, for gaming—playing at cards for money, in St. Clair county. Trial at October term following by the court with consent of parties. The prosecution proved the defendant guilty as charged, and that the offense was committed in the city of Belleville, in said county.

<p>1. Forcible entry and detainer — appeal in, enables party to take advantage of defective appeal 'bond,. As the Circuit Court has no original jurisdiction in an action of forcible entry and detainer, the appearance of a party in that court, when the case is there by appeal, does not prevent Mm from taking advantage of defects in the appeal bond.</p> <p>2. Appeal in—when to be dismissed. Eor substantial defects in the bond, if no motion be made for leave to file a sufficient bond, it is right to dismiss the appeal when the cause is called for trial.</p> <p>3. Same—when no leave asked to file sufficient bond. The bond, in this case, was not a substantial compliance with the statute, and the appeal was properly dismissed, no leave being asked to file a sufficient bond.</p>

Writ op Error to the Circuit Court of Macon county; the Hon. Charles Emerson, Judge, presiding. This was an action of assumpsit, brought by defendant in error, against plaintiff in error, on two promissory notes. One was for two thousand and the other for eight thousand dollars, both payable to defendant in error, one day after date; the former with six and the latter with one per cent, interest. They both bear date the 13th of March, 1861, at Decatur, Illinois.

Writ of Error to the Circuit Court of Macoupin, county; the Hon. Edward Y. Rice, Judge, presiding. This was a bill in chancery, filed at the March term, 1864, of the Macoupin Circuit Court, by the plaintiff in error, to enjoin the sale of a homestead levied on under execution. There was a decree pro forma dismissing the bill, and the plaintiff sued out a writ of error. The facts are stated in the opinion.

<p>Writ of Error to the Circuit Court of Macon county.</p>

Wbit op Ebrob to the Circuit Court of Ford county; the Hon. David Davis, Judge, presiding. This was an action of debt, commenced by Uzziel Kanouse against Jacob A. Kanouse and Jacob C. Mahan, to the September term, 1859, of the Livingston Circuit Court. The venue was afterwards changed to the county of Ford.

D. M. Woodson, Judge, presiding. This was a bill in chancery, filed by the appellants against the appellees, at the July term, 1862, charging fraud against the administrators of Philip Jarboe, deceased, in the settlement of their accounts, and seeking to make liable the heirs of the securities of the administrators, so far as they had inherited property from such securities.

Writ of Error to the Circuit Court of Coles county; the Hon. Charles H. Constable, Judge, presiding.

Clair; the Hon. J. Gillespie, Judge, presiding. This was an action of debt, commenced at the June term, 1863, in the name of the people against the appellants, upon a bond given before a justice of the peace, in a prosecution for bastardy, to secure the attendance of one of the obligors at the Circuit Court.

Writ of Error to the Circuit Court of Jersey county; the Hon. D. M. Woodson, Judge, presiding. This was a suit in equity, brought in the Jersey Circuit Court to the April term, 1862, by Napoleon B. Lucas, and Lydia Lucas, his wife, against John Silsbe. The bill alleges that Lucas, on the 3rd day of January, 1856, borrowed of Silsbe the sum of $1,574.90, for which he executed his note, payable on the 3rd day of January, 1858, with ten per cent interest per annum.

D. M. Woodson, Judge, presiding. This was an ejectment for four and seventy-seven one hundredths acres on west side of south-east quarter of Section 81, Town 9 north, Range 11, in said county. Pleas, not guilty, and not in possession of the premises. The evidence in behalf of the plaintiff was as follows: Richards testified, that he aided, twenty-five years since, in survey of land, to ascertain corner in question.

Writ of Error to the Circuit Court of Macon county; the Hon. Charles Emerson, Judge, presiding. This was a petition to have established a mechanics’ lien, filed by the defendant in error against the plaintiffs in error, at the July term, 1862, of the Circuit Court of Macon county. There was a decree in favor of the complainant against a portion of the defendants, to which they sued out a writ of error. The facts are stated in the opinion of the court.

Writ of Error to the Circuit Court of Christian county; the Hon. Edward Y. Bice, Judge, presiding. This was originally a suit before a justice, and being taken by appeal to the Circuit Court, at the October term, 1863, was, on motion of defendant, dismissed. The defendant sued out a writ of error. The facts, so far as they relate to the point decided, appear in the opinion.

Writ of Error to the Circuit Court of Macon county; the Hon. Charles Emerson, Judge, presiding. This was a suit in equity, commenced at the May term, 1856, of the Circuit Court of Vermillion county, by James Mix, against David White, to enforce a specific performance of a contract relative to certain lands in that county.

M. Woodson, Judge, presiding. This was a bill in chancery, in which a decree pro forma was rendered in the court below, at the October term, 1864, and which was brought to this court upon the following agreed state of facts: In 1856, or the early part of 1857, defendant Newman and seventeen others, who are still living, and whose names appear as such in the answers of defendants, and on the original articles in evidence in the case, entered into an association or company,…

Writ of Error to the Circuit Court of Macoupin county; the Hon. E. Y. Rice, Judge, presiding. This was a bill in chancery, filed in the Circuit Court of Macoupin county, at the May term, 1852, by defendant in error, against Wm. C. Smalley, John B. Smalley, Ira 0. Haven, Franklin Morrison, and William H. Hamilton. The bill alleges, that complainant was the holder of a promissory note, dated January 18th, 1851, executed by defendant, William 0.

Writ of Error to the Circuit Court of Macon county; ’ the Hon. Charles Emerson, Judge, presiding. This was a bill in chancery, exhibited by the defendant in error at the November term, 1861, of the Circuit Court, to set aside a sheriff’s deed. The decree was in favor of the complainant, and the defendants sued out a writ of error. The facts are stated in the opinion of the court.

Writ of Error to the Circuit Court of Morgan county; the Hon. D. M. Woodson, Judge, presiding. On the 27th day of June, 1862, the plaintiffs commenced their suit in debt against the defendants, for a penalty for alleged violations of an ordinance of the town of Jacksonville against the sale of intoxicating liquors within that town, before William Gr.

Writ of Error to the Superior Court of Chicago. On the 16th day of October, 1857, Zimmerman and Farwell gave to Greenebaum. Brothers the following- promissory note: “ $750.00. Chicago, October 16, 1857. Thirty days after date, for value received, we promise to pay to Greenebaum Brothers, or order, the sum of seven hundred and fifty dollars, with interest after due at ten per cent, per annum, for money borrowed, payable at the office of Greenebaum Brothers, Chicago.

Samuel L. Richmond, Judge, presiding. ■ This was an action of assumpsit, instituted in the court helow by Thomas W. Shepard against Edward F. Pulsifer.

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

Writ of Error to the Circuit Court of Peoria county; the Hon. M. Williamson, Judge, presiding. ''This was an action of assumpsit, brought by the defendant in error, as the indorsee of four promissory notes, against the plaintiff in error, as the maker. The declaration was filed on the 21st day of January, 1864, and contained four special counts, one on each note, and the common counts.

John M. Scott, Judge, presiding. This was a suit in chancery, instituted in the court below by Aaron W. Walden, against Asahel Gridley.