Volume 38 — Illinois Reports

Samuel L. Richmond, Judge, presiding. This was a suit in chancery instituted in the Circuit Court of Peoria County, by Liney Blue against Cyrus H. Blue, Washington Wakefield and William R. Phelps, and after-wards, the cause was removed into the Circuit Court of Wood-ford County, on change of venue.

Benjamin E. Sheldon, Judge, presiding. This was an application to the court below for a writ of mandamus, in the name of the People of the State of Illinois, on the relation of George W. Byrns, Michael J. Hawkins, Robert B. Hawkins, Alanson Hawkins, Albert Hawkins, John Gilks, John Ingraham, Aaron Shrefler, Alpha B. Blair, John Michael, Joseph Jeffcoat and Andrew Tates, against John B. Welch, the clerk of the Circuit Court of Kankakee County, to compel him to issue a writ of…

Erastus S. Williams, Judge, presiding. This was a suit in chancery, instituted in the court below by George W. Gage and. William T. Tucker against William M. Derby, Henry S. Monroe, Henry T. Porter, Henry Peake and Artemus W. Delong, for the settlement of a partnership account.

Charles H. Ray instituted an action of forcible detainer against John D. Walsh, before a justice of the peace in Cook County, and the cause was subsequently removed into the Superior Court of Chicago by appeal.

Writ of Error to the Superior Court of Chicago. This was a petition filed in the Court below by Emeline Owen against Joseph Peacock, for her dower in certain premises described as the undivided half of the west forty feet' and north fifty feet of the east forty feet of lot five, block twenty, in the old town of Chicago. A decree was entered pro forma for the defendant, and the petitioner thereupon sued out this writ of error.

<p>1. Depositions—in suits at law. The deposition of a resident witness may be taken and read in a suit at law, even when there has been no affidavit filed as required by the statute, when it is taken by the consent of the party against whom the deposition is sought to be read.</p> <p>2. Pleading—when one must declare specially—recovery under the common counts. In an action to recover for services rendered under a special contract, which has been substantially performed by the plaintiff, and nothing remains but the payment of money, recovery may be had under the common counts, and the plaintiff need not declare specially upon the contract.</p> <p>3. And it is not essential to such recovery that the contract should have been waived by the defendant; and especially, it would not be necessary to prove both performance by the plaintiff, and waiver of performance by the defendant.</p> <p>4. Measure of Damages—in such case. Of course the recovery in such cases must be limited to the amount due under the special contract.</p>

Samuel L. Richmond, Judge, presiding. This was an action of assumpsit, brought to the January term, 1864, of the court below, by Washington E. Cook, against the Board of Supervisors of Marshall county, for the recovery of the interest due by a coupon attached to a bond issued by the defendants upon their subscription to the capital stock of a railroad company.

T. D. Murphy, Judge, presiding. This was an action of assumpsit, commenced in the Circuit Court of DeKalb County, on the 4th day of February, 1863, by the appellee against the appellant. The declaration contained the common counts for goods, wares, and merchandize sold and delivered; for money lent and advanced; for money laid out and expended; for money had and received; and on account stated. The plea was the general issue. The cause was tried at the September term, 1864.

Writ of Error to the Circuit Court of Woodford County; the Hon. S. L. Richmond, Judge, presiding. This was a prosecution against Nelson Maloney for bastardy, to compel him to support an illegitimate child of Maria Owen, of which he was alleged to be the father.

Writ of Error to the Superior Court of Chicago. This was an action of debt brought in the court below by Peter P. Keller against Helen S. Brown. The declaration contained two counts for rent, and a third for use and occupation.

<p>Writ of Error to the Superior Court of Chicago.</p>

<p>1. Instructions—should not he misleading. An instruction may be abstractly correct in view of the rights of certain persons, yet if it have a tendency to mislead the jury in reference to the rights of the immediate parties to the suit, it will be erroneous.</p> <p>2. So, upon the trial of the right of property in a lot of wheat, between a creditor of A, and one B, who claimed the property as having been raised on his own land by his tenant, to whom the land had been rented by A, as agent of B, the court instructed the jury, for the claimant, that if A rented the land in question to third parties, and as agent of B, and the wheat in question was raised by virtue of said renting, and belonged'to B, then they must find for the claimant. It was held, that although the instruction would have been unobjectionable as between the parties to the lease, yet it was erroneous as between the parties to this proceeding, because of its tendency to mislead the jury by giving them the impression that the renting of the land by A, in the name of B, settled the question of the title to the rent wheat, when the creditor claimed the land was A’s.</p> <p>3. Right of property—the claim may be made by an agent. Making the claim to property which has been levied upon, is merely an act in pais, and may be performed by an ordinary agent. Such an act is not embraced in the rule laid down in Robb v. Smith, 3 Scam. 47, that a person can not commence or prosecute a suit as “agent” for another, but only as an attorney at law.</p>

<p>Appeal from the Circuit Court of Stephenson County; the Hon. Benjamin R. Sheldon, Judges presiding.</p>

Writ op Error to the Circuit Court of Peoria County; the Hon. Marion Williamson, Judge, presiding. This was an action of trover commenced in the Circuit Court of Woodford County, by Fisher and Haines against Ebel B. Meek, to recover the value of a certain promissory note.

This was an action of assumpsit, instituted by George W. Bassett against Lewis Umlauf, in the court below, to recover commissions for selling certain land, and compensation .for pasturing a mare and colt belonging to Umlauf.

Writ of Error to the Circuit Court of Henry County; the Hon. Ira O. Wilkinson, Judge, presiding. This was an action of forcible detainer, commenced before a justice of the peace in Henry County, by Olof Johnson and Samuel Remington, against Jonathan H. Baker. The cause was removed, by-appeal, into the Circuit Court, where a trial resulted in a verdict and judgment for the defendant. The plaintiffs thereupon sued out this writ of error.

<p>1. Certiorari—the common law writ—its general purpose, and the questions arising under it. The common. law writ of certiorari, is the only mode by which the entire record of the proceedings of an inferior tribunal can be brought into the Circuit Court.</p> <p>2. That writ brings up a full and complete transcript of the record of the proceedings of which complaint is made, and when brought up, the superior court tries the case on the record alone. The trial is had by an inspection of the record, and not on any issue of fact, but of law rather, as on a writ of error. The question for the superior tribunal is, had the inferior tribunal jurisdiction of the parties and of the subject matter, or has it exceeded its jurisdiction, or otherwise proceeded contrary to law ?</p> <p>3. Same—when it will lie. So when it is sought to question the jurisdiction of Commissioners of Highways in regard to the subject matter of laying out and establishing a highway, the only mode of doing so is by the common law writ of certiorari.</p> <p>4. Appeal—from Commissioners of-Highways to the Supervisors—what questions may arise thereunder. An appeal is allowed from an order of Commissioners of Highways to three Supervisors, but the only questions for the Supervisors to decide on such an appeal, are, as to the expediency or inexpediency of the road, and the amount of damages which the appellant will sustain by its location over his land. The question of the jurisdiction of the Commissioners could not arise on such a proceeding.</p> <p>5. Highways—within what time Commissioners must meet to hear reasons for or against a road. A petition to Commissioners of Highways for the alteration or discontinuance of any road, or laying out any new road, must be posted up twenty days before any action can be had in reference to it; and the Commissioners are required to meet within ten days after the expiration of the twenty days provided, to hear reasons for and against the object sought by the petition. This requirement is not merely directory, but is peremptory; such a meeting of the Commissioners within that time, is essential to the validity of their action. A meeting twenty-three days after the expiration of the twenty days will not satisfy the require mentof the statute.</p> <p>6. Same—notice must he given of the meeting of the Commissioners. And notice must be given, as required by the statute, of such meeting of the Commissioners. That is essential to their jurisdiction, and the want of it will vitiate their proceedings. What is said to the contrary in Wells et al. v. Hicks, 27 Ill. 345, is to be regarded as obiter dictum merely.</p>

<p>Writ of Error to the Circuit Court of DeKalb County; the Hon. T. D. Murphy, Judge, presiding</p>

Writ of Error to the Circuit Court of Henry County; the Hon. Charles B. Lawrence, Judge, presiding. This was an action of forcible detainer instituted by Olof Johnson against Thomas H. Bantock, to recover the possession of certain premises which the plaintiff claimed as purchaser under an execution sale thereof. The only question presented is, whether the instrument executed by the sheriff to the plaintiff was sufficient, as a deed, to pass the title.

<p>1. Trustees—presumption that they act honestly and do their duty. It is a presumption of law, that officers and trustees act honestly and do their duty, and the burthen of proof is upon those who seek to impeach their conduct in those respects.</p> <p>2. So where a creditor for whose benefit his debtor has made an assignment, seeks to impeach a sale of the property by the assignees, either upon the ground of their neglect of duty, or that they have acted fraudulently, he is bound to show, such misconduct by affirmative evidence, or by strong circumstances.</p> <p>3. Same—inadequacy of price, as evidence of fraud. It does not follow, because the assignees may have sold the property at prices far below its estimated value, that the sale was not fair, or that it was in fraud of the rights of creditors.</p> <p>4. Assignment—-for the benefit of creditors—duty of the assignees. Where a debtor makes an assignment of his property for the benefit of his creditors, the assignees succeed to all the rights of the debtor in the property, and receive it with all its burdens. It is their duty to take charge of it, to preserve and protect it until it can be sold, and to sell it to the best advantage for the beneficiaries, and within such reasonable time and manner as that the highest price shall be obtained for it.</p> <p>5. It is the duty of the assignees to manage the trust confided to them with all the care, caution and diligence a prudent owner of like property would under the circumstances, and to observe good faith in all their transactions in relation to it, and must be held to a strict accountability.</p> <p>6. Same—sale must be fair. And if such persons, acting in a fiduciary character, make declarations or do acts which prevent competition at a sale of trust property, or which causes a sacrifice of the property, the sale should be set aside at the instance of any beneficiary injured thereby.</p> <p>7. Same—of grounds for the removal of the assignees. If the creditors interested in an assignment apply to the assignees to see an inventory of the property with appraisements of value and the assignees exhibit an inventory without such appraisement, denying that they have any other, when in fact they have such an appraisement as was called for, and intended to deceive, and did deceive, the creditors to their injury, by the statement made, no court would hesitate to remove them.</p> <p>8. Judgments—by confession—if irregular, how to be questioned. If irregularities intervene in the confession of a judgment, they can not be taken advantage of in a collateral proceeding. Until reversed for irregularity, they can be enforced.</p> <p>9 ' Purchaser—under a judgment, protected against its reversal. And if such a judgment should be reversed, a bona fide purchaser under it would be protected.</p>

<p>Wbit oe Eebob to the Superior Court of Chicago.</p>

Writ of Error to the Circuit Court of McLean County. This was an action of ejectment instituted in the court below by Charles Mason against Solomon Ely, to recover lot number one and the east half of lot number two, in block number fifteen, in the southern addition of Miller and others to the city of Bloomington, in McLean County.

Writ of Error to the Circuit Court of Iroquois County; the Hon. Charles R. Starr, Judge, presiding. This was an action of replevin brought in the court below by Thomas E. Thompson against Thomas Vennum. A trial resulted in a verdict and judgment for the plaintiff. The defendant thereupon sued out this writ of error.

<p>1. Infants.—their liability for torts and fraud. An infant is liable in damages for bis torts and frauds. If he were to falsely allege himself to be of age, for the purpose of inducing another person to purchase and take a deed of his lands, he would be liable to respond in damages for any injury which might result to the purchaser in consequence of the deceit.</p> <p>2. Infants—estoppel by reason of fraud. Whether he would be estopped, in a Court of Chancery, from disaffirming such a conveyance on his arriving at majority, is by no means clear. There seems, however, to be only a technical reason why the doctrine of equitable estoppel should not, in such cases be applied, and in a case of that character, this court would be strongly inclined to hold the infant bound.</p> <p>3. Same—of estoppel by consent of the minor. But an equitable estoppel can not arise out of the mere consent of an infant, unaccompanied by false representations, for the sale and conveyance of his lands by an administrator, who otherwise would have no authority so to do. Such consent could not conclude the infant any more than a sale and conveyance by himself, which he would be at liberty to disaffirm.</p> <p>4. Same—of estoppel by silence of infant while improvements are being made on his land by purchaser. Nor would the owner of the land be estopped merely because of his standing by in silence while improvements were being made thereon by such purchaser, during his minority.</p> <p>5. Same—estoppel by asserting ownership of proceeds of such sale. A portion of the purchase money received by the administrator was invested in other lands which he conveyed to the infant without his then knowledge, but which he afterwards, both before and after he attained his majority, spoke of as belonging to him; but no estoppel could arise therefrom, as only what was said by him in that regard, after his majority, would be important, and that could not have influenced the conduct of the purchaser, even if known to him, because he had already bought and paid for the land and made his improvements.</p> <p>6. Estoppels in pais—when they arise. “The*doctrine of estoppels in pais, or equitable estoppels, is based upon a fraudulent purpose and a fraudulent result. If, therefore, the element of fraud is wanting, there is no estoppel; as, if poth parties were equally cognizant of the facts, and the declaration or silence of the one party produced no change in the conduct of the other, he acting solely on his own judgment. There must be deception and change of conduct in consequence, in order to estop a party from showing the truth.”</p> <p>7. Same—application of the rule where one who is of age, is silent upon the consummation of a contract made when he was a minor. So where a party had purchased lands belonging to an infant, from an administrator who had no authority to sell, and every thing in relation to the transaction was consummated except the making of the deed, the fact that the owner of the land, lie having attained his majority, was present on the occasion of the execution of the deed by the administrator to the purchaser, and was silent, though having knowledge of what was transpiring, would not operate to estop the owner from asserting his title as agains^t such purchaser. In such case there would be wanting thef element of deception on the part of the owner and consequent change of-conduct on the part of the purchaser, because all the material parts of the transaction had been consummated before, the deed being merely the evidence of what had already occurred.</p> <p>8. Infant—ratification—what constitutes. If an infant, after attaining his majority, re-delivers his deed made in infancy, it would be a ratification.</p> <p>9. In order to constitute a ratification, however, of acts done in infancy, the act relied upon as a ratification, must be performed with a full knowledge of its consequences, and with an express intent to ratify what is known to be voidable.</p> <p>10. Where a party who had attained his majority, was present and knew that a deed was being acknowledged by another, for the conveyance of his land, which had been sold by the grantor, without authority, during the infancy of the owner, and remained silent, his attention to the transaction not being challenged so as to call upon him for reply, and the circumstances being such as to show he did not participate therein, nothing is to be inferred against him, in the way of intended ratification, from his silence. Ratification must be deliberate, intentional, and unequivocal, and will not be inferred from mere silence under such circumstances.</p> <p>11. In this case, the administrator who had sold the infant’s land without authority, invested a part of the purchase money in another tract of land, which he conveyed to the infant, who, on arriving at age, having repudiated the sale of his land by the administrator, conveyed the land purchased with the proceeds of that sale, as he was directed by the administrator, without in any way profiting thereby. This did not operate as a ratification of the sale of his land by the administrator.</p> <p>12. But if the infant, on attaining his majority, had conveyed the land to which he had thus acquired title from the administrator, for his own benefit, or in his own right, claiming title thereto; or, if he had in any mode, after he became of age, knowingly appropriated to his own use any of the proceeds of the sale of his own land, that circumstance would give the case a different complexion.</p>

Isaac Gr. Wilson, Judge, presiding. Harvey White instituted his action of replevin in the court below against John Jones, Justus D. Andrus and Ethan J. Allen, to recover the possession of a stock of goods. A trial resulted in a verdict for the defendants, and a writ of retorno habendo was awarded.

<p>Writ of Error to the Circuit Court of Cook County; the Hon. E. S. Williams, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Stephenson County; the Hon. Benjamin R. Sheldon. Judge, presiding.</p>

Writs of Error to the Superior Court of Chicago, and to the Recorder’s Court of Chicago.

<p>Writ of Error to the Circuit Court of McLean County; the Hon. Charles Emerson, Judge, presiding.</p>

Pleas of the City of Elgin; the Hon. Richard G. Montony, Judge, presiding. This was an action of ejectment commenced in 1852, in the Circuit Court of Kane County, by Anson Root against George Curtis, to recover certain premises situate in that county.

Jesse O. Nobton, Judge, presiding. This was an action of ejectment instituted in the court below by John II. Daniels against Michael Shields, to recover certain real estate situate in the City of Joliet, described as block three and block four, in the Canal Trustee’s Sub-Division of the west half of section nine, township thirty-five, range ten east. A trial before the court, without a jury, resulted in a finding and judgment for the defendant.

<p>Writ or Error to the Circuit Court of La Salle County; the Hon. Madison E. Hollister, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Tazewell County; the Hon. David Davis, Judge, presiding.</p>

Writ of Error to the Circuit Court of the County of La Salle; the Hon. Madison E. Hollister, Judge, presiding. Greorge P. Hossack, being a warehouseman in Morris, Illinois, on the 17th day of October, 1862, issued to Lester Underwood, the following receipt: “ Eeceived in store, of Lester Underwood, forty-six hundred and seventy 27-56 bushels of corn, for account of himself, at owners risk of fire and heating; storage four cents, to one year from date, delivered shelled.

<p>Writ of Error to the Circuit Court of DeKalb County</p>

This was an action brought to recover the value of a trunk and contents, consisting of gold and silver watches, chains and other jewelry, alleged to be of the value of one thousand dollars.

<p>1. Pleading—declaration in ejectment. A declaration in ejectment which alleges that the plaintiff was in possession, and was dispossessed, on the -day of September, 1862, without specifying the day of the month, is sufficient after judgment, although the omission of the averment that plaintiff was in possession on a specified day would, undoubtedly, be ground of special demurrer.</p> <p>2. An allegation that the plaintiff was seized in fee simple, is a sufficient _ allegation of his right of possession.</p> <p>3. Same—description of premises. When the premises can be found and located by the description given in the declaration, that is sufficient.</p> <p>4. So, it is enough to describe the land by the part of the quarter section, the section, township, range and meridian.</p> <p>5. Arrest of judgment. If no motion in arrest of judgment is made in the court below, reasons for the arrest can not be urged on error.</p> <p>6. Upon motion in arrest of judgment upon a declaration alleging that the plaintiff was seized on the-day of September, 1862; and was ousted in the same month, the court will presume that the proof established a seizin prior to the ouster. ,e</p> <p>7. Writ of possession—motion to quash. If a writ of possession is defective, a motion to quash it must be made in the court below before its insufficiency can be assigned as error.</p>

<p>Writ of Error to the Circuit Court of Stephenson County; Hon. B. R. Sheldon, Judge, presiding.</p>

<p>1. Witness—parties in equity. In equity, a person who is a party to the record, is not thereby necessarily disqualified as a witness; the inquiry being, not so much whether the witness’ name appears of record, as whether he is in fact, swearing to promote his own interest.</p> <p>2. Same—competency—interest. The general rule is, as to the disqualification of a witness on the ground of interest, that he must have some certain, legal and immediate interest in the result of the cause, or in the record ; and such interest must exist at the time of his examination.</p> <p>3. Foreclosure of mortgage—defence thereto. Where a mortgage is given upon one tract of land to secure the purchase money of another tract, which the mortgagee covenants to convey, with warranty, but to which he has no title, such failure of title in the vendor is a good defence in equity in a proceeding to foreclose the mortgage.</p> <p>4. Estoppel—in pais—when it arises. If the owner of a tract of land upon which a mortgage existed prior to his purchase, induces a third person to purchase the mortgage by admitting to him that it was all right and valid, and a lien on the premises, and stating that he would pay off the same, such owner will be estopped from afterwards urging any failure of the consideration of the mortgage, to the injury of that purchaser.</p> <p>5. And in such case, it is immaterial whether the owner of the land knew there was no consideration for the mortgage. He ought to have known there was a consideration to have justified him in giving the purchaser the assurances he did in respect to its validity.</p> <p>6. Whenever an act is done, on a statement made by a party, which can not be contradicted without fraud on his part and injury to those whose conduct has been thereby influenced, the character of an estoppel attaches to that which otherwise would be mere matter of evidence; and it is binding upon a jury even in opposition to proof of a contrary nature. .</p> <p>1. In order to create an estoppel in pais, or equitable estoppel, as now understood, there must be an admission intended to influence the conduct of the man with whom the party is dealing, and actually leading him into a line of conduct which must be prejudicial to his interests, unless the party estopped bo cut off from the power of retraction.</p> <p>8. To constitute an equitable estoppel there must be an admission by the party estopped, inconsistent with the evidence he proposes to give, or the title or claim he proposes to set up; there must be action by the other party upon such admission, and an injury to him by allowing the admission to bo disproved.</p>

<p>1. Forcible entry and detainer—possession required. In an action of forcible entry and detainer the plaintiff, to recover, must show that he had the actual possession of the premises ; a mere construction entry such as the fee simple title draws to it, is not sufficient.</p> <p>2. Acts which indicate an assertion of ownership, do not constitute a possession that will support an action of forcible entry and detainer.</p> <p>3. Same—title not involved. The action of forcible entry and detainer docs not involve the trial of title.</p> <p>' 4. Same —possession and entry, only, involved,. Payment of taxes, nor ownership of the premises, tend to prove any issue in this action ; the whole question being one of actual possession and a forcible entry.</p> <p>5. Instructions. An instruction which selects one or two of the facts in a case, insufficient to sustain a verdict, is objectionable. The jury should consider all the evidence, without having their attention specially called to portions of it.</p> <p>6. It is not error for a court to refuse an instruction which repeats legal principles before announced.</p>

<p>1. Pleading—allegations in declaration. In the case of the Chicago B. & Q. R. R. Co. v. Hazzard, 26 Ill. 273, so far as the principle is declared that in cases where it is necessary that the plaintiff should show that he exercised proper care, it is necessary it should be so alleged in the declaration, is dictum merely.</p> <p>2. Same—what defects are cured after verdict. An omission or defect in pleading, in substance or in form, if from the issue joined, the facts omitted, or defectively stated, may fairly be presumed to have been proved, is cured by verdict.</p> <p>3. New trial—excessive damages. In an action on the case for negligence the jury are the sole judges of what the damages shall be, under the facts presented, and where no evidence of passion, or prejudice appears in the finding, courts seldom set aside the verdict.</p>

<p>Appeal from the Circuit Court of Iroquois County.</p> <p>This was a bill in chancery to set aside a levy under an attachment and execution levied upon the life estate of the appellant, Julius II. Rose, in certain lands, the fee whereof belonged to his wife, Ellen A. Rose. The bill set up, that the complainant had no leviable interest in the lands at the time of suing out the attachment, or at any time afterwards; and that under the law of this State the lands were the sole and separate property of Ellen A. Rose, and exempt from levy- and sale, under any execution or attachment for the debts of Rose, her husband.</p> <p>The defendant demurred to this bill, the demurrer was sustained by the court below, and the bill dismissed for want of equity, from which decree of dismissal, the complainants appealed to this court.</p>

<p>Writ of Error to the Circuit Court of the County of Iroquois; the Hon. Charles R. Starr, Judge, presiding.</p> <p>The plaintiff in error on the 2d. day of February, 1861, filed his bill in chancery in the Iroquois Circuit Court against Samuel Heuston and Eliza his wife, and Algernon S. Austin, to foreclose a mortgage given by Heuston and wife to him, dated November 25, 1857. Heuston in his answer admits having given the mortgage and that it was unpaid, but sets up a release of the same under an agreement made with the plaintiff that he would secure the debt by a new mortgage on other lands which he had done. Austin alleges in his answer that he is an innocent purchaser without notice of the mortgage from Heuston to plaintiff, that he purchased the land in controversy from Heuston and received a deed on the 17th of December, 1857, which deed was, on the 11th day of January, 1858, recorded upon the record of said county, that he had no notice of any kind of the existence of said mortgage, and that at the time of filing his deed for record said mortgage was not on file in the Recorder’s office of said county, and that he had not the slightest knowledge of the existence of said mortgage, either when he received his deed from Austin or when it was tiled for record, and denies that said mortgage is a lien on the land conveyed to him. It appears from the record that the mortgage to the plaintiff was filed for record on the first day of December, 1857, and a memorandum of the filing was then placed upon it by the Recorder of Iroquois county. Subsequently it was taken from the files by Heuston, the mortgagor, under an alleged agreement between himself and Kiser, the mortgagee, that he might do so upon his executing a new mortgage on his home farm to secure the debt. Heuston, in pursuance of said agreement did execute a new mortgage on other land and left it with a magistrate to be delivered to Kiser, and had a release prepared on the first mortgage for Kiser to sign, when he called for the second. Both mortgages were left with the magistrate. Kiser never called for the new mortgage, and never signed the release indorsed on the old one. He obtained possession again, however, of the first or old mortgage, and on the second of April, 1858, filed it a second time for record with the Recorder of Iroquois county. In the mean time, and on the 17th of December, 1857, Heuston and wife conveyed the premises to the defendant, Austin, which conveyance was, on the 11th of January, 1858, placed upon the records of the Recorder of said county. This sale and conveyance by Heuston to Austin was made by Heuston at the instance of one James M. Hood, one of the Trustees of the School Board of said county, and acting as such and as their agent, the Trustees having a prior mortgage on the land in controversy which Heuston was unable to pay. Hood in that transaction represented both Heuston and Austin, acting as the agent of both. It appeared from the evidence that Hood was authorized to settle with Heuston, and to procure the deed to 'be made by Heuston to Austin, the latter to pay the money to the Trustees, and that at tire same time he was authorized by Austin to get the deed from Heuston to him, and to negotiate also for him. in the settlement. Hood procured the deed and the consideration was paid by Austin to the Trustees. It further appeared in evidence that when said deed was delivered to Hood, Houston mentioned that a man by the name of Jacob Kiser had a mortgage on the premises for about $300, and that he had made arrangements with him to change the mortgage from the school and to put it on his home farm ; that at the time of the delivery of the deed to Austin,«Hood was told by Houston that there was a mortgage to Kiser given about the 25th of November, 1857, but that Kiser had agreed to release it and take one on his home farm instead. It did not appear, however, that Austin personally knew of said mortgage to Kiser. Houston stated upon his examination before the Master, that the only consideration for the deed from him to Austin was that the School Board should relieve him oí his notes to the Trustees, and that there was no consideration passed from Austin to him; that Hood knew all about Kiser’s mortgage because he hunted Kiser up to see if he would not take another mortgage before the deed was made and that no consideration passed from Austin to him. At the June term of the court, 1863, the case was heard on bill, answer, replication and proof, and at the November term succeeding, a decree was entered that the complainant take nothing by his mortgage on said land but that the same, so far as it' is a lien, incumbrance or cloud upon Austin’s title, be canceled, and that complainant’s bill be dismissed at his costs. Kiser, by his counsel, then caused to be entered of record an order that he excepted to the decision of the court, dismissing the bill, but no bill of exceptions was signed by the Court or made of record further than as above stated.</p>

<p>Appeal from the Circuit Court of the County of Peoria; the Hon. Marion Williamson, Judge, presiding.</p> <p>This suit was originally commenced by the appellee, John Killeen, against the appellant, Washington Wear, before J. Blanchard, a Police Magistrate for Peoria County, and judgment rendered against the latter, September 22, 1864, for §82 25. Wear took an appeal to the Circuit Court, and at a special term of said court, held in December, 1864, to-wit, on the 19th day of December, of that year, Killeen, the appellee, entered a motion to dismiss the appeal for reasons on file, and on the 20th of December, 1864, no resistance being then made, said motion was heard, and an order entered sustaining the same, and directing that a procedendo issue to the Magistrate before whom the cause was appealed, directing him to proceed as though an appeal had never been taken and judgment for costs entered against Wear. On the 22d of December, 1864, Wear, by his attorneys, entered a motion to set aside the order of court dismissing the appeal, and a cross-motion for leave to file a better appeal bond, and to reinstate the cause on the docket, .and on the 23d of December, of the same year, said motion and cross-motion were overruled, to which decision the appellant excepted and prayed an appeal to this court.</p>

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

<p>1. Corporations—in what manner they may be bound. Corporations may be bound on implied contracts, to be deduced by inference from their corporate acts, without either note, deed or writing.</p> <p>2. A municipal corporation, which by its own acts disregards its ordinances, is estopped from afterwards repudiating such acts.</p> <p>3. Where a corporation dealing with individuals, assumes powers upon which the validity of its acts depends, and subsequently it turns out that it does not possess the specific powers relied .on, it is not thereby excused from performance of its obligations, if they can be performed through the agency of other powers it does possess.</p> <p>4. Evidence—statements—res gestae. The statements of officials made .during the prosecution of work for a corporation, to persons engaged upon it, are a part ^f the res gestae, and admissible as showing the manner and circumstances under which the work was begun and prosecuted.</p>

Writ of Error to the Circuit Court of Cook County. This was an action of debt brought by the appellant against the appellee to recover the penalty for the violation of a city ordinance, which required every person, or business firm bringing to, or receiving flour at the Chicago market, to have the same inspected by the “ City Flour Inspector,” if so desired by the buyer, under a penalty of five dollars for each barrel sold without inspection.

Writ of Error to the Circuit Court of Iroquois County. This was an action brought by appellee against appellant for a cow alleged to have been killed on its Railroad. The case was tried before a justice of the peace, and appealed to the Circuit Court, where a trial by jury was had, and a verdict for thirty dollars and costs of suit found for defendant in error, upon which judgment was rendered, and plaintiff in error now prosecutes its writ of error to this court.

<p>1. Arrest of judgment—verdict responsive to issues. As a general rule, no judgment can be rendered in any action, until all the material issues of fact are determined.</p> <p>2. Same—verdict in replevin, when sufficient.—In an action of replevin, when the declaration was for a wrongful taking and detention of property, with a count in trover, and the pleas were non cepit, property in the defendant to first count, and not guilty to second count, formal issues being made upon these pleas: Held, that a verdict, which found the property in the plaintiff, and defendant guilty of an unlawful detention, and assessed nominal damages, determined the issues made.</p> <p>3. Verdict in replevin. In an action of replevin there is no general issue, and when a plea of non cepit is interposed, a verdict of not guilty is responsive to the issue.</p> <p>• 4. Instructions. It is not error to refuse to instruct a jury upon a mere abstract proposition of law.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. E. S. Williams, Judge, presiding.</p>

<p>1. Landlord and tenant—eviction—-payment of rent. An eviction of a tenant by the landlord, or a stranger, before the end of the term, exonerates the tenant from the further payment of rent.</p> <p>2. Same—what acts of landlord will discharge the tenant from the terms of the lease. Any act of the landlord which renders the lease unavailing to the tenant, discharges such tenant from the terms and conditions of the lease, and he may abandon it.</p> <p>3. Same—covenant by landlord to make repairs. Where a landlord covenants to repair before the term commences, but the tenant enters upon the term and receives possession before such, covenant is performed, he can not abandon the lease, and refuse to pay rent for the breach of any other covenant except for quiet enjoyment.</p> <p>4. Where a landlord fails to perform such covenant, the tenant may recoup the amount from the rent, or may sue upon the covenant.</p> <p>5. Same—grantee of landlord—eviction under him. If the grantee of a lessor, let to another during the unexpired term, who evicts the first tenant, such grantee becomes responsible for the act.</p>

<p>Writ of Error to the Circuit Court of Henry County; the Hon. Johh H. Howe, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding.</p>

This was an. application to this court in the Dame of the People of the State of Illinois, on the relation of Murray McConnel, for a writ of mandamus against James H. Beveridge, Treasurer of this State, to compel him to pay a certain warrant drawn upon the Treasury, in gold coin.

<p>1. Evidence in chancery—mode of preserving the same. Since the act allowing oral testimony in chancery, it has been a settled practice to preserve the evidence by recitals in the decree, if counsel prefer that method.</p> <p>2. Recitals in decree—how far conclusive. The statements of the evidence in the decree can no more be questioned by the appellate court, than can those of a bill of exceptions in a common law case.</p> <p>3. Same—power to correct, and when. If a Circuit Judge has inadvertently signed a decree containing erroneous recitals of the proof, he may, even at a subsequent term, correct it.</p> <p>4. Parties—in chancery. One Stephenson negotiated with Scarlett for the purchase of certain lands, which the latter was to convey to one Cooley, in exchange for which Stephenson was to give to Scarlett a mortgage upon certain premises, and also a deed from Cooley to another tract of land, held by the latter in trust for Stephenson, Scarlett and Cooley, both made their deeds which were left with a third person as a depositary, not to be delivered, however, until Scarlett should be satisfied with the title to the mortgaged premises. Scarlett was not satisfied with the title, and after ineffectual attempts by the latter to get possession of his deed, Cooley, by fraudulent means, and without any connection with Stephenson in that regard, obtained the deed from the depositary, and conveyed the land to another person. Held, that in a suit in chancery by Scarlett against Cooley and his grantee, to cancel these deeds, Stephenson was not a necessary party.</p> <p>5. Conflict of laws —jurisdiction of courts in one State over titles to lands in another State. Whether a conveyance of land, which has been duly recorded in the State where the land is situate, is a nullity, even upon the ground of fraud, depends upon the local laws of such State. The courts of another State have no power to annul such a conveyance.</p> <p>6. But if a court of equity in this State has obtained jurisdiction of the person of one who has obtained a deed for land lying in another State, by fraud, although he may have procured the deed to be recorded, the court may decree that he, and his grantee, who may not be in a condition to be protected as a bona fide purchaser, shall release all their claims acquired under the deed fraudulently obtained.</p> <p>1. And if they should refuse so to do, they may be attached for contempt and held in custody until they execute the decree.</p> <p>8. And if, in the mean time, it should appear that they are seeking to encumber the title by conveyances to third persons, that also might be treated as a contempt and punished accordingly.</p> <p>9. Or if they should go beyond the jurisdiction, the court can appoint a special commissioner to make the release in their stead.</p>

Writ of Error to the Circuit Court of the County of Kankakee; the Hon. Charles R. Starr, Judge, presiding. ■ On the áth of August, 1865, Louis Bourk instituted an action of replevin against William Biggs, before a justice of the peace in the County of Kankakee, for the recovery of a heifer. The cause was removed into the Circuit Court by appeal.

Writ of Error to the Superior Court of Chicago. Ejectment for a portion óf North Water Street, in the City of Chicago. In 1848, the premises were owned by W. G-. and- ti-. W. Ewing, who then leased to Hamilton.

This was an action commenced by the appellee against the appellants before a justice of the peace, and appealed to the Superior Court of Chicago, where a trial was had before the court, and a judgment rendered in favor of appellee for forty dollars and costs of suit, whereupon appellants appealed to this court.

This cause has been twice before this court, between the same parties, and is reported in 26 Ill. 507, and 29 Ill. 294. In this appeal, William S. Johnson and his assignees are added parties defendant.

On the 18th of January, 1859, Samuel Killham, William ' Davis, Edmund Kane and twenty others, petitioned the Commissioners of Highways of the town of Lyons, in Cook county, to open a new road, commencing in the centre of the Joliet and Chicago road, eighty rods east of west line of section 15, township 38, range 12; thence southerly, to, or near, O’Plain river, passing through the lands of several persons named.

Writ or Error to the Circuit Court of McLean county; the Hon. Charles Emerson, Judge, presiding. This was an action of assumpsit commenced in the Circuit Court of Logan county by Samuel P. Hodgen against William M. Dustin and George Musick. The cause was removed into the Circuit Court of McLean county, on change of venue, where a trial was had, resulting in a verdict and judgment for the plaintiff. The defendants thereupon sued out this writ of error.

This was an action of assumpsit brought in the court below by Jacob L. Smyser, T. J. Tapp and Joseph Chamberlin, partners, doing business under the name and style of J. L. Smyser & Co., against the Illinois Central Railroad Company, to recover damages for an injury to twenty-nine bales of cotton at Cairo, alleged to have been in the possession of the railroad company, on the 24th of October, 1862.

Samuel L. Richmond, Judge, presiding. In 1858 Anson Blake commenced an action of ejectment in the Circuit Court of Peoria county, against James L. Fash, to recover the south-east quarter of section one, in township eight, north of range seven east, situate in Peoria county. The cause was afterwards removed into the Circuit Court of Marshall county, upon change of venue.

<p>Appeal from the Circuit Court of Cook County; the Hon. Erastus S. Williams, Judge, presiding.</p>

Eiohabd Gf. Mostony, Judge, presiding. In the year 1861, Thomas Newlan gave to Frederick Shafer an order on H. Buchanan & Co., of Chicago, for the sum of $100, payable in liquors, for which order Shafer gave Hewlan a horse, and his note for $20.

<p>1. Administrators—of the terms of court at which they may he appointed. The Probate Courts, under the act in force in August, 1849, were always open for the purpose of granting letters of administration.</p> <p>2. Same—of appointments at special terms—and herein, of questioning the action had at a special term. But if it were otherwise, and letters of administration should be granted at a special term of the Probate Court, in a collateral proceeding it would be presumed the extraordinary circumstances ” existed as required in the 8th section of the chapter in the Rev. Statutes, entitled “Probate Court,” to authorize a special term to be held, and that the court had before it the facts in that regard which were essential to its proper action.</p> <p>3. Same—to whom administration may he granted, and when. It seems that under the 55th section of the chapter of “ Wills,” where a party dying intestate, was a resident of this State, and left a widow, next of kin or creditors, the Probate Courts can not properly grant letters of administration to a stranger to the estate, as one who is neither the widow, next of kin nor a creditor, until after the lapse of seventy-five days from the death of the intestate.</p> <p>4. The statute seems to require a delay of sixty days after the death of the intestate, within which the widow or next of kin may administer, before a creditor can apply for letters, and if no creditor applies within fifteen days after the sixty days, making seventy-five days from the death, then the Judge of Probate may appoint any person he thinks best qualified to manage the estate.</p> <p>5. This power in the court, after the lapse of the seventy-five days, to appoint any one he thinks best qualified, includes the power to appoint the public administrator.</p> <p>6. Same—in what proceeding an improper appointment can he questioned. Should letters of administration be granted to the public administrator before the expiration of the time within which others have the prior right to administer, and 'the record of the appointment shows that fact, but fails to show there was no widow, next of kin or creditor entitled to the administration, or that they had refused to administer, in a direct proceeding by appeal or writ of error from proceedings by the administrator so appointed, for the sale of lands of the estate, they would undoubtedly be held irregular and and be set aside.</p> <p>7. But in a collateral proceeding, involving the title to lands sold under such proceedings, the irregularity in the appointment of the administrator could not avail, but it would be presumed the Probate Judge granting the letters had the facts before him to justify his action.</p> <p>8. Former decisions. It was perhaps going too far in the case of the Unknown heirs of Langworthy v. Baker, 23 Ill. 488, to say that in consequence of such irregularities the entire proceedings by the administrator for the sale of lands were void, for it was sufficient to say in that case, it being a direct proceeding to reverse the action of the county court, that it was not in conformity with the statute.</p> <p>9. Administrator’s sale of land—mis-description of the premises. The petition of an administrator for an order to sell land, described the premises correctly, as certain lots in section thirty-three. The lots were described in the abstract from the county court attached to the petition, and in the inventory from which the abstract is, by law, to be taken, as being in section twenty-three. And the order of sale directed the land in the petition to be sold—namely, lots, etc., in section twenty-three. The notice of the sale, and the deed made to the purchaser described the land correctly. Held, in a collateral proceeding involving the title, that the mis-description of the section, as mentioned, was a mere clerical error.</p> <p>10. Same—application must "be made at the time specified in the notice. Where an administrator gives notice that he will, at a certain term of the court, apply for an order to sell lands of the estate to pay debts, the petition must be filed at the term designated in the notice. The presumption is, on such notice, and a failure to file the petition at the term specified, that the application is abandoned.</p> <p>11. If the petition should not be filed until a term subsequent to that appointed in the notice, all proceedings under it will be void.</p> <p>12. If the administrator files the petition and dockets the cause at the term named in the notice, there is no doubt it would be competent for the court to continue the cause to a subsequent term, and then grant an order to sell.</p> <p>13. Estoppel in equity. Where lands of an estate have been sold by an administrator under an order of court which was void by reason of the petition not having been filed until a term subsequent to that appointed in the notice, the mere fact that the guardian of minor heirs of the intestate received a portion of the proceeds of the sale and applied it for the use of his wards, will not work an equitable estoppel to their asserting title to the land, when from their infancy and other circumstances surrounding them it was apparent they could have had no knowledge of the action either of their guardian or of the administrator.</p> <p>14. Administrator’s sales of land—sales of separate parcels en masse. At an administrator’s sale of lots of ground, it appeared there was an arrangement between the administrator and a third party that two of the lots should be sold together, not separately, and the latter became the purchaser. Had the lots sold for an inadequate price the title of the purchaser would have been defeated on that ground. But as they sold for their full value and no one was injured by the arrangement, it was not regarded.</p>

Writ of Errob to the Circuit Court of Peoria County; the Hon. Marion Williamson, Judge, presiding. Douglas Putnam, as executor of the last will and testament of Levi Whipple, deceased, having sold and conveyed the interest of his testator in certain real estate, and a part of the purchase money remaining unpaid, exhibited his bill in chancery against Dobbins, a remote grantee, to enforce his alleged vendor’s lien.

Benjamin R. Sheldon, Judge, presiding. This was a suit in chancery instituted by Henry McNeil in the Circuit Court of Ogle County, against Jacob Reigard. The cause was removed into the Circuit Court of Stephenson County, upon change of venue. The object of the bill was to have a conveyance, absolute in form, declared to be a mortgage, and to redeem therefrom.

Writ of Error to the Superior Court of Chicago. Edward I. Tinkham exhibited his bill in chancery in the court below, against Eobert Fergus and others, to foreclose a mortgage given to secure the following note: “ §13,000.

<p>Appeal from the County Court of Livingston County; the Hon. Jonathan Duff, Judge, presiding.</p>

John M. Scott, Judge, presiding. This was a qui tam action commenced in the court below in the name of George W. Howard, who sued “ as well for the People of the State of Illinois as for himselfj” against the Chicago and Alton Railroad Company.

Writ of Error to the Circuit Court of Iroquois county; the Hon. Charles R. Starr, Judge, presiding.

Writ of Error to the Circuit Court of Bureau county; the Hon. Madison E. Hollister, Judge, presiding.

P. K. Leland, Judge, presiding. This was an action of assumpsit commenced in the court below on the 20th of January, 1864, by The Northern Illinois Coal and Iron Company of La Salle against Levi E. Parsons, to recover upon an account for coals, goods, wares and merchandize sold and delivered, and for work and labor.

<p>Writ of Error to the Circuit Court of McLean county; the Hon. S. L. Richmond, Judge, presiding.</p>

<p>1. Promissory note—what constitutes. An instrument was made as follows:</p> <p>“ Chicago, Ill., Sept. 19, 1854.</p> <p>“ For value received I promise to pay to the order of Shubael D. Childs two hundred dollars, with interest, payable to F. Vose or bearer, on the first day of July, next, at Messrs. Forrest Brothers’ & Co., banking house Chicago City, Illinois.</p> <p>“ SHUBAEL D. CHILDS, SR.”</p> <p>This was held to be a promissory note, and negotiable as such, notwithstanding it would not be considered as issued until indorsed by Shubael D. Childs, Jr.</p> <p>2. Assignment—what constitutes—guaranty. When the payee of a note indorses upon it : “I guarantee the payment of the within note,” that will operate also as an assignment of the instrument.</p> <p>3. Variance—between the name of the payee and indorser of the note. Where a promissory note payable to “ F. Vose” was assigned by “ Franklin Vose,” and the assignment is not put in issue by a sworn plea, it is proper to presume that the “ Franklin Vose” who indorsed the note is the “ F. Vose” to whom it was payable.</p>

Writ of Error to the Circuit Court of Will county; the Hon. Jesse O. Norton, Judge, presiding. This was an action of ejectment instituted in the court below by Edmund S. Holbrook against Mathias L. Cook, and Ellen Fellows was let in to defend as landlord. A trial resulted in a verdict and judgment for the defendant. The plaintiff brings the case hero upon writ of error.

Writ of Error to the Superior Court of Chicago. This was an action of assumpsit instituted in the court below by Joel S. Byington and Joseph Bromwell against John Van Arman, for money had and received by the defendant for the use of the plaintiffs.

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

Benjamin R. Sheldon, Judge, presiding. This was a suit instituted in the Police Court of the City of Rockford, in the name of the city, against Heman Fox, to recover a penalty for failing to perform road labor, under an ordinance of said city. The cause was removed into the Circuit Court by appeal, where a trial was had, resulting in a judgment against the defendant for the sum of two dollars. He thereupon took this appeal.

Erastus S. Williams, Judge, presiding. This was an action of ejectment instituted in the court below by Royal A. B. Mills against Henry Graves, to recover that part of the N. E. quarter of Sec. 34, 39, N. R. 14, “ beginning at a point on Lake Michigan, on the north line of a strip of said quarter conveyed by Samuel Ellis and Lydia, his wife, to William Jones, by deed, dated 15th August, 1835, running thence west on the said north line of said strip, to the west line of said…

<p>1. Pleading and evidence. If facts are well alleged in a declaration, they may be proven.</p> <p>2. In an action by the owners of a steamboat navigating the Illinois river against the owners of a bridge over that stream, to recover for injury to the boat resulting from a collision with the bridge, it is a proper pleading of the fact to allege that the bridge materially obstructed the navigation of the river ; and it is competent to ask a witness, an experienced river man, whether the bridge was a material obstruction to the navigation of the river.</p> <p>3. Evidence—what are facts, to be proven, as distinguished from-matters calling for the opinions of experts. The proving that the bridge was a materia] obstruction to the navigation of the river, is not like the testimony of experts, or of scientific men, whose opinions are sought on facts supposed, or proved, but it is testimony to the existence of the fact itself.</p> <p>4. Rights of parties are mutual—application of rules of evidence. As a general principle, rules of evidence are designed as well for defendants as for plaintiffs, and must be applied to them, respectively, in the same spirit of impartiality.</p> <p>5. So where the court allowed a witness to answer a question propounded by the defendant, which was of the same character it had previously refused to allow to be answered when asked by the plaintiff, the unequal application of the rule was held to be error.</p> <p>6. Navigable streams—erection of bridges across them—of the relative rights in respect thereto. It can not be said that the navigation of the Illinois river is of most importance and paramount to all conflicting rights, and that no one has any right to erect a bridge across the same, if it in the least materially obstructs its free navigation.</p> <p>7. The true doctrine is, that conceding the right of the State to authorize building bridges over the navigable waters lying within its jurisdiction, such structures should be so erected, as to interfere as little as possible with the right of free navigation.</p> <p>8. And if it appears that a bridge is of the most approved construction, and sufficient way left for the passage of boats in ordinary conditions of the wind and stages of the water, those navigating them, at the same time, using proper care and caution, it shall not be averred of such bridge that it materially obstructs the navigation of the river.</p> <p>9. If the wind and water are unpropitious to an attempt to pass through the draw, then ordinary caution would require the vessel to stop, until the danger has passed,</p> <p>10. The right to a free navigation of our western rivers, and the right of the State to provide means for crossing them by bridges or otherwise, are co-existent, and neither can be permitted to destroy or essentially impair the other.</p> <p>11. The authority to construct a bridge across a navigable water wholly in this State, should be exercised in such a manner, as, while it gives full effect to the power itself, it should interfere as little as possible with the right of free navigation ; and this is the true test whether a particular structure is such an obstruction as is contrary to law.</p> <p>12. A bridge constructed on the most approved plan, at the proper place and with sufficient channel between the piers, over any of our navigable waters, can not, under any circumstances, be held to be a material obstruction to the navigation, if it appear, that in ordinary times, with ordinary wind and water, the draw can be safely passed, and that no better structure could be erected for the purpose designed, with the amount of outlay demanded for such undertakings.</p> <p>13. If on reaching one of these bridges the vessel should be overtaken by an unfavorable wind, or by any circumstance, that would render some delay prudent, the delay must be incurred, for the right to erect the bridge is co-extensive with the right to navigate the river.</p> <p>14. A mere delay in passing a bridge, which prudence would advise at unpropitious moments, when wind and currents are not favorable, can not affix to it the quality of a material obstruction, or of any other description of obstruction, for the erection of which the owners should be liable in damages.</p> <p>15. Navigable waters—effect of ordinance of 1787. There is no restriction in this ordinance, if it be still in force, on the power of the State to use the most approved artificial means for crossing navigable waters within the State ; it only prohibits their obstruction, and the imposition of any tax or duty on their navigation.</p> <p>16. The ordinance, in declaring certain navigable waters shall be common highways and forever free, without any tax, impost or duty therefor, does not mean that they shall be common highways free from all and every condition, but only that they shall be free from obstruction, and free from any burden imposed in the shape of a duty or tax.</p> <p>17. Evidence—under the general issue. In an action by the owners of a steamboat navigating a river, against a company owning a bridge erected across the same, to recover for damages resulting from a collision with the bridge, the act of the Legislature authorizing the bridge to be built is admissible in evidence under the general issue.</p> <p>18. Same—admissibility, generally. It is not a valid objection to such testimony that it might mislead the jury into the idea that the act afforded a complete defense to the action ; the opposite party could obviate any improper effect the testimony might be supposed to have, by requiring of the court specific instructions as to the effect to be given to the act.</p>

<p>1. Negligence—what constitutes. Where a railway train is made up of platform cars, which are being driven before the locomotive towards the crossing of a highway, the approach being through a cut, so that persons approaching the crossing on the highway would be unable to discover the character of the train until it emerged from the cut at the crossing, it is incumbent on those in charge of the train to use every possible precaution in order to avoid collisions, both by running at a low rate of speed and by a continuous sounding of the bell or whistle for the eighty rods required by the law.</p> <p>2. And in an action for injury resulting from a collision at such a crossing, the fact that the signal was not continuously given in the manner required by the statute, is to be considered in connection with the peculiar mode in which the train was made up, the high rate of speed at which it was running, the dangerous character of the crossing, and the fact that the engineer saw the vehicle in which the person injured was riding, approaching on the highway at the time the signal should have been given.</p> <p>3. Where a train of the character indicated came in collision with the vehicle at such a crossing, resulting in the death of the passenger, it appearing that the engineer saw the vehicle approaching at the time he should have given the signal, but neglecting to do so, except by a single blast of the whistle, and not attempting to check the speed of the train until he whistled down the breaks at the moment of the collision, this was held to be, not merely negligence, but a criminal recklessness of human life, for which the guilty parties might well have been held to answer on the criminal side of the court.</p> <p>4. Nor did the fact that the party killed by the collision was partially deaf, excuse the continuous sounding of. the whistle or ringing of the bell from the point required by the statute. He was at least entitled to such warning of the approach of danger as the law designs to give to those having full possession of their faculties. It should not be inferred that because a person laboring under such an infirmity might not hear the signal from the most remote point he would be unable to hear it at a nearer point.</p> <p>5. Negligence—of comparative negligence. A person in crossing a railroad in a vehicle is guilty of a certain degree of negligence, if he does not ascertain by the eye whether a train is approaching, though the proper signal be not continuously sounded, but in this case the negligence in that regard on the part of the plaintiff’s intestate was slight in comparison with the reckless carelessness of those in charge of the train, and should not, therefore, bar a recovery.</p> <p>6. The rule is, that although the plaintiff in an action against a railroad company for injury from alleged negligence of the defendant, may have himself been guilty of some degree of negligence, yet if it be but slight in comparison with that of the defendant, it should be no bar to his recovery.</p> <p>7. No inflexible rule, however, can be laid down. Each case must depend on its own circumstances, and the question of comparative negligence must be left to the jury, under the supervision of the court.</p> <p>8. Evidence—of affirmative and negative testimony. In an action against a railroad company by the administrator of one who was killed*by a collision of his buggy with a train upon the railroad, while crossing the same upon a highway, the engineer and fireman testified to repeated soundings of the whistle upon the locomotive on approaching the crossing, while four other witnesses, who were near the train, testified that there was only a single blast Upon the whistle. .It was held, the jury were justified in giving more weight to the testimony of these witnesses than to that of the engineer and fireman, not merely because of their greater number, but for the reason, so far as appeared, they were free from all bias, while a very heavy moral responsibility attached to the adverse witnesses, from the burden of which they had the strongest inducements to relieve themselves, if possible, by their own testimony. See also Chicago, Burlington and QuincyR. R. Co. v. Cauffman, Ante, 427.</p>

This was an application to this court for a writ of mandamus, in the name of the People of the State of Illinois, on the relation of Lyman Baldwin, against Delos W. Young, Mayor of the City of Aurora, and Lorenzo D. Brady, and others, Aldermen of said city, to compel the respondents, comprising the Common Council of the City of Aurora, to count the votes viven for Alderman at an election held in the fourteenth ward O of said city, and to admit the relator to take the oath of…

Charles R. Starr, Judge, presiding. This was an action of replevin brought by Zahnon F. Hanford against Jacob Obrecht. A trial resulted in a verdict and judgment for the defendant. The plaintiff brings the case to this court by appeal. A sufficient statement of the case will be found in the opinion of the Court.

Writ of Error to the Circuit Court of the County of Iroquois; the Hon. Charles R. Starr, Judge, presiding. William Lynch was indicted for murder in the court below, at the Hovember term, 1864.

This was an application to this court by Henry Petrie, for a writ of habeas corpus.

Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding. This was an action of assumpsit instituted in the court below by George Gulliver against the Adams Express Company, to recover the sum of three hundred dollars, alleged to have come to the possession of the defendants as common carriers, but was never delivered by them to the party to whom it was directed.

<p>Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Clay county; the Hon. A. Shaw, Judge, presiding.</p>

Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. This was an indictment found by the grand jury in Fayette county, against James McIntyre, for the alleged murder of Ewing Stalle, at Vandalia, in Fayette county, on the 26th day of March, 1864. The cause was removed into the Circuit Court of Marion county upon change of venue, where a trial was had.

<p>1. Widow’s claim to the specific articles allowed her—whether her administrator may sue for and recover them, or their value. The legal title to the specific articles allowed to the widow upon the death of her husband, vests in her, and not in the personal representatives of the husband. And should the widow die before reducing those articles or their value to possession, and before administration is granted upon the estate of the husband, her administrator may sue for and recover their value from the husband’s estate.</p> <p>2. Appraisers and administrator of husband’s estate—of their respective duties in that regard. It is not the duty of the appraisers of the estate of the husband, to set apart the specific articles to the widow, but simply to certify their value to the probate court, in order that they may be excluded from the assets of the estate, and that the administrator may not be chargeable with them as assets.</p> <p>3. But it is the duty of the administrator of the husband’s estate to set them off to the widow or to her administrator, and if he fails to do so, it would be evidence of a conversion, and he would be liable for their value, if such articles, or their value, belonged to the estate of the husband.</p> <p>4. Evidence to justify a recovery. To justify a recovery, however, against the personal representatives of the husband, upon such a claim, it must be made to appear that the estate of the husband was possessed of these specific articles at his death, or their value in other property or money.</p>

<p>Writ of Error to the Circuit Court of Franklin county; the Hon. A. D. Duff, Judge, presiding.</p>

Writ of Error to the Circuit Court of Randolph County; the Hon. Silas L. Bryan, Judge, presiding. This was an action of assumpsit commenced in the court below by Archibald Hood against Francis Elder at the August Term 1862. The declaration contained the common count, only, for real estate sold and conveyed. Defendant plead 1st, general issue; 2nd, payment; 3d, satisfaction.