Volume 39 — Illinois Reports

Writ of Error to the Circuit Court of Franklin county; the Hon. A. D. Duff, Judge, presiding. This was-an action of trespass on the case commenced in the court below, by Jacob Earnhardt against Oliver C. Martin. An issue was formed, and the cause came on for trial at the August Term, 1865.

Writ or Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. John M. Rotan died in 1837, leaving a widow, Cynthia, and John M. Rotan, Byron Rotan, Susan Jane and Haney Rotan, his children. The widow, Cynthia, married Willis Smith, and he was afterward appointed guardian of these children, who were all in their minority, executing bond, with several sureties, two of whom subsequently died.

<p>1. Paupers. This was a prosecution under the sixteenth section of the chapter of the Revised Statutes, entitled “ Paupers,” for bringing a pauper into Franklin county, wherein he was not lawfully settled, knowing him to be a pauper. There is no question in the case, except one of fact, whether the defendant knew the person to be a pauper.</p>

<p>1. CONTRACTS — construction—furnishing substitutes for the army. A receipt was given to one Raney for “five hundred and twenty-five dollars, in full for a substitute to be furnished, and the said substitute, to be a clearance in his stead.” In an action by Raney to recover back the money, on the ground that no substitute was furnished, it was held, the contract implied that the plaintiff had been drafted, and the undertaking of the party receiving the money was, that the substitute to be furnished should be received and mustered into the service of the United States, in the place and stead of the plaintiff.</p> <p>2. If the party for whom the substitute was to be furnished was relieved of the draft by the order of the government, and not by the acceptance of the substitute, then the contract of the party receiving the money was not performed, and the party paying it could recover it back, and with interest.</p>

Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. '• Henry Bond and John Shinn were indicted in the Circuit Court of Clinton county, on the 7th of March, 1865, for an assault, with intent to murder one John Love. The cause was afterward removed into the Circuit Court of Marion county on change of venue.

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

John H. Mulkey, Judge, presiding. On the 25th day of February, 1865, Aaron A. Frew commenced his action of assumpsit in the court below against John W. Corgan, alleging, as the ground of the action, that Mason F. Woods, on the 6th day of December, 1861, made his note to C. P. Christian for $500, payable on or before the 20th day of May, 1862, with ten per cent, interest from due until paid; that Christian indorsed the note to John W. Corgan, the defendant, and that Corgan…

Writ op Error to the Circuit Court of Clinton County; the Hon. Silas L. Bryan, Judge, presiding. Several creditors of Meleher Zimmerman and John J. Miller recovered judgments against them in the court below, on the same day, in proceedings instituted under the law in relation to mechanics’ liens. John Buchter, one of these creditors, recovered a judgment for the sum of $289.42; Schulenberg and Boechler for $255.5J, and John Bichert for $86.54.

<p>Appeal from the Circuit Court of Pulaski county; the Hon. Wesley Sloan, Judge, presiding.</p>

<p>Writ of Eeeoe to the Circuit Court of Washington county; the Hon. H. Hi. S. O’Mel very, Judge, presiding.</p>

Writ of Ebeob to the Circuit Court of Union county; the Hon. Alexander M. Jenkins, Judge, presiding. Some time prior to the 31st of October, 1858, John Adams, Ezekiel M. Miller and Eimrod C. E. Adams, entered into copartnership in a steam saw and grist-mill, in Union county, Illinois. The business was carried on until that day, when John Adams died.

Writ of Error to the Circuit Court of Jefferson county; the Hon. S. S. Marshall, Judge, presiding. In March, 1862, Minerva Merrell, as the widow of Melson C. Merrell, deceased, exhibited her bill in chancery in the Circuit Court of Marion county, for an assignment of dower'in certain premises, in which she alleges her husband was seised of an equitable estate of inheritance during their coverture.

Writ of Error to the Circuit Court of Fayette county; the Hon. Silas L. Bryan, Judge, presiding. This was a scire facias on a recognizance. The pleadings, upon which some questions arise, appear in the opinion of the court.

<p>1. Ihtrtjdeb—may be ejected by the party in possession. Where one is in the lawful possession of premises, he has a right to eject an intruder thereon, using no unnecessary force in so doing.</p> <p>2. City op Springfield—ordinance against fighting, etc. The ejecting of an intruder from premises by one who is in the lawful possession thereof, without using unnecessary force, is not within the spirit of the ordinance of the city of Springfield, which prescribes a penalty against any person “ who shall assault, strike or fight another, or shall be guilty of any misconduct calculated to provoke a breach of the peace.”</p> <p>3. Homestead—abandonment—conveyance by the husband. Where the owner of a homestead moves off the premises, with his family, to a farm belonging to another person, and subsequently the husband alone conveyed away the hoipestead, this was held such an abandonment as destroyed the homestead right.</p> <p>4. Same—cannot be claimed by the wife in the life-time of the husband. In this case, the wife voluntarily abandoned her husband while they were living on the farm, and intruded upon the possession of his grantee in their former homestead, insisting she still had a homestead right therein. But it was held that, during the life-time of the husband, no claim to a homestead could exist in her. His domicile, in law, was hers.</p>

Charles Emerson, Judge, presiding. This was an appeal from an order made by the court helow, upon the clerk, William L. Hammer, to pay over to the appellees, certain money which had been deposited with him, upon, the filing of a bill in equity, by one Joseph Smallwood, against these appellees and others, defendants.

Writ of Error to the Circuit Court of Shelby county; Hon. Charles Emerson, Judge, presiding. This was an action of ejectment instituted in the court below, by plaintiffs in error against the defendants in error, for the east half of the south-east quarter of section thirty-six, town eleven north, range three east, in the county of Shelby.

Writ of Error to the Circuit Court of Coles county; the Hon. Oliver L. Davis, Judge, presiding. This was an indictment presented by the grand jury of Coles county, at the October Term, 1864, under the one hundred and twelfth section of the Criminal Code, against William A. Hoe, Elzy Blake, Perry Mathews, Abram B. Spears and William Cullom.

Edward T. Hice, Judge, presiding. This was a suit in chancery instituted in the court below, by James C. Conkling, to enjoin the opening of a street in the city of Springfield. An injunction was awarded, which, on the final hearing, was dissolved, and the bill dismissed. Thereupon the complainant took this appeal. The grounds of objection to the decree of the comt below are fully set forth in the opinion of the court.

<p>1. School laws of 1849 and 1855—repealed. The acts of 1849 and 1855, in relation to schools, are, in terms, repealed by the school law of 1857.</p> <p>2. Teacher—must exhibit certificate of qualification, under act of '857. A teacher under the proviso in the act of 1857, unless he obtain the requisite certificate of qualification, and exhibits it to the school directors, before his employ, ment, is not entitled to any portion of the school fund.</p> <p>3. Same—effect of act of 1865 in that respect. The act of February 16,1865, in relation to schools, contains nothing in conflict with the act of 1857, in respect to the exhibition of a certificate by the teacher.</p> <p>4. Pleading—declaration by a teacher against school directors. In an action by a teacher against the school directors, under the act of 1857, the declaration must aver that the proper certificate of qualification was exhibited to the board of directors prior to his employment, or the action will fail. The omission to make such an averment, will not be cured by the verdict.</p> <p>5. Same—declaration for money out of a public fund. When a party seeks to draw money from a public fund, under the provisions of a law controlling its disbursement, he must, by the necessary averments, bring his case within its provisions.</p> <p>6. Parties—in suit against school directors—mode of description. Where a suit was instituted against the individual directors of a school-district, but described them as a body politic and corporate, and also gave their corporate name: Held, that such action was not improperly brought. In such case, the individual names are regarded as surplusage.</p> <p>7. Execution—whai character of writ can he awarded against school directors. A judgment against school directors can only be enforced in the mode provided by section forty-nine of the act of 1857; and an order hy the court for a general execution to issue on such a judgment, is erroneous.</p>

JosEPH Sibley, Judge, presiding. This was an action of ejectment, tried at the October Term of the Hancock Circuit Court, 1865, for the east half of lot four, block five, in Hibbard’s addition to the town of Mauvoo. The declaration and plea were in the usual form; a jury was waived, and the case was tried by the court, who rendered judgment against the defendant (appellant), for the premises and costs of suit; to reverse which judgment the defendant appealed to this court.

Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward T. Rice, Judge, presiding. This was an application by John Smith to the commissioners of highways of the town of Woodside, in Sangamon county, for a private road, to be established from his farm over the land of William Nesbitt and others to a public road. The commissioners granted the application and laid out the road.

<p>1. Replevin—requisites of the affidavit. The statute requires that the affidavit for a writ of replevin, shall state, in positive terms, that the property has not been taken “ for any tax, assessment or fine levied by virtue of any law of this State.”</p> <p>2. In this case the affidavit stated that the property had not been taken for any assessment or fine levied by virtue of any law of this State, nor seized under any execution or attachment against the goods and chattels of affiant, “ and further, that the same has not been taken for any legal tax, as this affiant is informed and believes.” Held, the affidavit was bad in not stating, in positive terms, that the property had not been taken for any tax levied by virtue of any law of this State.</p> <p>3. Validity op tax—cannot he questioned in replevin. The law forbids the consideration of the question of the legality of a tax, assessment or fine levied under any law standing on the statute book of this State, by means of the action of replevin.</p> <p>4. Same—may he questioned in action of trespass. The question of the validity of a law imposing a tax may be presented in an action of trespass, and if an unconstitutional law has been enforced against the plaintiff, depriving him of his property, the most ample redress may be found in that action.</p> <p>5. Amendments—of affidavit in replevin. An application for leave to amend an affidavit in replevin is addressed to the discretion of the court.</p> <p>6. Where it appears from the original affidavit filed, that the plaintiff seeks to present in the action the question of the validity of the law imposing the tax "under which the property was taken from him, the court may properly refuse to allow an amendment, even though the plaintiff proposes so to amend the affidavit as to comply with the statute, because the court can see that a question is sought to be raised which cannot be considered in this action.</p> <p>7. Replevin—dismissal of suit. Should it appear in any stage of a suit in replevin, that a question of taxation is involved, and the constitutionality of the law imposing the tax was the hinge on which the case turns, the court should thereupon dismiss the suit.</p>

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward Y. Rice, Judge, presiding.</p>

This cause was brought into this court, by the auditor of the State, under the provision of section thirty-three, of the act of 1863, relating to the assessment of property in counties adopting the township organization. The cause comes up from Peoria county, and the facts in the case are fully stated in the-opinion of the court.

<p>1. Practice in chancery—duty of successful party to prepare the decree. Where the minutes of the judge afford sufficient data, it is the duty of the solicitor of the party in whose favor a decree in chancery is pronounced, to write out the decree in proper form, and submit it to the court for its approval, and furnish it to the clerk to be entered of record.</p> <p>2. If such duty be neglected, the party has no right to complain or to claim indulgence by reason of the decree not being entered at the term it was pronounced ; and if the decree should be entered of record at a subsequent term, nunc pro tunc, it seems he would be bound by its terms the same as though it had been entered at the proper time, although by lapse of time some of his rights may thereby be cut off.</p> <p>3. Same—what is a sufficient entry for a decree on hill to redeem. On a bill to redeem from a deed absolute on its face, but alleged to be simply a mortgage, a decree in favor of the complainant should find the precise amount due to the defendant; and where the minutes of the judg^ omit to specify that amount, they do not afford sufficient data to enable the complainant’s solicitor to draw up the decree.</p> <p>4. Same—entering decree nunc pro tunc—time for payment of money on decree to redeem. On a bill to redeem from a mortgage, the court pronounced a decree in favor of the redemption, and directed the amount due to defendant, without specifying what that amount was, to be paid by the first day of the next term ; this decree, however, was not entered of record at the term it was pronounced, but was only entered in the minutes of the judge. At the next term a decree to the same effect, but finding the amount due, was entered of record nunc pro tunc; and, at the same time, the court, finding the fact that the money had not been paid within the time prescribed in the decree as pronounced at the former term, dismissed the bill. This was error. The minutes of the judge at the first term being insufficient data from which to enter the decree at that term, on entering the decree at ¡the next term some short time should have been given the complainant within which to pay the moneys</p> <p>5. Compound interest—what constitutes. Where a decree finds a sum of money to have been due at a certain day, and interest is computed thereon up to the day of entering the decree, the principal and interest so found will be the amount of the decree, and the decree will bear interest from the date of its entry. This is not allowing compound interest.</p> <p>6. Measure of DAMAGES—where the price is agreed upon. Where one agrees to pay a specific sum as rent, for the use and occupation of premises, proof that the premises were worth more than that sum is of no avail. The contract must control. It is unlike the case of proving the consideration of a deed, when a party may show a different one from that expressed in the deed.</p>

Writ op Ebbob to the Circuit Court of Montgomery county; the Hon. Edwabd T. Bice, Judge, presiding. This was an indictment against the plaintiff in error for obtaining possession of a deed under false pretenses. The case was tried by a jury in the court below, who found the defendant guilty. A motion for a new trial was made, as, also, in arrest of judgment, both of which were overruled, and judgment entered on the verdict.

Joseph Gillespie, Judge, presiding. This was an action of assumpsit originally brought in the Alton city court by the appellants against the appellee, and taken to the Madison Circuit Court by change of venue. On the 12th of January, 1864, Maxe bought a bill of iron from Topping Brothers & Company. In the same month, J. H. Stephenson gave Maxe an order on Topping Brothers & Company, also for iron.

D. M. Woodson, Judge, presiding. This was a suit which was commenced August 1, 1864, in assumpsit by the appellees against the appellant. The declaration contained three counts. The first for money had and received; the second upon an account stated, and the third was for interest. The trial in the court below resulted in a judgment for the plaintiffs there, the appellees here, for one thousand dollars.

<p>1. Agency—what constitutes. One of two tenants in common of land purchased his co-tenant’s interest therein. There were mechanics’ liens upon the premises, which were to be paid off by the purchasing tenant, by allowing a sale to take place under the anticipated decree and having him become the purchaser, and he was to be allowed as a credit on the purchase-money, one-half of the full amount of those debts: Held, that this agreement constituted the purchaser the agent of his vendor in respect to the payment of those hens.</p> <p>3. Same—agent cannot make profit out of the matter of his agency. And, by reason of the relation existing between the parties, of principal and agent, the latter could not speculate in regard to the discharge of the liens, at the expense of the former.</p> <p>8. So that whatever abatement of the liens the agent may have procured, he would be required to allow it to his principal.</p> <p>4. Trustee—what constitutes. In such case, the purchaser, retaining the purchase-money in his own hands with which to discharge the incumbrances on the property purchased, held the fund as trustee for his vendor.</p> <p>5. Same—trustee cannot make profit out of the ti-usi fund. And holding the money as trustee, if, in applying it in discharge of the incumbrances, as was agreed upon, he makes a profit, he must account therefor to his cestui que trust.</p> <p>6. Garnishment — defect in form of writ, waived hy appearance. When a party appears and answers a writ of garnishment, he thereby waives any want of form in the writ.</p> <p>7. Set-ofe—inequity. A judgment against two jointly cannot be set off in equity against a debt due to one of them individually, except it be alleged and proven that the other is insolvent.</p>

D. M. Woodson,. Judge, presiding. This action was originally brought before a justice of the peace in said county, to recover the value of a United States treasury note, of the denomination of one hundred dollars. In the spring of 1864, Rush English, a boy, found such a note on the public square in Carrollton. It was at once claimed and taken from him by George Wright, who was then passing.

Joseph Sibley, Judge, presiding. On the 25th of September, 1864, William Bostick was recognized before a justice, for an assault with a deadly weapon, to appear at the next term of the Circuit Court of Hancock county, with Samuel R. Combs and others as sureties. The indictment was found at the next term.

<p>Writ of Error to the Circuit Court of Fulton county; the Hon. Chauncey L. Higbee, Judge, presiding.</p>

<p>1. Delivery—as between the parties, not essential to a sale. As a general principle, there must be a delivery of the article to complete the sale, but between the parties it is not indispensable. Even where the property is not cumbrous and may easily he delivered, actual delivery is not necessary to vest the title in the purchaser. •</p> <p>2. Delivery—of bulky article—tohal constitutes. Where L. purchased four ricks of hay at a stipulated price per ton, the same to he haled and weighed by him, and he actually haled seven hales therefrom and took it into his possession, offering to pay for it but refusing to hale more, alleging that it was unsound and unfit to be haled, there was all the delivery of which the article was susceptible.</p> <p>8. Fraud which vitiates a sale — a concealment of facts asked for. To make the mere suppression of a fact, such a fraud as avoids the contract, there must he something more than a failure to communicate facts within the knowledge of the vendor—there must he a concealment, as by withholding information when asked tor, or by using some device to mislead, thus involving act and intention.</p> <p>4. And the distinction in such cases seems to he that the seller may let the buyer cheat himself ad libitum, hut must not actively assist him in cheating himself. So, in a sale of hay where the seller was silent, and used no artifice to induce the purchaser to buy, and the hay was then in ricks, and proper diligence would have enabled him to detect its unsound condition, the sale' Was not fraudulent.</p> <p>5. Implied warranty—in case of fraud. While it was formerly the doctrine that there was an implied warranty that the article sold was what it appeared to be, and that “ a sound price warranted a sound commodity,” the rule now is-that the vendor is not responsible for any defects unless he is guilty of a fraud.</p> <p>6. Exceptions to this rule. Like all general rules this has its exceptions; as in case of sale by sample where the law implies a warranty that the bulk is in quality as good as the sample, and in case of a sale without opportunity for inspection, where the implied warranty is that the property is of a fair merchantable quality and condition, and fit for the use for which it is purchased; so also in case of an executory contract for the sale of personal property, where there is no stipulation on that subject.</p> <p>7. Caveat ehptor—when applied. Where there is no fraud, and the buyer takes the article on inspection, or with opportunity to inspect, he cannot complain, and the proper rule is caveat emptor. Hence, this court has held that where there is neither fraud nor express warranty, the purchaser buys at his peril.</p> <p>8. Implied warranty on articles sold—different from articles manufactured and sold. In the case of articles manufactured by the seller, there is an implied warranty that they are manufactured in a workmanlike manner, hut in case of a mere vendor of the article, if there is neither fraud nor an express warranty, the purchaser buys at his peril.</p> <p>9. And where the parties contract about an article of merchantable quality, that is, marketable anywhere as a sound article of merchandise, the buyer might then receive a part and would be at liberty to show the actual defect in its quality as an excuse for neglecting to take the rest; but where the article is bought for a particular use, and it is fit for that use, the buyer must pay for it.</p>

Challes Emeeson, Judge, presiding. This was an action on the case brought in the Circuit Court of De Witt county in August, 1859. After the pleas were filed the venue was changed to Macon county. The facts sufficiently appear in the opinion.

Writ oe Error to the Circuit Court of Sangamon county; the Hon. E. Y. Rice, Judge, presiding. Robbins originally filed his bill in the Sangamon Circuit Court, alleging a partnership, under written agreement, and its extension by parol, and praying a settlement. Laswell denied both allegations, and the court below, on the evidence, decided both in favor of Robbins, and rendered a decree against him for $411.83, that being the sum ascertained by the report of Hr.

John M. Scott, Judge, presiding. Elijah Yocum, having been duly elected overseer of highways, refused to serve. This was an action to recover the statute penalty of $10 imposed for such a refusal. Judgment was rendered against him therefor, both by the justice and in the Circuit Court, and he took this appeal. On the 4th day of April, I860, at the annual town-meeting, Elijah Yocum was, on motion, in open meeting, elected overseer of highways.

<p>1. Appeal BOND—in forcible entry and detainer—its requisites. An appeal bond, in a case of forcible entry and detainer, is the same as that required in other appeals, with the addition of a clause for the payment of the rents pending the appeal.</p> <p>2. Same—effect of conditions not required by statute. When an appeal bond contains conditions which are not required by the statute, such conditions are not obligatory upon the makers.</p> <p>3. So where an appeal bond, given in a case of forcible entry and detainer, contained a condition for the payment of all damages that had or should accrue by reason of the forcible entry and detainer, held, that it was a condition not required by the statute, and therefore void.</p> <p>4. Damages—in an action on an appeal bond in forcible entry and detainer. Tn such an action damages resulting from the forcible entry and detention of the premises, apart from the rental thereof, are not recoverable.</p>

J. Sibley, Judge, presiding. The facts in this case appear in the opinion. The following instructions, among others, were given for the plaintiff in the court below: “ 1.

Writ of Error to the Circuit Court of Morgan county; the Hon. D. M. Woodson, Judge, presiding. The prosecuting witness in this case was Robert Brookshire. In December, 1864, he entered the “ caboose ” car of a freight train at Jacksonville, with John Collins and John Smith, the plaintiffs in error, and others. On the way to Orleans station, the three persons named joked and played with each other, and all became very familiar.

<p>1. Plea oe duress—its requisites, when pleaded to a scire facias on a recognizance. When the scire facias on a recognizance, shows the principal was indicted, that the court ordered him to be held to bail, and that he was in the lawful control of the sheriff for that purpose, a plea of duress of the principal, which does not show that such imprisonment was unlawful, is bad.</p> <p>2. ScmE pacías ON Recognizance—defense by the security—duress of the principal. The security upon a recognizance cannot plead the duress of his principal in discharge of his liability.</p> <p>3. Same—where the principal is a soldier. United States soldiers are not exempt, because of such service, from trial and punishment by the State courts for a violation of its criminal laws.</p> <p>4 Where an arrested soldier is surrendered or abandoned by the military to the civil authority he cannot relieve himself from arrest by giving bail, and then voluntarily placing himself under military control, and insist that his bail is discharged by the principle of vis major.</p> <p>5. Practice—when certain objections must be taken. It is too late to object, for the first time, on error, that, on the trial of the issue on a plea of ml tiel record, interposed to a scire facias on a recognizance, the indictment was improperly admitted in evidence, because there was nothing to show that it was returned by a grand jury into open court. Such an objection, if availing at all, should be made on the trial below, so that the record could be produced, and the fact, in that regard, ascertained.</p> <p>Note by the Repórter.—See Myers v. The People, decided at present term.</p>

<p>1. Agreement—how construed. Where a judgment in ejectment by R. against 0. had been virtually affirmed by the Supreme Court, and no writ of possession had issued, but 0. was still prosecuting a suit in chancery for the land and to enjoin the suit in ejectment; and thereupon the parties agreed by order of record, that 0. should retain the possession a year and build a certain fence; that R. should take no writ of possession for a year, and that the agreement should not affect the rights of either in the chancery suit; if G. recovered therein he was to pay no rent for the year, and was “ to surrender possession at the end of the year unless said court of chancery in said suit, or the judge of said court should otherwise orderHeld, that E. was entitled to a writ of possession at the end of the year unless the court of chancery in that, suit or the judge of said court should otherwise order, and that a new trial could not be had by G., under the statute, in the ejectment suit, or any other proceedings at law. Held, also, that by this agreement G. abandoned all legal defenses, and relied only on his equitable rights.</p> <p>2. JuDeMEHTS AUD OBDEES—vacated on motion. And where, in such case, the Circuit Court had made an order setting aside the judgment in ejectment and granting a new trial, and afterward "on motion of E. set aside this order held, that there was no error, and that motions of tills character are within the equitable jurisdiction of courts of law over their judgments, process, or sales made under their authority.</p> <p>3. Obdees—when may he vacated. To promote justice, to carry into effect the agreement of parties, and to prevent either from obtaining an unfair advantage of the other, a court of law may vacate an order where unfairly obtained.</p>

Writ of Error to the Circuit Court of Greene county; the Hón. D. M. Woodson, Judge, presiding. Marshall S. Corey was the administrator of David H. Post. Philip V. Admire and Hernán Goodrich were the securities on the administrator’s bond, which was dated 20th June, 1856.

<p>1. Administrator's notice of application for leave to sell land—its 'requisites. An administrator gave notice that be would present a petition “ at the next term of the Shelby Circuit Court, to he holden at the court-house in Shelby-ville, on,” etc., and the notice was published in a newspaper in Shelby county. Upon an objection that the notice did not specify in what county or State the court was to he held at which application was to he made, it was held sufficient.</p> <p>2. Recital in degree — cures defective certificates of publication. A defect in a certificate of publication of such notice, in not stating the first and last days of the publication, is cured by a recital in the decree that "it appearing to the court that notice according to law was given of the pendency of this cause.”</p> <p>8. Presumption—from, recital in decree. The presumption arises from such a recital that the court received other evidence than the certificate of the date of the publication.</p> <p>4. Purchasers at administrators' sales — how fa/r protected. The rule in regard to administrators’ sales is, that when the court has once obtained jurisdiction by the notice and petition, then it matters not what errors may intervene, the title of the purchaser is protected under the decree.</p> <p>5. This rule applies, as’ well in a case where the sale under the decree is attacked collaterally by bill in chancery, as in a direct proceeding to reverse the decree.</p> <p>6. Former decision. This rule is not in conflict with any thing decided in the case of Lloyd v. Malone, 23 Ill. 43.</p> <p>7. Collateral proceeding—what consUfules. Where a hill in chancery is filed to set aside an administrator’s sale, the proceedings should not, perhaps, he regarded as collateral to the former suit so far as it relates to the parties to that suit, but as to purchasers, whose title derived from the sale is sought to be divested, it is as purely collateral as an action of ejectment.</p> <p>8. Jurisdiction in chancery—where there is a remedy at law. Where no conveyance has been made to a purchaser at an administrator’s sale, it is not necessary to resort to a bill in chancery to set aside the sale for any alleged defects in the proceedings; the action of ejectment will furnish an ample remedy.</p> <p>9. Administrator’s sale—report thereof whether necessary. It is not essential to the validity of an administrator’s sale of land, that he should make a report thereof to the court.</p>

John M. Scott, Judge, presiding. This was a bill in chancery, in the nature of a creditor’s bill, brought by the appellees against the appellants, upon three judgments against one Byron W. Gray. Two of these judgments were rendered in the United States Circuit Court for the Southern District of Illinois, and amounted in the aggregate to the sum of $3,504.86, besides the costs.

Writ of Error to the Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding On the 11th of March, 1857, a contract was made between the Peoria and Oquawka Railroad company and the Illinois Central Railroad company, which appears at length in the opinion. In the month of June, 1863. a horse belonging to Kanouse was killed upon the track of the Peoria and Oquawka road, being struck by the freight train of the Illinois Central company.

Dated M. Woodsoh, Judge, presiding. This is a controversy between the creditors of Jesse- McKee, and creditors of Jerome McKee, Sr., both deceased. The appellants are creditors of Jesse McKee, and claim that the property belonged to him at the time of his death, and was subject to the lien of his creditors to pay his debts, before Jerome McKee, Sr., ever had any interest therein.

<p>1. Vendob’s lien—when retained. As a general rule, in equity, the vendor retains a lien upon the real estate sold by him, until the purchase-money is paid.</p> <p>3. This is always the case between the parties themselves, unless the lien has been expressly or impliedly released.</p> <p>3. Same—by what means the lien is lost; and when preserved as against second purchasers. Where there is an express agreement to waive the lien, or where the vendor takes other security, he thereby waives it.</p> <p>4. And the same effect is produced by an assignment of the notes given-for the purchase-money, as the assignee cannot enforce such a lien.</p> <p>5. And a person purchasing from the vendee without notice, or a knowledge of such facts as charge Mm with notice, of the former vendor’s lien, takes the property freed therefrom.</p> <p>6. Usually, in case of the sale of several tracts of land, and the vendee sells a portion to another person, even with notice, and receives the purchase-money, the vendor will be required to exhaust the property remaining in the hands of Ms vendee, before he can resort to the portion in the hands of the second purchaser.</p> <p>7. Or, where a person who only holds a bond for a conveyance from his vendor, sells a portion of the premises to another, and the first vendor conveys such portion to the second purchaser without objection, and without any notice to him that he would rely on Ms vendor’s lien as to the portion so conveyed, and permits such second purchaser to pay the money to Ms vendor, without objection, the first vendor will thereby be estopped from afterward asserting Ms lien for unpaid purchase-money, as against such second purchaser.</p> <p>8. It seems that where the vendee, who holds the land subj ect to Ms vendor's lien for unpaid purchase-money, sells all of the land to different purchasers, who are all in the same situation, having notice of the first vendor’s rights, the land must all be charged ratably with Ms lien.</p> <p>9. But where a purchaser from the first vendee of a portion of the premises holds in such manner that the first vendor’s Hen still exists as to Mm, and he purchased with knowledge that the residue of the premises had been sold to other parties discharged fijom that lien, the portion so purchased by Mm must bear the whole burden of the unpaid purchase-money due the first vendor.</p> <p>10. If, however, at the time such second purchaser, holding subject to the first vendor’s lien, acquired Ms title, there remained another portion of the premises also subject to that lien, these two portions being chargeable ratably with the entire lien, and the latter portion was afterward sold to another party to whom the first vendor released Ms lien, with notice of the sale to the former of these two purchasers, then the second purchaser, who still holds subject to the lien, will hold Ms portion discharged from the ratable proportion thereof wMcli had existed upon the other portion at the time he pm-chased, and wMch had been released on the subsequent sale of the same.</p> <p>11. Notice to purchasers—what constitutes. Where a purchaser of land from one who only holds a title bond therefor, takes a conveyance from the first vendor, he will be chargeable with notice of the lien of tho lattor for purchase-money, for if he did not have actual knowledge that the purchase-money was unpaid, he should have inqmred of the one from whom he received Ms deed, in relation to that fact.</p> <p>13. Or, if such second purchaser takes either the bond of Ms vendor for a conveyance or an assignment of the bond held by Ms vendor, he will be equally chargeable with notice of the first vendor’s lien for unpaid purchase-money, and for the same reasons.</p> <p>13. Parties m chancery—in suit to enforce vendor's lien. A party who held a bond for a conveyance of land, a part of the purchase-money remaining unpaid, sold a portion of the premises to another, and either assigned to Ms vendee the bond which he held, or executed to Mm Ms own bond for a deed, and the residue of the premises were sold by the same vendee to other parties: Meld, that in a suit by the first vendor to enforce his lien for purchase-money against the portion sold to the second purchaser first above mentioned, the first vendee was not a necessary party, although perhaps he would, not have been an improper party.</p> <p>14 But if any other of the second purchasers held their portions subject to the first vendor’s lien, they would have been necessary parties to such a bill; if, however, such other second purchasers held, discharged from the lien, it would not he necessary to make them parties.</p>

James Harriott, Judge, presiding. On the 1st of November, 1863, Mclntire came into the possession of a cow, by having taken her up as an estray, which he posted as such. Subsequently, and while the animal was still in his possession, it was run over and killed by a train of cars on the Peoria, Pekin and Jacksonville railroad.

<p>Appeal from the Circuit Court of Tazewell county; the Hon. S. L. Richmond, Judge, presiding.</p>

D. M. Woodson, Judge, presiding. This was an action in assumpsit, commenced in the Morgan Circuit Court, against the defendants, to recover the sum of $11,695.46, claimed by the appellants to be due to them, for money advanced to appellees, by appellants, as bankers, at different times.

<p>Appeal from the Circuit Court of Adams county; the Hon. Joseph Sibley, Judge, presiding.</p>

<p>1. Carriers—warehousemen—in which character a railroad company liable. The technical liability of a common carrier does not attach until the delivery to him of the property is complete.</p> <p>3. If, for example, the same person is common carrier and warehouseman, and he receives goods to be forwarded when he has orders from the owner, his liability in the mean time is that of a warehouseman and not that of a common carrier.</p> <p>3. So where A delivered to a railroad company, for transportation, a quantity of hay, which was placed on' platform cars; the next day, when the company was about to send it forward, A requested that it should not be taken away until he could first see the party to whom it was sold, which request was complied with, and the next day the hay was ignited by sparks from a passing locomotive, and a portion of it . burned. In an action by A against the company for the value of the hay thus burned: Held, that, from the moment A requested the hay to be detained, the liability of the company was that of a warehouseman only.</p> <p>4. Same—degree of care required of each. A common carrier is liable for all losses not arising from the "act of God" or the public enemy.</p> <p>5. A warehouseman must exercise reasonable care, but he is not an insurer against all losses except those arising from the “act of God” and the public enemy; he is only liable for losses which might have been guarded against by the exercise, on his part, of ordinary care and diligence.</p> <p>6. Same—what constitutes negligence. In this case, the mere leaving of the hay where the owner requested it might be left, and subject to no more hazards than the owner knew it must be subject to, was not a want of ordinary care on the part of the company.</p> <p>7. In such case, the railroad company were still bound to use all possible diligence to prevent the escape of fire from their trains in passing the loaded cars.</p> <p>.8. Burden of proof—as to question of care and diligence. In an action against a railroad company for injury done to property by reason of fire escaping from their locomotives, the burden of proving that the engine was properly guarded in that respect is upon the company.</p>

<p>Appeal from the Circuit Court of Schuyler County; the Hon. C. L. Higbee, Judge, presiding.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. Charles Emerson, Judge, presiding. These were actions on the case brought by the appellees, against the appellant, in the court below, for negligently and carelessly burning their warehouse, which was situated near the track of the appellant, and goods stored therein. The causes were tried by juries, who returned verdicts for the plaintiffs.

• Writ of Error to the Circuit Court of Fulton county; the Hon. C. L. Htgbee, Judge, presiding. This was an action of assumpsit brought by Southworth Shaw against Samuel Headley, to the September Term 1863, of the Fulton Circuit Court. The declaration contained two special counts and the common counts.

<p>Writ of Error to the Circuit Court of Bond county.</p> <p>On the 30th day of March, 1850, Samuel W. Hunter executed to Wesley A. Bilyeu and Finis Bilyeu a bond, as follows:</p> <p>“ Know all men by these presents: That I, Samuel W. Hunter, bind myself, my heirs, administrators and executors, firmly by these presents, to make or cause to be made unto Wesley A. Bilyeu and Finis Bilyeu, a good and sufficient title to certain lands described below, in the penal sum of three thousand dollars, in four years from this date, or when the. following notes shall have been paid, viz.: ” (describing a series of notes, and following with a description of the land sold.) “ The condition of the above obligation is such, that if the said S. W. Hunter shall comply with the above obligation, then said obligation will be void. Otherwise to remain in full force in law.</p> <p>“ Signed, sealed with my own hand, and delivered this 30th day of March, 1850.</p> <p>“ SAM’L W. HUNTER, [seal.]”</p> <p>On the 8th day of September, 1865, John B. Hunter, as administrator of Samuel W. Hunter, deceased, instituted suit in the court below against Wesley A. Bilyeu, on the following note:</p> <p>“ On or before the 30th day of March, A. D. 1855, for value received, we or either of us promise to pay S. W. Hunter, or order, the sum four hundred dollars, with eight per cent, interest from the 1st day of November, 1850, till paid.</p> <p>“ Witnesseth our hands and seals, this 30th day of March, 1850.</p> <p>“ WESLEY A. BILYEU, [seal.]</p> <p>“PINTS BILYEU. [seal.]”</p> <p>The defendant pleaded, among other things, that the note sued upon was the last of the series of notes described in the bond mentioned, and given for the purchase-money of the land; that all the others had been duly paid, and that the plaintiff had failed to tender a deed before bringing suit. The sufficiency of this plea is one of the questions presented in the case.</p>

Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. This was an action on the case commenced in the court below by Harlan P. Garish against the Illinois Central Railroad company. A trial resulted in a verdict for the plaintiff, and judgment was rendered thereon.

<p>1. Rent—whether it passes on a conveyance of the land, and of severing the rent from the reversion. A party selling leased or rented land may reserve the rent; so he may sell the rent, retaining the reversion. But if he makes no reservation of the rent and conveys the fee, the accruing rent goes to the grantee of the fee.</p> <p>2. If, however, the relation of landlord and tenant does not exist between the owner of the land and the person who cultivates, but they are mere tenants in common in the products of the land, the interest of the owner of the land in such products does not pass to his grantee, although he jhakes an unqualified grant of the land out of which they arise.</p> <p>3. Same—whether rent goes to the heir or to the administrator. Rent accruing out of land upon a lease granted by the owner in fee, and which does not become due till after the death of the lessor, is a chattel real, which descends to the heir as a part of the inheritafice, and does not go to the executor or administrator.</p> <p>4. Same—when rent becomes due. When there is no special custom shown as to the time when rent becomes due, nor any contract about the time, on general principles, the rent will not be due until the expiration of the term.</p> <p>5. In this case the tenant rented the land for the year commencing March 1, 1864, and ending March 1,1865, the rent to be one-third of the crops, payable in kind; the small grain rent, wheat, oats and barley, to be delivered to the landlord in the half bushel at the threshing-machine, as soon as threshed. Under the rule above laid down, the rent was regarded as not being due until the 1st day of March, 1865.</p> <p>6. Landlobd AND TENANT—where the relation exists—or, whether the parties are tenants in common of the crop. The relation of landlord and tenant may exist, although the rent is to be paid by a portion of the crop, in which case the parties are not tenants in' common of the crop raised.</p> <p>7. But in all cases, whether it is simply raising a crop on joint account or a tenancy, the rent payable in kind, depends upon the intention of the parties. See Blue v. Leathers, 15 Ill. 31. In this case the tenant rented for a year, the rent to be one-third of the crop payable in kind, the small grain rent, wheat, oats and barley, to be delivered to the landlord in the half bushel at the threshing machine, as soon as threshed. The exclusive possession of the farm in the tenant, for a series of years previously, a rent agreed upon, and the non-residence of the owner, it was held, all conspired to show the relation of landlord and tenant, and not a tenancy in common in the -crop.</p> <p>8. Rent payable in kind—ownership of the crop. Where rent is reserved, payable in a part of the crop to be raised on the land, the tenant remains the exclusive owner of the crop until the stipulated rent is set off to the landlord.</p> <p>9. Judicial notice. Of facts of unvarying occurrence, courts must take judicial notice, but not of the vicissitudes of climate or of the seasons.</p> <p>10. So courts will not take judicial notice of the time when crops of wheat, oats and barley mature, because the time for those crops to mature varies greatly in the different parts of the State, and even in the same locality there is a difference.</p>

<p>1. Jurisdiction in chancery—where there is a defense at law. Where a party has a defense which is available at law, and has had an opportunity to insist upon his rights in a court of law, and in a suit directly involving them,1 and has failed to do so, he is barred by his own laches from asking the question to be re-opened on the chancery side of the court.</p> <p>3. Same—in what manner and, at what time to assert the want of jurisdiction. The objection to the jurisdiction of a court of chancery, that the party has his remedy at law, may be made availing, even though it is first made on the' hearing, where it appears that he has had an opportunity to insist upon his rights in a court of law, and in a suit directly involving them, and has neglected to do so.</p> <p>3. Vendor and purchaser—rights of a purchaser who pays off an incumbrance. Where a purchaser of land redeems the same from a sale on foreclosure of a mortgage given by his vendor prior to his purchase, when it was the duty of the vendor to have made the redemption, the purchaser has a' right to have the amount so paid applied as a payment on his notes given for. the purchase-money.</p> <p>4. Assignee with notice—subject to what defenses. Where a party receives the assignment of a note before maturity, with notice of the maker’s rights in respect thereto, he will hold the note subject to whatever' rights of set-off existed as against the payee.</p> <p>5. Notice—what constitutes. Where the assignee of a note, at the time of the assignment, requests and receives as security from the assignor a conveyance of land, for the purchase-money of which the note was given, with a provision in the deed that the assignee is to comply with the terms of the contract of, sale to the prior purchaser, the assignee will be held to have actual notice of the character of the note.</p> <p>6. The sale of the note and the deed of the land to the assignee being all one transaction, he must also be held to constructive notice in regard to the note of whatever the records brought to his knowledge in regard to the title of the land.</p> <p>7. So, where the prior purchaser had redeemed the land from a sale on foreclosure of a mortgage given by Ms vendor before Ms purchase, and the certificate of redemption was recorded at the time of the assignment of the note, the assignee would hold the note subject to whatever rights of set-off, growing out of the redemption, existed in favor of the maker against the assignor.</p> <p>8. Specific performance—when granted. A purchaser of land gave Ms notes for the purchase-money, and afterward redeemed the land from a sale on foreclosure of a mortgage given by Ms vendor, and wMch it was the duty of the latter to have satisfied. Subsequently, the vendor assigned the notes wMch were unpaid, including the last of the series, to a party who had notice of all the maker’s rights in respect thereto. The assignee obtained a judgment at law upon a portion of the notes, the maker neglectmg to interpose any defense to them. On the bill in chancery filed by the maker to enjoin the judgment at law, and for a specific performance, it was held, that, having neglected to insist upon Ms right of set-off, arising out of Ms redemption from the mortgage sale, in the suit at law, he was barred from setting it up in eqmty; but as to the last note in the series, that, not being included in the judgment, the maker had the right, upon offering to bring into court the amount due on the judgment, to have that note surrendered and canceled, it being paid by means of the redemption, and to a deed to the premises, after paying the judgment.</p> <p>9. Parties in chancery—hill for specific performance. In such case, although the assignee of the notes also took a conveyance of the land for the purchase-money of wMch the notes were given, as security, and therein agreed to comply with the terms of the bond given by the prior vendor for a conveyance to his vendee, yet in the smt in chancery for a specific performance, the vendor should be made a party.</p>

• Appeal from the Circuit Court of Clinton county; the Hon. Silas L. Bryan, Judge, presiding. In 1841, James Duncan conveyed certain lands in Madison county to Isaac A. Letcher; and, in 1845, Letcher conveyed the same land to John Duncan, who occupied the premises until his death, which occurred on the 30th of January, 1848. Letters of administration were granted on John Duncan’s estate to William Hadley..

<p>1. Administrator—general powers of. An administrator has the power to apply for an order of court to sell the real estate of the intestate, but he has no power to involve the estate in litigation, under a pretense of removing an incumbrance, with a view to a better price when it shall be offered for sale. He must take the estate as he finds it, and, if incumbered, sell subject to such incumbrance.</p> <p>3. Parties—who may bring suit to remove cloud from estate of-an intestate Under our statute, the estate, both real and personal, of an intestate descends to his children, if any, or to his heirs, whoever they may be, and they alone, as such representatives, have power to bring suits regarding the title to land, to remove a cloud, or any incumbrance upon it.</p> <p>3. Administrator—power respecting lands. The estate of an intestate, being under the full power and control of the heirs, an administrator has no power, nor is he bound, to protect the realty in any manner, not even to the extent of paying the taxes assessed against it. The cases of Walbridge v. Day et al., 31 Il1. 379; Smith et al. v. McConnel et al., 17 id. 135, and Stone et al. v. Wood, 15 id. 177, discussed and affirmed.</p> <p>4. Same—how to remove an incumbrance upon land, when the administrator has obtained an order of sale. If it is desirable for the administrator to expose the lands of his intestate, which are incumbered by mortgage, to sale for the payment of debts, the course to pursue is for the administrator to obtain an order to sell it, and to prevent the anticipated sacrifice, the heir may enjoin the sale until he can make an effort to set aside the mortgage.</p>

<p>Writ oe Error to the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.</p> <p>The opinion of the Court contains a sufficient statement of the case.</p>

Writ or Error to the Circuit Court of Henard county; the Hon. James Harriott, Judge, presiding.

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

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.</p>

<p>.Appeal from the Circuit Court of Madison county; the Hon. Joseph Gillespie, Judge, presiding.</p>

Writ of Error to the Circuit Court of Coles County; the Hon. Oliver L. Davis, Judge, presiding. This was an action brought in the court below by Elisha Linder and Daniel W. Linder, against the St. Louis, Alton and Terre Haute Railroad company, to recover the value of a lot of stock belonging to the plaintiffs, which had got upon the track of the railroad and were run over and killed by one of the company’s trains.

<p>1. Appeal noiro in forcible detainer—may cover accruing rents. On an appeal by the defendant from the judgment of a justice of the peace in an action of forcible detainer brought by a purchaser under a decree, under the act of 1861, it is proper that the appeal bond should cover accruing rents.</p> <p>2. Rest—how recoverable in such case. The act of 1861 gives the purchaser in such case the remedy by action of debt or assumpsit for use and occupation, but this does not exclude the recovery of the rent by action of debt on the appeal bond when "it contains a condition embracing the accruing rents. The purchaser has a double remedy.</p> <p>3. Forcible detainer—by whom, the action may be maintained, under act of 1861. The remedy hy this action, to recover the possession of land sold under a decree, is given to the purchaser of the premises hy the amendatory act of 1861.</p>

<p>1. Statute of frauds—paro? sale of land. Where, upon a sale of lands, the consideration was fully paid and the possession given to the purchaser, this is a sufficient performance to take the case out of the statute of frauds, although there was no written evidence of the sale.</p> <p>2. Hence, where A and F made an exchange of lands, each going at once into the possession of the tract he traded for, A receiving title papers for his land, and F receiving no title papers for his land, a court of equity would compel A to make a transfer of the title to F.</p> <p>8. Possession—effect of when wrongful. In such a case, where, after F had been eighteen months in possession, he left the country for several years, the fact that, after his departure, A once more obtained possession of the land, by inducing the family of F to leave it, did not change the right of F to have a conveyance of the land made to him on his return.</p> <p>4. Receipt—effect of when general. In such a case, where A took possession of $500 worth of the personal property of F as well as of the land, and two years afterward there was a general receipt from F to A for $240, “in full of all demands and claims ” to date, such a receipt was held to apply only to the claim growing out of the personal property.</p> <p>5. Receipt—required to release an equitable title. In such a case, the receipt being in these words: “ September 17th, 1857. Received of Benjamin Alien two hundred and forty dollars, in full of all demands and claims due Jacob Fitzsimmons up to this date. (Signed) Charles Fitzsimmons, attorney for Jacob Fitzsimmons.” Seld, that its language was not appropriate to the purpose of releasing a complete equitable title to a tract of land, and there was a personal indebtedness, to which it did properly apply.</p> <p>6. Heies—may be compelled to convey and to account. And, where a bill was filed to compel a conveyance, upon the facts above recited, and praying an account of rents and profits, pending which bill the vendor, A died, his heirs were made parties, and were compelled to convey the land, and account for the rents and profits from the time their ancestor last went into possession.</p>

<p>Agbeed case from the Circuit Court of St. Clair county.</p>

<p>1. Jurisdiction op defendant in chancery—how acquired. By our practice in chancery, prayer for process against a person, and service of process upon Mm, give the court jurisdiction of that person, whether or not there be a formal prayer that he be made a defendant.</p> <p>2. The homestead right—when it exists. The right to a homestead does not consist in purchasing property for a homestead, but in actually occupying it as such. Hence, when a bill for a forclosure alleged that the premises were not occupied as a homestead at the time of the execution of the mortgage, and the answer did not allege an occupation, but did allege that the complainant knew, at the time of such execution, that it was purchased as a homestead, the answer was not responsive to the hill, and there was no homestead.</p> <p>3. Occupation—under the homestead law, and what will constitute. Where a tract of land was leased to a tenant, who raised a crop on it, hut did not occupy the buildings wMch were upon it, while the owner and family lived on another and distinct tract of land, owned by them, of the value of sixteen hundred dollars, there is no such occupation of the tract so leased, as would defeat a mortgage executed at that time, by reason of the homestead law.</p> <p>4. Lot op ground and the buildings thereon—what constitutes. Where a mortgage on the north twenty acres of an “ eighty,” was executed by parties whose homestead where they then resided, and which was worth sixteen hundred dollars, was the south forty acres of the same “ eighty,” and the twenty acres lying between these two tracts had been previously sold by said parties, and deeded away, there the continuity between the forty and the twenty was broken, and it isolated the south end of the “ eighty,” making that “ the lot of ground and the buildings thereon,” which was the homestead.</p> <p>5. Owner OF homestead—may he the wife. Where the title to the “ lot of ground, and the buildings thereon ” is in the wife, and she, with her husband and her family, reside thereon, that lot is the homestead.</p> <p>6. One homestead foe each family. The law never contemplated that a head of a family can have two or more homesteads, one being his place of actual residence, the other being occupied by a tenant.</p> <p>7. Purchase-money—no right of homestead exists against. Where a mortgage on land was given to secure the purchase price, and the mortgagor intended, at the time, to make it a homestead, and afterward did actually remove to it, these facts did not make it the homestead of the mortgagor, so as to defeat the mortgage.</p> <p>8. Acknowledgment by a married woman—what is sufficient. WTiere a married woman makes a deed to property, the fee of which is in her, and the improvements thereon belong to her husband, who joins in the same deed, and before the officer acknowledges that she executed the deed, this is substantially acknowledging it as her act and deed, and, although only her dower right was in terms released, still it is sufficient to pass the fee.</p> <p>9. Same—is within the statute. Under the law of 1853, commonly called the confirmatory law (see Laws 1853, p. 89), which provides that no informality or omission in setting forth the particulars of the acknowledgment shall make the same invalid, where it appears, in substance, from the certificate, that the parties executed the deed voluntarily; and, in case of a married woman, that she knew the contents of the deed, and had been examined separate from her husband, an acknowledgment like that above mentioned is sufficient.</p>

<p>Appeal from, the Circuit Court of Madison county; the Hon. Joseph Gillespie, Judge, presiding.</p>

Writ of Error from the Circuit Court of Clark county; the Hon. Charles H. Constable, Judge, presiding. This was an indictment against the plaintiffs in error, for robbery, found at the March Term, A. D. 1865.

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

This was an action of ejectment commenced in the court, below by John B. H. Fulton against Onias C. Skinner, to recover the north-east quarter of section twenty-six, in township four, north of range seven west, situate in Hancock county. The plaintiff gave in evidence the patent for the land from the United States to John Stephens, bearing date May 28,, 1818. He then offered in evidence a deed from John Stephens to Bobert Fulton, dated December 1, 1818.

<p>1. Delivery of county bonds upon condition—upon whom, the condition is binding. Where the bonds of a county, issued upon a subscription of the county to the stock of a railroad company, were delivered to the bankers of the company, upon an understanding, prior to their being issued, between the members of the County Court who issued the bonds and the president of the company, that they were to be applied in payment for work done upon the road in that county, and not otherwise, such understanding is binding upon all persons affectecL with notice of what it was, and, as to such persons, the bonds could be applied to no other purpose than that indicated.</p> <p>3. Whether the deposit of the bonds with the banker of the company was with or without any notice or condition, was immaterial. No matter how absolute the delivery may have been in form, it was nevertheless a qualified delivery, and subject to the understanding between the county and the president of the company, as against all persons chargeable with notice.</p> <p>3. Same—in what form the agreement may be had. It is not essential to the binding force of such an understanding that it should be embraced in a formal contract. In this case the County Court, as a condition precedent -to the issuing of the bonds, required a stipulation as to the manner of their application, and the president of the company thereupon filed in the office of the clerk of that court his certificate, stating that the road in that county was under contract, and that in this contract it was provided that the bonds should be used for work in that county, and not elsewhere. This was treated by all parties ás furnishing the requisite security that the bonds would only be used for that purpose, and thereupon they were ordered to be issued. This certificate was regarded as a part of the transaction, and, viewed in the light of surrounding circumstances, showed a clear understanding as to the use which should bo made of the bonds.</p> <p>4. Same—as to the o-uthority of the president of the company. Nor, is the binding effect of such an understanding, so far as the president of the company is concerned, dependent upon his authority to enter into it. It matters not whether or not he transgressed his authority as president of the road, it is still conclusive upon Ms rights. So that, where the company gave to him an order on the banker with whom the bonds were deposited for a certain portion of them, in payment of a sum found due him from the company, it was held that the bonds could not be thus diverted from the purpose for which they were issued.</p> <p>5. Same—rights of the contractors. And, so with the parties who had entered into a contract to construct the road, in which it was stipulated that the bonds should be payable to them only for work done in the county which issued them, that stipulation was at least sufficient to put the contractors on inquiry as to the power of the company to dispose of the bonds in any other way than that provided for in their contract.</p> <p>6. So that, where such contractors accepted an order from the company for a portion of such bonds, when no work had been done upon the road in that county, they knew they were not entitled to them, and acquired no right to have them thus appropriated.</p> <p>7. Same—rights of assignee of such order. A party to whom such contractors assigned such order would simply stand in the shoes of the contractors themselves, as to the purpose to which the bonds should be applied.</p> <p>8. Same—waiver of the condition. In such case, the company, as one of the contracting parties, could not waive the provision in the contract, it being inserted for the benefit of the county, whose bonds the provision had reference to.</p> <p>9. Evidence as to the character of the delivery. The fact that the county voted as a stockholder of the company in the election of directors, and paid two years’ interest on the bonds after their deposit, is not to be taken as proof that the delivery of the bonds was absolute, as against the other facts mentioned, showing it to have been only a qualified delivery. Persons having knowledge of the facts had no right to regard such acts on the part of the county as a waiver of the condition upon which the bonds were issued.</p> <p>10. Eights of creditors—not having notice of the condition. Creditors of the company, who probably gave credit to the company in consequence of this absolute order of the County Court in regard to the issuing of the bonds to the company, and having no notice of the condition upon which they were issued, would not be bound by such condition, but, having exhausted their legal remedies, would be entitled to have the bgmds, as equitable assets of the company, applied in satisfaction of their claims.</p> <p>11. Interlocutory decree—what constitutes, and its effect. Where a court, pending a suit involving the question as to the purpose for which certain bonds shall be applied, orders the bonds to be brought into court and to be placed in the hands of a designated person, to await the further order of the court, and that the several claimants interplead, such order is not to be regarded as a final decree settling the rights of any of the parties, but simply as an interlocutory order determining nothing.</p>

<p>1. Amendment of appeal bond—on appeals from justices. Under the second section of the act of 9th of February, 1853, concerning appeals from justices of the peace to the Circuit Court, the party appealing has the right to amend his appeal bond, if it be found defective, and it is error to deny such right of amendment, and to dismiss the appeal for want of a sufficient bond.</p> <p>3. This right of amendment extends to appeals from judgments of justices for a fine or penalty, and embraces the case of a prosecution under the act of 1861, for selling spirituous or malt liquors within one mile of Shurtliff College.</p>

Clair county. This was a suit in chancery instituted in the court below, by John Wakefield and several others, partners, and with Otis Haven, composing a firm under the name and style of the “Summerfield Building company,” against the same Otis Haven and Charles W. White, partners, composing^ another firm, engaged in the business of raising broom-corn, and the manufacture of brooms therefrom.

<p>Appeal from the Circuit Court of Mason county; the Hon. James Harriott, Judge, presiding.</p>

This was a suit in chancery, instituted in the court below on the 11th day of October, 1860, by Cadwalader Bull, since deceased, against Hugh Maher and Edward Kelly, to dissolve a copartnership then existing between them, and to wind up its affairs. On the 26th day of October the defendants filed a joint and several answer, under oath, to which there was a replication on the 5th of December following.

On the 30th day of January, 1861, Hiram P. Moses exhibited his bill in chancery, in the court below, against Eoswell Carter, Seth Wadhams, J. Young Seammon, and another.

Welt of Ebbob to the Superior Court of Chicago; Hon. Joseph E. Gaby, Judge, presiding. This is an action of ejectment brought to recover possession of lot five, block eighteen, in Johnson, Roberts & Storrs’ addition to Chicago. Both parties claim under Samuel B. Pomeroy. The defendants in error trace title from two judgments against Samuel B. Pomeroy and Eleazar L. Pomeroy, in United States Court, which became a lien on the land the 28th of September, 1857.

Writ op Eeeoe to the Superior Court of Chicago. This was an action of ejectment, brought by Thomas P. Wight, to recover from August Wallbaum and others his interest in certain real estate in Cook county. He claimed to own the same as an heir and devisee of his father, John F. Wight, who died at Erie, Pennsylvafiia, 3d September, 1844, and was the owner thereof at the time of his death.

Madison E. Hollister, Judge, presiding. This was an action of assumpsit commenced in the court below by Thompson against the Board of Supervisors of Bureau county. The declaration contained the common count for money had and received. The suit was instituted in 1862, to recover back the money paid by the plaintiff upon the purchase of certain swamp lands sold by the county under the then existing laws on that subject.

E. S. Williams, Judge, presiding. This was an action of covenant, brought by the administratrix of the estate of David Rattray against Christopher C. Robinson, upon the following agreement: “Articles of agreement made and entered into between C. 0.

Ebastus S. Williams, Judge, presiding. This was an action of assumpsit brought to the September Term, 1863, of the Circuit Court of Cook county, by B. P. Derrickson against Thomas S. Dickerson. It was founded upon the following instrument: , “ In consideration of assignment of judgment against George Kimball to T. S. Dickerson this day, and rendering of bill and notes to me, I do hereby agree, in case George Kimball does not pay to It.

M. Williamson, Judge, presiding. This is an action of forcible detainer, commenced before a justice of the peace in Peoria county, by the trustees of schools, township eight, north of range eight east, in that county, against Patrick W. Dunne. On appeal to the Circuit Court, a trial resulted in a verdict and judgment for the plaintiffs. The defendant brings the cause to this court by appeal.

This was a bill in chancery, filed at the Term, 1864, by Lemuel Milk and Franklin Howard, survivors of William Howard, deceased, as complainants, against Foster Moore, as defendant, to foreclose a mortgage given by the said defendant, on the 11th of June, 1851, to secure the performance of a contract, by which the said defendant took 424 head of sheep of the said complainants, to keep for the term of three years, and to deliver 634-J- pounds of wool each year during said…

Wbit of Ebbob to the Circuit Court of McHenry county; the Hon. T. D. Mubphy, Judge, presiding. This was an action of ejectment commenced in the court below, on the 19th day of December, 1863, by George Bliss, against Samuel Clark. A trial resulted in a finding and judgment for the defendant. The plaintiff thereupon sued out this writ of error. The proofs in the case were stipulated to be as follows, on the part of the plaintiff: 1.

<p>Appeal from the Circuit Court of La Salle county; the Hon. William Chumasebo, Judge, presiding.</p>

Samuel L. Richmond, Judge, presiding. This was an action of ejectment brought by Elisha L. Mills, Cephas Mills, Cyrus M. Mills, Mary Turner (late Mary Mills), Allen Turner (her husband), and Hannah Mills, against the tenants of the appellant, and which he was let in to defend, to the June Term, 1863, of the Marshall County Circuit Court, for the H. W. J of sec. 36, T. 30 H. R., 1 W., 35 P. M. In answer to a rule, obtained at Chambers upon the attorney for the plaintiffs to…

Writ of Error to the Oircuit Court of McLean county. This was a proceeding instituted by Greenebaum & Sons in the court below, to the September Term, 1861, against the Board of Education of the State of Illinois, to enforce a mechanic’s lien.