Volume 37 — Illinois Reports

This was an action of covenant brought by George W. Cage, in the Superior Court of Chicago, against William Lunn and William H. Lunn, for the recovery of rent claimed to he due, under a lease, for a hotel and its appurtenances in Chicago.

Charles K. Starr, Judge, presiding. This was an action of assumpsit brought in the Circuit Court of McDonough county, by attachment. The declaration was filed in that court, and by its order, the venue was changed to Livingston county, on motion of the plaintiff. The affidavit for the attachment stated the debt to be due from the defendants, at fifteen hundred and forty-six dollars and thirty-five cents.

Writ op Error to the Circuit Court of La Salle county; the Hon. M. C. Hollister, Judge, presiding. This was a bill in Chancery, filed by the defendant in error at the June term, 1858, against the plaintiff in error to compel a conveyance of the legal title of a tract of land. There was a decree for the complainant, and the defendant sued out a writ of error. The facts appear in the opinion.

Writ oe Error to the Circuit Court of Kankakee county; the Hon. Charles'R. Starr, Judge, presiding. This was an action of replevin, commenced in the Kankakee Circuit Court, by William M. Bruce, against Ryland D. Sherman, to the April term, 1863.

M. Williamson, Judge, presiding. This was an action of forcible entry, brought by Charles Ballance against George Leonard, before a Justice of the Peace of Peoria county, where a trial was had and a verdict and judgment for the plaintiff. On appeal to the Circuit Court of that county, there was a . verdict and judgment for the defendant.

O. L. Davis, Judge, presiding. This was a proceeding in chancery commenced in 1849 for the purpose of settling the rights of different creditors in the proceeds of a mortgage which had been given for their common benefit.

Benj. R. Sheldon, Judge, presiding. This was an action of trover, brought by Cyrus II. McCormick, William S., McCormick and Leander J. McCormick, against Henry McCloskey, to the August term, 1864, of the Jo Daviess county Circuit Court. The plaintiffs counted for fifty barrels of salt. The defendants filed th,e plea of not guilty; upon which there was an issue to the country. At the October term, 1864, a trial was had before the court and a jury.

C. B. Lawrence, Judge, presiding. This was a Bill in Chancery to foreclose a mortgage executed by Hiram Mills and Martha A., his wife, to Gideon Ives and Elmore Dennison, for lots three and four in block fourteen, in the town of New Boston, in Mercer county, to secure the payment of $685.45. The mortgage bore date April 9th, 1859. The bill is in the usual form to foreclose a mortgage.

M. E. Hollister, Judge, presiding. This was an action of assumpsit, brought by the appellees against the appellants, as partners, at the March term, 1863. On a demurrer to the replication, there was final judgment for the plaintiffs, and the defendants appealed. The facts appear in the opinion of the court.

<p>Writ of Error to the Circuit Court of Bock Island county; the Hon. Ira 0. Wilkinson, Judge, presiding.</p> <p>This was a suit in Chancery, brought by Miles W. Conway, against Philander L. Cable and Cornelius Lynde, Jr., to the January term, 1863, of the Bock Island Circuit Court. The bill alleges that complainant had been for five'years past, and then was, the owner in fee simple, of lots one, two, seven and eight, in block four, in an addition to the town of Moline, in that county, and during that time had been in actual possession, and occupancy thereof. It alleges that a fraudulent combination had been entered into, prior to the sale of lands for taxes in 1860, by the collector, supervisors, and school directors, by which purchasers were only required to pay, at the time of purchasing lands, or town lots for delinquent, taxes, the amount due the State. That at the sale, defendants, under this arrangement, became the purchasers, for the taxes of 1858-9, and obtained a sheriff’s deed for the lots, in December, 1862, under the sale.</p> <p>The bill charges, that the sale was irregular in various particulars, such as, an insufficient assessment, an insufficient notice, and an invalid judgment, under which the sale was made; that the defendants became the purchasers at the sale, under the agreement, which was fraudulent, and only paid the taxes due the State. The bill prays that defendants be required to surrender the deed, and that it may be cancelled, and the deed and sale set aside, so far as it may affect complainant, and for a perpetual injunction and for general relief.</p> <p>The defendants filed their joint and several answer. They admit that such an agreement was entered into, but say that they were to furnish the money necessary to pay the taxes due the State, on land they might purchase, which, with interest and expenses, was to be first refunded to them, out of redemptions, and the remainder of the proceeds of redemptions was to be divided amongst the parties. The answer also alleges, that there was a combination entered into by the citizens of the county, to prevent a sale of lands for delinquent taxes, and that it thereby became necessary that the agreement complained of should be made, to prevent the success of the combination formed to prevent the sale.</p> <p>It is likewise admitted, as charged in the bill, that there are defects, in not complying with the revenue laws, in conducting the sale of 1860, such as would prevent defendants from recovering the premises by ejectment. But it is claimed that these defects were cured by an act of the general Assembly, adopted on the 25th day of February, 1861. It declares that the arrangement entered into between defendants, and the officers conducting the sale, and managing the affairs of the county, is ratified and legalized. They also set up as a defense, and rely upon the act of the 21st of February, 1861, (Sess. laws, p'. 170,) which declares, that all deeds hereafter made for lands sold for taxes, shall be void if the taxes have been paid before the sale, or the land was not subject to taxation, or has been redeemed, or if the notice required by the constitution has not been given, or the description of the land was not sufficiently definite; and it declares that the validity of all such deeds shall not be questioned, in any suit or controversy, for any other cause, unless the party desiring to do so, shall tender to the claimant under such deed, or deposit in court for his use, the amount of redemption money now required by law, with ten per cent, interest per annum, from the date of the deed till the time of such tender or deposit. After which the validity of the deed may be.questioned, in the same manner as was previously allowed by law.</p> <p>A hearing was had in the court below, when a decree was entered as of January term, 1863. The decree finds that the deed made by the sheriff to defendants being subsequent to, is within the terms of subject to the statute, of February 21st, 1861, entitled “ An act to amend the revenue law,” and that said act is constitutional. The decree dismisses the bill. The case is brought to this court, by writ of error, to reverse the decree; and the following errors are assigned:</p> <p>1. “ The Circuit Court erred in rendering a decree against plaintiff in error, and in dismissing his bill.” .</p> <p>2. “ The Circuit Court erred in not rendering a decree in favor of plaintiff in error in said cause.”</p>

On the 6th of December, 1858, James McEerney filed an affidavit before DeWolf, a Justice of the Peace of Cook county, on which a summons was issued against Lucius Eewberry, as garnishee of one E. H. Sanders, which was returned by the constable on the same day, served, by reading to Eewberry.

Writ oe Error to the Circuit Court of Bureau county; the Hon. M. E. Hollister, Judge, presiding. This was an action of replevin brought by the plaintiff in error against the defendant in error, at the April term, 1861, of the Circuit Court of Bureau county, to recover possession of a building. The verdict and judgment having been rendered against the plaintiff below, he sued out a writ of error. The facts appear in the opinion of the court.

E. 8. Williams, Judge, presiding. This was an action of trespass, brought by Abraham L. Winne, against David S. Hammond, Sheriff, and John A. Kelson, his deputy, in the Cook Circuit Court; and the declaration was filed to the January term, 1864. The plaintiff counts for a trespass in levying an attachment, upon a number of fire proof safes, as the property of Lewis Lillie, the defendant in the attachment.

James Harriot, Judge, presiding. This was a bill in chancery in the Circuit Court of Tazewell county brought by John Barnard against Abraham Brown and Amanda, his wife, Samuel P. Bailey and Benjamin S. Prettyman, to foreclose a mortgage executed by Brown and wife, to Bailey, on the 14th of October, 1853, and assigned by Bailey to Barnard. Prettyman was made a defendant on account of some supposed interest in the premises.

Writ of Error to the Circuit Court of Putnam county; the Hon. Samuel L. Richmond, Judge, presiding.

<p>1. Answer in Chancery—if sworn to can only be overcome by two witnesses. When complainant requires the answer of defendant, under oath, and he so answers, it can only be overcome by the evidence of two witnesses, or by the evidence of one, and circumstances equal in weight to that of another.</p> <p>2. Promissory Notes—assignment prima facie bona fide. When promissory notes have been assigned, the presumption will be indulged that it was for value, and bona fide. Persons questioning the fairness of the transaction, to defeat the assignment, must prove that it was not for value, or that it was made for fraudulent purposes.</p> <p>3. Insolvency of Holder—not evidence of fraud'. Proof that the holder of a note was insolvent at the time the assignment was made does not prove the transfer to have been fraudulent. Nor does the fact that the assignor was the nephew of the assignee prove the transfer fraudulent.</p>

Edward L. Mayo, County Judge, presiding. This was an action of assumpsit upon a certificate of deposit. The first count is upon the instrument as a promissory note.

Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. This was an action of assumpsit brought by the plaintiffs in error against the defendants in error at the July term, 1863. Verdict and judgment were for the defendants, and the plaintiffs sued out a writ of error. The facts appear in the opinion.

Writ of Error to the Circuit Court of Iroquois county; the Hon. Charles E. Starr, Judge, presiding. This was a bill in chancery by Dinah Morris, Andrew E.. Mandeville and James M. Mandeville, against Michael Hogle, A. C. James, Jacob A. Whiteman, Hann M. West-brook and David Morford, filed on the 23d of March, 1859, in the Iroquois Circuit Court.

Writ oe Error to the Circuit Court of Woodford county; Hon. Samuel L. Richmond, Judge presiding. This was an action of assumpsit originally commenced in the Circuit Court of Tazewell county, by Almon G. Danforth, against Benjamin E. Miles, Wells'4Andrews, Jr., and John A. Andrews, and by a change of venue, taken to the county of ■ Woodford.

Writ op Error to the Supeiior Court of Chicago, Hon. Grant Goodrich, Judge, presiding. This was an action of replevin commenced at the February term, 1859, by Horace White against the plaintiffs in error, to recover certain personal property claimed by him under a chattel mortgage. He died pending the suit and the defendants in error were made parties plaintiff as his executors. They recovered a verdict and judgment and the defendants below sued out a writ of error.

Writ of Error to the Circuit Court of Warren county; the Hon. Charles B. Lawrence, Judge, presiding. The plaintiff in error, on the 23d day of February, 1863, filed his bill in chancery, in the nature of a creditor’s bill, against the defendants in error, in the Warren Circuit Court.

Writ os Error to the Circuit Court of Henry county; the Hon. I. 0. Wilkinson, Judge, presiding. This was a bill in chancery in the Henry Circuit Court by Hiram Yarnum against Kate C. A. A. Cowl and W. Augustus, Cowl, her husband, to enforce a vendor’s lien. A decree passed in favor of the complainant, and'the ease is brought here by writ of error. The only error assigned, is the decree upon the facts, which are fully stated in the opinion of the court.

Writ oe Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. This was an action of assumpsit brought by the defendant in error against the plaintiff in error at the June term, 1858. The plaintiff recovered a verdict and judgment, and the defendant sued out a writ of error. The facts are stated in the opinion of the court.

<p>Writ oe Error to the Circuit Court of Henry county; the Hon. Ira 0. Wilkinson, Judge, presiding.</p> <p>This was a suit in chancery, in the Henry Circuit Court, brought by Ellis Blackwell, Maria Blackwell, Eliza Ann Gibbs, Sarah E. Gibbs, Webster C. Gibbs, Lauretta C. Gibbs, and Ellen L. Gibbs, against Bussell Gibbs and Frederick P. Brown. The bill alleges, that Asahel Gibbs died, on the 17th day of July, 1859, intestate, leaving complainant, Eliza Ann Gibbs, widow, and the other complainants his sole heirs at law. *</p> <p>That in the lifetime of Asahel, defendant Bussell Gibbs, on tne 23d day of August, 1855, purchased of defendant Brown, the S. W. J, T. 17, N. B. 2, E. of the fourth meridian, and took a bond for a deed therefor. That on the 20th of September, 1857, Asahel Gibbs agreed with Bussell Gibbs, that he would pay Brown $169, of the purchase money, and Bussell agreed that Brown should convey to Asahel when he should make the payment, forty acres, in the Northeast corner of the quarter section, ninety rods long and seventy rods wide. That Asahel made the payment to Brown, and Bussell gave him a written order to Brown for the conveyance.</p> <p>That Asahel presented the order to Brown, who made the deed, but held it as an escrow. That Asahel took possession, and erected a house and broke and fenced it, and made other lasting and valuable improvements on the land. That Bussell Gibbs on the 13th of January, 1859, told Brown that Asahel preferred the land in a square form, and induced Brown to convey the whole quarter to him, under a promise that he would make a deed to Asahel, for his portion of the land. That Bussell refused to make the conveyance.</p> <p>That Bussell pretends, that Asahel was indebted to him as executor of their father’s estate. They pray Bussell be compelled to convey the forty acres to them, or that the deed from Brown to Bussell as to the forty acre tract be declared void and Brown be compelled to convey to them.</p> <p>Brown answered the bill, and admits that he sold the quarter of land to Bussell Gibbs and gave a bond for a conveyance. That he is informed, that Bussell and Asahel made the agreement charged in the bill. That Asahel paid him the $169, and presented an order on him from Bussell Gibbs, for a conveyance of the forty' acres, which he made, but did not deliver, because Asahel did not call for it; that Asahel took possession of the land and made the improvements as alleged in the bill. That about a year afterwards, Bussell stated to respondent that Asahel wanted the land in a square form, and desired him to convey to him, and promised that he would convey to Asahel; that acting in good faith he did convey to Russell.</p> <p>Russell Gibbs answered admitting his purchase of Brown; his sale to Asahel as charged in the bill; but insists that the land was to be conveyed to Asahel in trust. That he held property of John Gibbs, an idiot, as his trustee, and that the land was paid for out of that fund. Admits that he gave the written order to Brown, to convey to Asahel, and that he told Brown that Asahel wanted the land in a square form. Denies fraud in procuring the deed, but admits that it was in accordance with an agreement between himself and Asahel. Admits that Asahel made the improvement on the land as charged. Admits that Asahel and his widow had taken care of John Gibbs, the idiot; but insists that the rents and profits of John’s property were more than sufficient to pay therefor. And that complainants are the heh-s at law of Asahel Gibbs. He offers to convey the forty acres to any suitable person who may be appointed trustee for John Gibbs.</p> <p>Replications were filed to the answers. And a cross bill was filed by Russell Gibbs- praying the appointment of a trustee for John Gibbs, Jr.,’which was also answered.</p> <p>On the hearing in the court below, a decree was rendered, cancelling the conveyance, for the forty acre tract described in the bill, from Brown and requiring him to convey the same to complainants by a good and sufficient deed, and dismissing the cross bill of Russell Gibbs; and that he pay the costs.'</p> <p>Defendants bring the case to this court and assign the following errors:</p> <p>1. The court erred in rendering the decree aforesaid in manner and form- aforesaid.</p> <p>2. The court erred in rendering- the decree aforesaid without having the proper parties before the court.</p>

J. M. Scott, Judge, presiding. This was an action of replevin, commenced in the Circuit Court of McLean county, hy William Brownell against Horval-Dixon, the sheriff of that county. The declaration is in the cepit and detinet, for two billiard tables.

Writ oe Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding. This was an action of assumpsit brought by the defendant in error against the plaintiff in error at the December term, 1862. The plaintiff below had judgment, and the defendant sued out a writ'of error. The facts are sufficiently stated in the opinion.

S. L. Richmond, Judge, presiding. This was an action of ejectment, commenced by George Ford, against William Truesdale, on the 5th day of December, 1860, in the Peoria Circuit Court, to recover lot eleven, in block eighteen, in the city of Peoria. To the declaration, the plea of the general issue was filed. Afterwards, at the February term, 1864, of the court, a trial was had before the court and jury.

Madison E. Hollister, Judge, presiding. This was a bill in chancery in the Circuit Court of LaSalle ■ county, filed by Calvin Griswold, against John R. Snyder, to foreclose a mortgage.

Writ or Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding. This was an action of assumpsit brought at the September term, 1862, by the plaintiffs in error against the defendants in error upon certain promissory notes. The plaintiffs recovered verdict and judgment for only a part of the sum claimed, and sued out a writ of error. The facts appear in the opinion of the court.

Writ oe Error to the Circuit Court of Mercer county; the Hon. Charles B. Lawrence, Judge, presiding. This was a suit in chancery, commenced in the Mercer Circuit Court, to the April term, 1862, by R. C. Cabeen, against John Mulligan. The object of the hill was to set aside a sale and deed made by the sheriff to defendant, of a house and lot of ground, sold under execution, which is claimed to have been exempt from sale, under the homestead exemption law.

Charles B. Starr, Judge, presiding. This was an action of assumpsit in the Kankakee Circuit Court, by Louis Deliere against Charles Chiniquy, and verdict and judgment for the plaintiff. The case is brought here by the defendant, by appeal, and the following errors assigned 1. In giving the plaintiff’s intentions. 2. In refusing to grant a new trial, and in giving judgment on the verdict. The facts are sufficiently stated in the opinion of the court.

<p>Writ or Error to the Superior Court of Chicago.</p> <p>This was an action on the ease brought by Grosvenor & Co., against Magill & Latham. In the court below, the verdict and judgment-were for the defendant. The facts appear in the opinion of the court.</p>

Madison E. Hollister, Judge, presiding. This was an action of forcible entry and detainer, brought by Thomas Pratt, before a justice of the peace of Bureau county, against William A. P. Blanchard and William McLaren. The forcible entry was charged to have been on the southwest quarter of section twenty-six, in town fifteen north, range six, east of the fourth principal meridian, in the county of Burean.

Writ of Error to the Circuit Court of Iroquois county; the Hon. Charles E. Starr, Judge, presiding. This was a suit originally commeneed by Samuel C. Taylor against EranMin Elijah before a justice of the peace to recover the value of certain corn. On an appeal to the Circuit Court and trial there, the plaintiff recovered a verdict and judgment for $58.00, whereupon Elijah sued out a writ of error. The facts are stated in the opinion.

Writ oe Error to the Circuit Court of Livingston county; the Hon. Jonathan Duee, Judge, presiding.' . This is an action on the case brought by Michael O’Brien against Curtis E. Bennett at the June term, 1864, of the Circuit Court of Livingston county, for the value of a mare. The plaintiff recovered a verdict for $120, on which the court rendered judgment, and the defendant appealed. The facts appear in the opinion of the court.

Madison E. Hollister, Judge, presiding. This was a hill in chancery in the Circuit Court of Bureau county exhibited by Benjamin Newell and others, against the county of Bureau, and Charles Baldwin, drainage commissioner, to enjoin the collection of certain notes executed by them, on the purchase of certain swamp lands, sold by Bureau county, and purchased by the complainants.

Writ oe Error to the Circuit Court of Bureau county; the Hon. M. E. Hollister, Judge, presiding. This was an action on the case brought by Juliet Pease, a minor, by her next friend, Albert Morgan, at the December term, 1864, of the Circuit Court in Burean county, against Charles Hubbard. The facts appear in the opinion of the court.

Writ of Error to the Circuit Court of Cook county; the I-Ion. E. S. Williams, Judge, presiding. This was an action on the ease for deceit, brought in the Cook Circuit Court, by Lansing Morgan, Gilbert Morgan and Edwin L. Furniss, -against James H. Eames and William Eordham. The defendants pleaded not guilty, and there was a trial, and verdict and judgment for the plaintiffs, to reverse which, the defendants bring this writ of error.

<p>1. Sale of property. A father being at the point of death on a barge loaded with lumber belonging to him, gave to his son, who was with him, a bill of sale of the lumber, and directed him, in the instrument, to pay from the proceeds of the lumber a balance due to the persons from whom it was purchased. The son was of age and the father was to some extent indebted to him. Held, no fraud being shown, that the administratrix of the father acquired no title to the lumber by her letters of administration.</p> <p>2. Practice—diligence in searching for written instruments. Where an instrument has never been in the the custody or control of a party wishing to use it, and is of such a character that the law does not presume it to have been in his control, he will not be required to show a diligent search among his papers before giving parol evidence of its contents.</p> <p>3. Same. Where it appears that the duces tecum clause in a subpoena would have been unavailing, there is no want of diligence in failing to insert it.</p>

Writ oe Error to the County Court of La Salle county; the Hon. P. K. Lelahd, Judge, presiding. This was action of replevin brought in the County Court of La Salle county, by George A. Belcher and William H. Belcher, against Peter Yan Duzen, for certain farming implements, some household and kitchen furniture, and a lot of cane seed. The defendant pleaded, non detinet. 2. That the property was not the property of the plaintiff; and 3. That is was the defendant’s property.

<p>Appeal from the Circuit Court of Will county; the Hon. Jesse 0. Hortoh, Judge, presiding.</p> <p>This was a bill in chancery to quiet title. The facts appear in the opinion so far as they are material the points decided.</p>

Madison Hollister, Judge, presiding. This was an action of assumpsit in the Kendall Circuit Court, hy Hiram Goodwin, against Lewis B. Judson, as endorser of a note of the terms following: $586.33. Oswego, 18th Dec., 1857. Four years after date, I promise to pay to the order of Lewis B. Judson, five hundred and eighty-six 33-100 dollars, at the County Clerk’s office, with interest after due at ten per cent., value received. E. G. AMENT.

<p>Appeal from the Circuit Court of La Salle county; the Hon. Madison E. Hollister, Judge, presiding.</p> <p>This was an application by a purchaser under a decree of foreclosure and sale, for a writ of assistance. The facts are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court of Marshall county; the Hon. Samuel L. Richmond, Judge, presiding. ■</p> <p>This was a hill in chancery brought at the October term, 1864, by children of Anthony Scheuster, against his widow for the purpose of enjoining the sale of certain real estate by her as executrix of Scheuster. The facts appear in the opinion.</p>

<p>Writ of Error to the Circuit Court of Iroquois county; the Hon. Charles B. Starr, Judge, presiding.</p> <p>This was a motion in the Circuit Court of Iroquois county, at the June term, 1863, to set aside the sale of certain lands made by order of that court, in a suit for partition.</p> <p>The reasons assigned in support of the motion were:</p> <p>1. Because the petition was not sworn to before the same was filed.</p> <p>2. Because there never was any process issued or served on the defendants.</p> <p>3. Because their appearance was never entered in said cause by their authority.</p> <p>4. Because the decree of the court that purported to have been made by said court never was signed by any one purporting to be acting as the judge of said court.</p> <p>5. Because the complainants in said petition are nonresidents of the State of Illinois, and that no bond was filed for costs, as required by law.</p> <p>6. Because the petitioners have not all sued in the proper title or style.</p> <p>7. Because the court had no jurisdiction over the persons of these defendants.</p> <p>8. Because the attorneys that entered the appearance of the said defendants had no right or authority to do so.</p> <p>Affidavits and counter affidavits were read on the motion, and it was denied by the court.</p> <p>The following affidavits were read in support of the motion, at the November term, 1863:</p> <p>George It. Dunning says he is one of the sons and heirs at law of deceased; that William H. Dunning and others, filed this petition for partition for the division of lands described in petition; and that this affiant was made a defendant in the cause. He admits that A. B. Hoff and Kinney filed answers for defendants and waived service of process; and that Kinney and Hoff had no right or authority to enter their appearance or waive service of process from this affiant or any of the defendants in the cause; that they never employed him or either of them; and that the lands are worth $25 per acre.</p> <p>Margaret King says that she is a daughter of deceased, and one of the defendants in the cause; that Kinney and Hoff, attorneys, did file answers to the petition for defendants at the June term, A. D. 1863; but denies that she or any of the defendants, to her knowledge, ever employed or authorized Hoff or Kinney to enter her appearance and to waive service of process on this affiant or either of the defendants.</p> <p>Oren King says that he is the husband of Margaret King, late Margaret Dunning, and that he is one of the defendants; that the lands are worth $25 per acre; and that Kinney and Koff had no authority to enter his appearance for either of the defendants; and that he, or either of them was never employed in the cause. This affiant says that in conversation with Koff, he- (Koff,) stated that he entered his appearance through mistake.</p> <p>A. G. Willard says that he is well acquainted with the lands, and believes the same to be worth $25 per acre; and that there are about four hundred and sixy acres of land.</p> <p>Samuel Warrick says that' he is well acquainted with the farm; that he believes the lands to be worth $25 per acre; that there are about four hundred and sixty acres of land.</p> <p>On the 19th day of February, 1864, there were filed in support of the motion, the affidavits of Walter Noble, Amos 0. Wkiteman, John C. Noble and George P. Ketckum, going to show that the lands named in the petition were worth $25 per acre, and that the same could have been divided without any damage to the farm, or to the injury of the heirs.</p> <p>At the March term, 1864, the affidavits on the part of the plaintiffs in the motion, of Achshah Dunning, was read, denying she employed Koff and Kinney to enter her appearance, or the appearance of any of the defendants, and the waivers of process on the part of the defendants.</p> <p>William H. Punning stated in substance, that a few days previous to the June term, 1863, of the Circuit Court, he came from his residence in Wisconsin, to Middleport, Iroquois county, to take some proceedings for himself, and the complainants for whom he was acting in the premises, for the partition and assignment of dower to Achshah Dunning the widow, in what was known in that county, as the “ Dunning Farm ”—that a few days before the sitting of the court at the June term, he called on the widow and Margaret King, two of the defendants in the partition suit, to make some arrangements about a partition and the assignment of dower for the widow in that farm; that he told them, that he wished it done at the coming June term; that they hoth objected to taking any steps to have the dower set off, alleging it would damage the sale. The widow remarked, that she was old and did not wish to live on the farm, and would not if the farm was given to her, but they both stated they were willing, and anxious to have the farm sold, provided the widow could have in money, the portion to which she was entitled, in lieu of dower. We then proposed to them to make a mutual-arrangement to get a sale of the farm, and if it could be effected, the widow to have an annuity or money in lieu of her dower, and to expedite the business and save costs, he proposed to proceed at once and get a decree at the coming June term. This they all agreed to, and agreed also, to em- • ploy attorneys and waive all process and come into court the next June term, and obtain a decree as proposed, provided that George it. Dunning, a son of Achshah, and brother of Margaret, and one of the defendants, was willing, and would assent to the proposed proceeding; and he further said that the next day, or the next day but one, he went to see Geo. R Dunning and Oren King, the husband of Margaret, also one of the defendants whom he did see, and each expressed himself willing and was desirous that matters should be mutually arranged and proceedings had as the said Achshah Dunning, Margaret King, and he, had before agreed. In pursuance of such arrangement, George R Dunning proceeded at once, with affiant to take counsel, and George did counsel with Asa B. Roff and George B. Joiner, and said he had employed Asa B. Roff to appear for himself, for Achshah Dunning and for Margaret King; and further said they would go on at the June term of court, as proposed and agreed upon; he further said that a few days after, he called on these parties, and told each of them it would be necessary for them all to go to Middleport and appear, or give their consent to the arrangement which they had made, to which Achshah and George agreed, and they both went to Middleport with him, but Margaret said she could not well go, but would agree to anything Achshah and George should do in the business; that George also, at that time, when at Middleport, informed him, that he had employed Asa B. Boff, attorney for himself and Achshah, and Margaret; he further said the suit could now be got up and the parties could go ahead with it, whereupon he called upon Boff, who also said he was employed as attorney in the cause; and he further said that Boff did appear in the cause, as also Chester Kinney on the part of the defendants with Boff, and he further said that George B. Dunning and Oren King, both appeared before the jury in the cause, of which C. F. McNeil, Master in Chancery had charge, by order of the court, when evidence was brought and witnesses sworn as to the amount of annuity which the widow should receive in lieu of her dower, at which time Boff and Kinney were present, and George, and Oren King took an active part to have the amount of the annuity settled to correspond with their wishes and feelings. He also said that George B. Dunning and Oren King, were both present in court when the decree in the case was being settled, and that George particularly interested himself in the decree, which was finally settled to suit him; and he further says that George, and Oren King were both present at the public sale of the farm which was sold under the decree of the court, that they both interested themselves at the sale to get bidders, and to have the farm sold at a good price, and that neither of them made objections to the sale; he also says further, that he had a conversation with Margaret King the day before the farm was sold by O. F. McNeil, Esq., commissioner, who made no objections tohhe sale, but she stated that she had understood Dr. Fowler and Charles Sherman had intended to bid on the farm; that they owned land on each side of it, and if they bought it they would divide it to suit their convenience; he further said he was at the house of Oren King the day after the sale of the farm and heard him remark to his wife, Margaret King, that Mr. Wright, the purchaser of the farm, wished to negotiate, and buy up the back payments at 10 per cent, discount, and Margaret said she would not negotiate, but that she preferred that the payments should be secured by a mortgage on the farm, and have her interest; and he farther said that Dr. Fowler and Charles Sherman both bid on the farm at the public sale, and also, that at least one other person, bid on the farm at the sale to his knowledge, and also that others bid as he was informed and believes.</p> <p>A. B. Hoff stated that he, together with one Kinney, acted as the attorneys for defendants at the June term, that Oren King, George R. Dunning and Achshah Dunning, spoke to, and counselled with him, and he believed Rom the conversation, that he was employed as the attorney in the cause for all of the defendants, and he, together with Kinney, entered the appearance of all the defendants; that he employed Kinney for defendants.</p> <p>Juliet Boutwell said she resides in the State of Wisconsin ; that she was acquainted with the defendants; that she came down on a visit in Kovember, 1863, to the residence of defendants ; she heard each of them say that they became willing parties to the suit, for the purpose of having the lands sold; she further said that George R. Dunning said, that he intended to bid $18 per acre at the sale.</p> <p>Robert Carr said he had been well acquainted with the farm for twenty years; that $15 per acre, with the annuity of $225, was a good price for it; that Mrs. Dunning is a healthy, active woman; he, with George Pineo, went on the premises for the purpose of setting off dower for the widow; and at that time the widow stated that she did not want her dower set off, but would rather sell the whole place, as it would injure the sale of the premises; that she would rather have a money annuity in lieu of dower.</p> <p>George Pineo said that he, with Robert Carr and Micajah Stanley, were appointed by the court to examine the farm, and set off dower to the widow; that he and Carr went on the premises during the June term of the court, 1863, and informed the widow of their purpose there, and she told them that she did not wish her dower set off hut preferred it in money, or annuity, in lieu of dower. He heard Dunning and King say after the decree, that they were well satisfied with the proceeding and with their attorneys, Hoff and Kinney ; and he was well acquainted with the lands, and that $15 per acre was a fair price, with the yearly annuity of $225 to the widow.</p> <p>C. F. MeNeal stated that he was present at the trial of the cause, and had charge of the jury that found the yearly annuity for the widow in lieu of dower; that Geo. R. Dunning and Oren King, two of the defendants, were present and consulted with attorneys; that he was appointed by the court, commissioner to sell the lands; that he gave notice of sale four weeks in a newspaper of the county; that he sold. the lands on the 10th of November, 1863, at 2 o’clock P. M.; all of the lands were bid off by George S. Wright—subject to widow’s annuity of $225—at $15 per acre; that Geo. R. Dunning and King, had personal notice from him of the time of sale, and were both present at the sale; that, under all circumstances, the lands sold for all they were worth; he said he wrote a letter to King and Geo. R Dunning, informing them as to the time of sale, and also consulting them as to the sale.</p> <p>George S. Wright says that he purchased the lands described, on or about the 11th day of November, 1863, for $15 per acre, of said C. F. McNeill, commissioner, subject to life annuity of widow, of $225; that Geo. R. Dunning and King were present at sale; he also called upon them to pay them the deferred payments, but they preferrred to let them staid according to conditions of sale; this was the next day after the sale; he also had a conversation with widow; she expressed herself well satisfied with sale, and the amount of annuity.</p> <p>George B. Joiners says that he was at the residence of widow between the June term of said court, 1863, and the sale; and, in a conversation with widow, she stated that she had beat him in the trial; that shé had hired a lawyer, and she appeared to be satisfied; that she did not want the farm divided; that said lands are not worth more than $15 per acre.</p> <p>Chester Kinney says that he was employed by A. B. Roff, Esq.; that by direction of Roff he drew up said answer on or about the 16th day of June, 1863; that he was informed by Roff, that he (Roff,) was employed in said cause; that Roff desired him to assist, and thereupon he filed said answer and waived service of process; that before filing said answer, he submitted it to Fletcher, attorney for petitioners, and Roff', attorney for defendants. They stated that it was correct; and he met King and Geo. R. Dunning in court-room, and informed them as to the nature of said answer, and they, as attorneys, followed the instructions of said King and Dunning.</p> <p>Charles Sherman says that he is acquainted with said farm, and it is not worth over $15 per acre with annuity of $225 per year for widow.</p> <p>Isabella Crosier says that she resided in family of Oren King on last of August, 1863, and resided with him, about nine weeks, and she is well acquainted with widow and Geo. R. Dunning; that widow called frequently at said King’s; and that she heard, in conversation between widow and Mrs. King, that she (widow) was desirous of having farm sold without any division; that W. H. Dunning wanted to divide the lands, but they had beat him, and that it was to be sold all together; that she wanted money for her share.</p> <p>Philander Morgan says that he is well acquainted with said farm, and has been since 1859 or 60; that $15 per acre is all that the farm is worth, subject to said annuity; that Geo. R. Dunning admitted to him that Kinney and Roff* appeared for them (defendants,) and that the suit was then disposed of, and were all satisfied with what they done; that the said Kinney was a good lawyer.</p> <p>Michael Hoyle says he is acquainted with said farm; that it is not worth over $15 per acre, with annuity.</p> <p>W. Patterson says that" he" is acquainted with said farm, and that it sold for all that it was worth.</p> <p>Abram Gongenough says that he is acquainted with said farm, and that it is not worth over $15 per acre.</p> <p>It was admitted by the judge that he did not sign the record of the June term of said court, 1863, until after defendants filed their motipn to set sale aside.</p> <p>The case is brought, here by writ of error, and the same reasons urged for a reversal of judgment as were assigned in support of the motion.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. B. B». Sheldon, Judge, presiding.</p> <p>This was a bill in chancery to foreclose a mortgage, filed December 5, 1860. The facts fully appear in the opinion.</p>

This was an action of assumpsit brought at the January term, 1864, upon a promissory note to which was set up the defence of usury. The material facts appear in the opinion of the court.

Writ of Error to the Circuit Court of Peoria county; the Hon. M. Williamson, Judge, presiding. This was an action on the ease brought at the January term, 1864, by the appellants against the appellees. The material facts are stated in the opinion of the court.

<p>Appeal from the Superior Court of Chicago:</p> <p>This was an action on the ease brought by the appellee against the appellant and tried at the September term, 1864. The plaintiff recovered a verdict and had judgment for $250. The material facts are stated in the opinion of the court.</p>

This was an action of trespass de bonis asportatis, brought in the Superior Court of Chicago by Mary 0. McCloskey, against Anthony 0. Messing. To the declaration, the defendant pleaded a seizure of the goods, as sheriff, on process in his hands to be executed, against Cyrus M. Bellamy. The plaintiff claimed the goods by purchase from C. M. Bellamy before the writs of attachment were issued.

Scott, Judge, presiding. This was an action of covenant brought upon a policy of insurance at the September term, 1864, in which the plaintiff recovered a judgment for $600. All the material facts are given in the opinion of the court.

Writ oe Error to the Circuit Court of Lee county; the Hon. W. W. Heaton, Judge, presiding. This was an action of assumpsit brought by Luke Hemenway against John H. Gropsey, at the June term, 1863, upon a promissory note which had been assigned to the plaintiff, and which was as follows : 1400.00. Dixon, Ill., October 17,1855.

Writ oe Error to the Circuit Court of Marshall county; the Hon. S. L. Richmond, Judge, presiding. This was an action of replevin brought in the Circuit Court of Marshall county, by Theodore Collier and Elijah M. Holloway, against Henry C. Walker and William Walker, for a quantity of cord-wood. The principal witness in the cause was one Sloover, who had cut and corded the wood, who testified he had never sold and delivered it to any one else but the plaintiffs.

Writ of Error to the Circuit Court of DeKalb county; the Hon. Theodore D. Murphy, Judge, presiding. This was an action of replevin, brought at the September term, 1863, by Cyrus H. McCormick & Co., against George M. Hadden, to recover possession of two horses. The defendant below had a verdict and judgment. The facts appear in the opinion of the court.

John S. Thompson, Judge, presiding. Catharine M. Allen was sued before a police magistrate, for a violation of the ordinances of the city of Monmouth, when a judgment was rendered against her on the 28th of May, 1863, from which judgment she appealed to the Circuit Court of Warren county, on the same day, and the transcript and papers were left with the clerk of the Circuit Court, on the 2d day of June thereafter. She perfected the appeal before the magistrate.

E. 8. Williams, Judge, presiding. This was a bill in chancery filed by Robert B. Dennis against the Hiantic Bank et al. to redeem certain real estate. The facts are fully set forth in the opinion of the court.

Erastus S. Williams, Judge, presiding. This suit is founded upon the same transactions and written instruments as that of Nicoll v. Ogden et al., 29 Ill., 323, and was brought by the appellant to recover dower in a lot which is a part of the property called in the former suit, “ the trust half of the Hunter property,” in which the appellant claims her husband, Edward A. Eicoll, had an equitable estate of inheritance.

Writ oe Error to the County Court of De Kalb county; the Hon. Edward L. Mato, Judge, presiding. The facts of this case are fully presented in the opinion of the court.

Writ of Error to the Circuit Court of Cook county; tne Hon. Erastus S. Williams, Judge, presiding. ■ The facts of this ease appear in the opinion of the court.

<p>Writ of Error to the County Court of Livingston county; the Hon. Jonathan Duff, Judge, presiding.</p> <p>This suit was originally instituted before a justice of the peace in Livingston county, by Robert Miller, administrator of the estate of William S. Malone, deceased, against Benjamin F. McCray, to recover a sum “not exceeding one hundred dollars.”</p> <p>The cause, was removed into the County Court by appeal, where the defendant appeared and entered his motion to dismiss the suit upon the ground that the justice of the peace who rendered the judgment from which the appeal was taken, had no jurisdiction in the case, because the plaintiff sued as an administrator, and the amount claimed exceeded twenty dollars. The court sustained the motion and dismissed the suit. The plaintiff thereupon sued out this writ of error, and now insists that the ruling of the County Court in sustaining the motion was erroneous. ■</p>

<p>"Writ oe Error to the Becorder’s Court of the city of Chicago; the Hon. Evert Van Burén, Becorder, presiding.</p> <p>On the 13th day of October, 1862, David Siegwald died seized in fee simple of certain real estate, of the alleged value of about thirteen thousand dollars. Prior to his death, the said David had made and published his last will and testament, as follows:</p> <p>Know all men by these presents, that I, David Siegwald, of the city of Chicago, county of Cook, and State, of Illinois, being of sound mind and memory, do hereby make, publish and declare this my last will and testament, in manner following:</p> <p>1st, I give and bequeath unto my beloved wife, Antonia, all my real and personal estate wheresoever situated in fee simple and absolute forever, that is to say, that my said wife shall have all the benefits thereof, until the expiration of her life, at which time my son, Anton, shall be the only heir of real and personal estate, what may be left.</p> <p>2d, I do hereby appoint my said wife executrix of this my last will and testament, and also guardian of my child, Anton, until he becomes of age.</p> <p>In witness whereof, I have hereunto set my hand and seal, this 30th day of September, in the year of our Lord one thousand eight hundred and sixty-two.</p> <p>The will was duly proven and admitted to record, and on the 15th of November, 1862, letters testamentary were issued to the executrix named therein.</p> <p>The devisee, Antonia Siegwald, widow of the testator, being about to sell and convey the real estate for the purpose of paying off an incumbrance upon the same, which was created in the life time of the testator, and claiming to own such real estate in fee simple absolute by virtue of the terms of the will, Anton Siegwald, son of the testator, who was still a minor, exhibited his bill in chancery in the court below, by his next friend, setting forth the foregoing state of things, and insisting that the said Antonia, by the terms of the will, acquired only a usufructuary interest in the said real estate, during the term ‘of her natural life, and that the fee simple title thereto was, by the terms of the will, vested in him, the complainant, subject only to the life estate of said Antonia.</p> <p>He prayed that the will might be so construed, and the said Antonia enjoined and restrained from selling or disposing of the said real estate.</p> <p>The defendant demurred to the bill, and in showing cause of demurrer, contended for a different construction of the will,—that by its terms the fee simple title to the real estate became vested in her.</p> <p>The court overruled the demurrer, and the defendant electing to abide by the same, an injunction was ordered in accordance with the prayer of the bill, and the defendant-was decreed to pay the costs. She thereupon sued out this writ of error, and now questions that ruling of the court.</p>

<p>Appeal from the Court- of Common Pleas of the city of Elgin; the Hon. Bichard G-. Montony, Judge, presiding.</p> <p>This was an action of ejectment instituted in the court below by Edward W. Austin against Alexander H. Underwood. The trial resulted in a verdict and judgment in favor of Underwood, the defendant. The plaintiff, Austin, brings the case to this court by appeal. The principal facts appear in the opinion.</p>

<p>Appeal from the Superior Court of Chicago.</p> <p>This suit was originally brought by Joseph Evans against Henry L. Swartwout, before a justice of the peace in Cook county, and was removed into the Superior Court of Chicago by appeal.</p> <p>The action was trover, and was instituted for the recovery of damages for the alleged conversion by the defendant of a mowing and reaping machine, claimed to belong to the plaintiff.</p> <p>It appears from the testimony as developed on the trial in the Superior Court, that in the year 1839, the plaintiff purchased the machine from one Jones, for $75. About the 1st of July, 1850, Richard Evans, a son of the plaintiff, sold one-half of the machine to Swartwout, the defendant, for twenty-five dollars.</p> <p>Richard, at the time, in conjunction with his brother Joseph, was managing the farm of his father, and attending to his business affairs generally, but states himself, that he was not an agent of his father, but only acted in any particular matter by his consent or under his direction. He states that when he informed his father of the sale, he expressed dissatisfaction, and said Swartwout should not have the machine. But it is shown by the testimony that for two years thereafter the plaintiff and defendant continued to use the machine as joint owners, Swartwout paying one-half of the repairs, and his rights as the owner of one-half being constantly, asserted, and, as far as appears, never denied until about the time of the commencement of this suit.</p> <p>The plaintiff demanded the machine from the defendant about the 1st of June, 1861, but whether that was before the commencement of the suit, or after, does not appear from the record. The character of the demand is shown by the testimony of Joseph Evans, Jr., who stated; I went with my father, the plaintiff, to the defendant to get the machine home. We met Mr. Swartwout and my father demanded of him the machine. My father said he wanfed the machine; we did not get it, he would not give it to us. On his cross-examination, he said: The machine was my father’s. I do not know .whether defendant had bought one-half of the machine or not. He would not give it up, he claimed to have bought it.</p> <p>A verdict was returned for the plaintiff for thirty dollars.' Amotion for a new trial was overruled, and judgment entered upon the verdict, from which the defendant took this appeal.</p> <p>The appellant insists, as a ground for reversal, that the verdict was contrary to the evidende; that he was the owner of one-half of the machine, when the verdict was for its entire value; and furthermore, that no sufficient demand was made for the plaintiff’s rights in the property, before the institution of the- suit.</p>

Writ of Error to the Circuit Court of Kane county; the Hon I. G. Wilson, Judge, presiding. James Murphy was indicted in the court below, at the October term, 1863, for the alleged murder of William Shies. The cause was tried at the February term, 1865. The court convened for that term on the 6th day of February, and on the 21st of the same month, the case was called for trial.

Writ oe Error to the Circuit Court of Rock Island county; the Hon. Ira 0. Wilkinson, Judge, presiding. This was an indictment in the court below against William W. Armstrong for feloniously administering, to a woman then pregnant with child, certain drugs and liquids with intent to procure a miscarriage.

John M. Soott, Judge, presiding. David D. Haggard brought this action on the case in the court below, against the American Express Company., to recover for a package of money sent to the plaintiff at Bloomington, HI., by his agent, from Clinton, in DeWitt county. The company was sued as a corporation, and there was service upon their agent at Bloomington, in the manner-prescribed by the statute for service upon corporations.

Writ op Error to the Circuit Court of Tazewell county; the Hon. James Harriott, Judge, presiding. This was an action of ejectment brought in the court below, by Mary M. Doolittle and Irwin B. Doolittle, minors, who sue by their next friend, Jesse A. Uason, against John J. Hamilton, for the recovery of lots eleven and twelve, in block seventy-six, in the city of Pekin.

Erastus S. Williams, Judge, presiding. This was an action on the case brought in the court below against the appellant to recover damages for an injury to the person of the appellee, alleged to have been received by him whilst riding on the cars and over the road of the appellant.

Bichard G-. Montony, Judge, presiding. This was an action of assumpsit instituted in the court below, by Samuel Wood against Denison K. Town. A trial of the cause resulted in a verdict and judgment in favor of the plaintiff for the sum of $1,183. The defendant thereupon took this appeal. A sufficient statement of the case will be found in the opinion of the court.

Writ of Error to the Circuit Court of Woodford county; the Hon. Samuel L. Bichmohd, Judge, presiding. It was provided in the last will and testament of Henry Sowards, that as soon as convenient after his youngest son, Edward E. Sowards, should arrive at his majority, the lands ■ belonging to the estate should be sold, and the proceeds divided among the then surviving children of the. testator.

Erastus S. Williams, Judge, presiding. This was an action of forcible detainer commenced before a justice of the peace in Cook county, by Sarah M. Pestaña against Oliver P. Secor. The case was removed into the Circuit Court by appeal, where a trial resulted in a verdict and judgment for. the plaintiff. The defendant thereupon took this appeal. The facts are sufficiently presented in the opinion of the court.

This was an action of assumpsit brought in the court below by Samuel H. Kerfoot, against John McEwen, to recover “for commissions on sale of land made by the said plaintiff for the said defendant, at the said defendant’s request.” A question is made whether a special plea, filed by the defendant, amounts only to the general issue, and the pleadings, in view of that question, are sufficiently set forth in the opinion of the court.

Writ oe Error to the Circuit Court of McLean county; the Hon. Charles Emerson, Judge, presiding. This was an action of assumpsit instituted in the court below by Robert Thompson & Co., against Charles E. Hovey, to recover for goods, wares and merchandise sold and delivered. It appears the plaintiffs, Thompson & Company, were merchants, doing business at Bloomington, in this State.

Writ op Error to the Circuit Court of La Salle county; the Hon. Madison E. Hollister, Judge, presiding. This was a suit in chancery institutéd in the Circuit Court by Willis M. Hitt, against John Comstock.. The facts are set forth in the opinion of the court.