Volume 4 — Illinois Appellate Court Reports

<p>Appeal from the Superior Court of Cook county; the Hon. J osbph E. Cary, J udge, presiding.</p>

<p>Affidavit of merits—Sufficiency.—The same question was presented as in the preceding case, and the opinion here refers to that case.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

<p>1. Voluntary conveyance—Not fraudulent.—The mere fact of an existing indebtedness does not render a voluntary conveyance absolutely fraudulent as against existing creditors, if there is no express intention on the part of the grantor to delay or defraud them in the collection of their debts.</p> <p>2. Proof required of plaintiff.—To impeach such a conveyance, the complainant must aver and prove that at the time of the conveyance he was a creditor, and that the grantor was then insolvent, or such facts and circumstances as will authorize a court or jury to presume insolvency.</p> <p>8. Gift to wife.—No creditor without a lien, has any right to complain that a debtor is giving property to his wife or children, unless he can establish the fact that he has not retained enough to satisfy existing indebtedness.</p>

<p>Injury to workman—Fellow-servant—Classification of employment.—Where the service of workmen is divided into different departments, and each department committed to distinct bodies of workmen, an injury to a servant of one class resulting from the negligence of a servant of the other class, will entitle the servant injured to invoke the doctrine of respondeat superior. But where the different classes of work are committed to the whole body of workmen without regard to its character, they are fellow servants, and the employer is not liable for an injury to one through the negligence of another. Whether in any given case the two species of service form two departments or one, is a question of fact for the jury.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gt. Rogers, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. S. M. Moose, Judge, presiding.</p>

<p>Criminal law—Adulteration of milk.—Under an indictment for adulterating milk, an instruction which tells the jury that if they believe, etc , that the defendant sold a quantity of milk to A, and delivered it to his servant, who delivered it to A in the same condition in which he received it from the defendant, and that it was then found by satisfactory tests that the milk was adulterated with water, they should find the defendant guilty, is erroneous. The milk may have been adulterated when received from the defendant, and still he may not have done it, or had any knowledge of it. It does not necessarily follow that because the milk was adulterated when delivered by defendant, that he did it.</p>

<p>Partnership.—Losses sustained to stock in trade or partnership assets purchased with the money of the firm, must be borne by the firm.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

<p>Settlement—Mistake—Joint liability.—A, being in the West, purchasing butter for shipment to B, in Chicago, and meeting with C, who was in the same business, they arranged that the aggregate of their purchases should be divided between them and pa d for equally, and shipped, which was done. Afterwards, C, thinking there was a mistake in the settlement, brought suit against A and B, jointly, for the amount claimed to be overpaid. Held, that, if A was the agent of B, he was not liable to C upon any implied contract, because he had disclosed his principal; and if he was not such agent, then B was not liable, because there was no privity between him and C, and that a verdict against A and B, jointly, was error.</p>

<p>Appeal from, the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.</p>

<p>1. Insurance—Conditions in policy—Breach.—An insurance policy contained a condition that “if the assured shall have or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, * * * the policy shall be void." Held, that the obtaining of other insurance upon the property by the assured without such consent was a breach of the contract and rendered the policy void.</p> <p>2. Property on leased ground.—A failure to inform the company that the property insured stood upon leased ground, there being a- condition in the policy requiring such information to be given, avoided the policy, at least to the extent of the building insured. "Whether it rendered the policy void as to the insurance upon the contents of the building, the court does not determine.</p> <p>3. Broker — Company.not chargeable with notice to him of defects.—"Where the assured employed a broker, who represented no particular company but merely solicited applications and procured them to be placed in different companies, to obtain his insurance, such broker is the agent of the assured, and the company making the insurance is not chargeable with tacts affecting the risk which may have come to the knowledge of such broker, but were not communicated to the agent of the company.</p>

<p>1. Judgment—Death of one plaintiff before suit.—A judgment is not void by reason of the death of one of the parties named as plaintiff, before the commencement of the suit. Such fact can only be taken advantage of by plea in abatement.</p> <p>2. Practice—Amending record—Vacating judgment.—A record may be amended at a term subsequent to rendering judgment, upon due notice and proper proof; but a court has no power to vacate a judgment actually and finally, without fraud, entered at a previous term.</p> <p>3. Material amendments not allowed.—A court has no power, upon motion, after a term has passed, to change its judgment or the record thereof by striking out the name of a party plaintiff. Such an amendment is not within the statute of jeofails.</p>

<p>Decree against evidence.—This was an action upon an appeal bond to Supreme Court, given on appeal from a decree in proceedings for mechanic’s lien. The only question in this suit was whether a claim for material furnished was included in the amount of the original decree in the mechanic’s lien suit, and this court finding the evidence strongly preponderating against the theory that it was included; the decree is reversed.</p>

<p>Finding against the evidence.—This court being of the opinion that the finding of the court below was against the evidence, -the- decree' is reversed.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding.</p>

<p>Error to the Circuit Court of Madison county; the Hon. W. H. Snyder, Judge, presiding.</p>

<p>Error to the Circuit Court of Johnson county; the Hon. John Dougherty, Judge, presiding.</p>

<p>1. Statement—Authoeity of attoeney—Instbüction.—Suit was brought on an injunction bond, to which defendant pleaded that he had dismissed his suit for injunction in accordance with an agreement with plaintiffs’ attorneys that they would dismiss a similar suit on their part, and no liability should he incuired on either bond; and that a judgment had been rendered against him as garnishee in respect to the matter involved in the injunction suit. Held, that an instruction that if the jury find that before the dismissal of the suits the judgment had been assigned, then such agreement to dismiss would not bind the assignee, was erroneous, as the attorney who made the agreement to dismiss was also attorney for the assignee in making the assignment, and the question of his authority to do so was for the jury to determine.</p> <p>2. Held, that an instruction that the defendant is liable notwithstanding the garnishment, if he had notice of the assignment before service of garnishee process, was erroneous, as tending to lead the jury to suppose that in such a case defendant would be liable regardless of the other issues in the case.</p>

<p>Error to the Circuit Court of Madison county; the Hon. Geo.W. Wall, Judge, presiding.</p>

<p>1. Probate law—Sale op real estate.—In a proceeding by an administrator for the sale of real estate to pay debts, if Ihe county court had jurisdiction of the person and of the subject matter, it is not material how erroneously it decided upon the facts; the order for sale cannot for that reason he questioned in a collateral proceeding.</p> <p>2. Misnomer.—The fact that in such a proceeding a minor heir was wrongly named in the petition and order, cannot be availed of in this proceeding, especially when it appears that she was rightly named in the summons, and a guardian ad litem was appointed for her.</p> <p>3. The objection that unjust claims were allowed, upon which an order of sale was made, cannot be raised in a proceeding to set aside the sale, as against the rights of bona fide purchasers at such sale, though it might have been good if made in the County Court, or on appeal to the Circuit Court.</p> <p>4. Homestead—Abandonment by widow.—Upon the death of the husband, the widow becomes the head of the family, and may abandon 01 release the homestead, and thereby produce the same results upon the rights of the children as though the release or abandonment had occurred while they were under the protection of the father.</p>

<p>Foreclosure ce mortgage—Amount due.—On a proceeding to foreclose a mortgage, the master, in reporting the amount due, included the amount of another note held by the complainant against the mortgagors, but not included or described in the mortgage deed. There was no evidence of an intention of the mortgagors to secure the last -mentioned note by the mortgage. Held, that the court erred in decreeing a foreclosure for the amount of both notes.</p>

<p>Motion for new trial.—In this cause a motion for re-hearing was made, based upon the affidavit of defendant’s attorneys, setting forth that the testimony on part of the defendants was in the form of depositions, which were not on file at the time the cause was heard, and showing what the testimony was, and also that there was an understanding between the attorneys for both parties, that owing to a conflict as to the time for holding court in Bond county, the cause would not be tried. Held, the testimony stated in the affidavit was material and in the absence of any sworn contradiction of the facts in the affidavit as to the understanding between the attorneys, the court should have granted a re-hearing.</p>

<p>1. Lien fob materials.—In a proceeding by a sub-contractor to obtain a lien under the statute, against a railroad company for work and materials furnished according to an agreement with the original contractor, it must appear that all the steps required by the statute have been taken.</p> <p>2. Time for filing petition.—The statute provides that the lien shall continue for three months from the time of performance of the work or furnishing the material, and suit to enforce such lien must he begun within the time limited.</p> <p>3. Notice.—It is not necessary that the notice required by the statute should be accompanied with a copy of the contract between the original contractor and the railroad company. The contract mentioned in the statute refers to the one between the sub-contractor and his principal.</p> <p>4. Form of decree.—The decree should be against the railroad and the original contractors, and the lien should only be enforced, and the property of the company sold, in default of payment, within a day to be fixed by the court.</p>

<p>Appeal from the Circuit Court of Johnson county; the Hon. John Dougherty, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Williamson county; the lion. M. C. Crawford, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Washington comity; the Hon. Amos Watts, Judge, presiding.</p>

<p>Certiorari.—The petition for certiorari alleged as reasons why an appeal from, the justice was not taken in the ordinary way; first, that on the trial where the petitioner was summoned as garnishee he was discharged and did not know that a judgment had been rendered against him till too late to take an appeal; and second, that by the false and fraudulent representations of the plaintiff, the petitioner was led to believe that the judgment would not be enforced against him until too late to take an appeal, etc. Held, that the reasons assigned were wholly inconsistent with each other, and that as pleadings must be taken most strongly against the pleader, the second reason assigned would be adopted as most unfavorable to petitioner; that while the first reason assigned was sufficient to authorize the granting of the writ, the second did not show sufficient excuse for not prosecuting an appeal in the ordinary way.</p>

<p>Appeal from the Circuit Court of St. Clair county; the lion. Amos Watts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Richland county; the Hon. James C. Allen, Judge, presiding.</p>

<p>Practice — Failure of appellee to file brief—Reversal pro forma.—Where the appellee fails to file a brief in accordance with the rules of this court, the judgment or decree will be reversed pro forma, unless the court on examination of the record should deem it proper to decide the case on its merits.</p>

<p>Error to the Circuit Court of LaSalle county; the Hon. E. S. Leland, Judge, presiding.</p>

<p>Error to the Circuit Court of Woodford county; the Hon. John Burns, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. A. A. Smith, Judge, presiding.</p>

<p>Homestead—Definition—How divested.—The homestead right of the wife cannot be divested except by her consent, or in the manner pointed out in the statute. It is the right to live upon, occupy and enjoy the premises as a home, and is paramount to any right or interest that the husband can transfer to a purchaser. So, where a purchaser of premises received a deed from the husband, but without the release of homestead by the wife, filed a bill in chancery, asking for an assignment of the homestead in such premises, and the court appointed commissioners, who reported that the premises were not susceptible of division, whereupon the court decreed that on the complainant depositing $1,000 in court for the benefit of the wife, she should convey to him her homestead right, held, that the wife could not, in this manner, be divested of her homestead right.</p>

<p>1. Practice—Oral charge to jury—Exceptions.—Where the court, by agreement of parties, charged the jury orally upon the whole case, if a party would object to portions of the charge, he should make his objections specific, and not rely upon a general exception.</p> <p>2. Negligence—Cattle running at large.—The court cannot say to the jury as a matter of law, that permitting cattle to run at large is negligence which contributed to their injury by the railroad, as it depends upon all the circumstances whether it was negligence and whether it contributed to the injury.</p>

<p>Certiorari—Return.—When a writ of certiorari is issued and served, it is the duty of the lower court to make out and transmit to the court issuing such writ, a complete transcript of all the proceedings before it. This transcript becomes the return to. the writ, and by an inspection of it alone the rights of the parties are to be determined. The court cannot try the merits of the case upon the petition, nor can an issue of fact be made upon the allegations therein. The return to the writ should appear in the record on appeal or writ of error to this court, and there being nothing in the record showing that return was made to the writ, the judgment is reversed.</p>

<p>Error to the Circuit Court of Iroquois county; the Hon. Franklin Blades; Judge, presiding.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. J. W. Cochran, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah MuBoberts, Judge, presiding.</p>

<p>■ Appeal from the Circuit Court of Carroll county; the Hon. John Y. Eustace, Judge, presiding.</p>

<p>1. Promissory note—Threats—Want of consideration.—To an action on two notes the defendant pleaded no consideration, and that the notes were obtained under threats to contest the last will of his father, under which defendant was principal legatee, if they were not given. The court is of opinion, from a consideration of the case, that the evidence fails to establish the defense set up, and holds the notes to have been given for a valuable consideration.</p> <p>2. Settlement of disputed claim—Limitation of time to contest will.—The evidence going to show that shortly after the death of the testator, appellee made a settlement with appellant of her claim to her father’s estate, who agreed to give her a certain sum if she would not contest the will, and after the lapse of five years, gave his notes for such sum, the fact that the time allowed to contest the will had passed before the notes were given, does not affect their consideration, the consideration being the amount promised under the settlement, and not the settlement of the will controversy.</p> <p>3. Acceptance of legacy not an "estoppel.—An instruction that if a person accepts a legacy under a will, he is estopped from claiming the will invalid, was erroneous in this case, the evidence tending to show that the legacy was accepted and receipt given therefor with the distinct understanding that it should not be considered a release of appellant’s claim under the settlement, but only to enable appellee to settle the estate.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. H. H. Cody, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Fraeklie Blades, Judge, presiding.</p>

<p>. I. Practice—Exceptions.—Exceptions must be taken and preserved in the court below to the admission or refusal of offered testimony and to the giving or refusing' of instructions, or this court will not consider errors assigned on the action of the trial judge in that respect.</p> <p>2. Evidence—Alteration op instrument.—Objection was made to the introduction of an insurance policy as evidence on the ground that it appeared to have been altered. The appellee testified that it was changed by an agent of the company. This was sufficient prima facie to permit the policy to go to the jury.</p>

<p>Appeal from the Circuit Court of JoDaviess county; the lion. John Y. Eustace, Judge, presiding.</p>

<p>Practice—Special master.—In appointing a special master to execute a decree, the Court should designate who said master should be; otherwise it will not appear that any one can exercise the power.</p>

<p>1. - Master and servant—Contract for services.—Where a servant quits his employment of his own accord, or by mutual consent, he can recover only at the agreed monthly rate for the time he was actually employed. If he seeks to recover for the full contract period on the ground that he was discharged from employment, he should declare specially on the contract-alleging a breach.</p> <p>2. -Plea in abatement—Waiver bt pleading over.—Where a party after demurrer overruled to a replication to a plea in abatement, pleads the general issue and goes to trial upon the merits, he will be held to have waived his plea in abatement. '</p>

<p>1. School law—Formation of new districts—Requisite number of petitioners.—The statute providing that new school districts may be formed by taking portions of one or more districts already established, contemplates that the petition therefor shall be signed by two-thirds of all the voters residing in the territory of the proposed district, without reference to the number in the portion taken from any particular district. It does not require that there shall be five families residing in each particular portion taken.</p> <p>2. Costs.—The proceeding was for a mandamus, to compel the school trustees to form a new district, and the court below awarded the writ, and entered judgment against the trustees personally for costs. Held, error; the judgment for costs should have been against them as trustees.</p>

<p>1. Common field—Stock grazing.—Where a common field is established by agreement of several, and used for pasture, there can be no liability if the stock of one range on the land of another in such field.</p> <p>2. Tenants in common—Holding over.—Appellant hired of appellee his right to the pasture for the year 1876. In 1877, appellant put into the common pasture only his proportion of cattle. Held, that although appellant was the tenant of appellee in 1876, there could be. no holding over in 1877, unless he appropriated appellee’s rights and privileges in the pasture for the latter year, by his sufferance, nor could the fact that appellant enjoyed his own rights in the common field, but without claiming to hold the pasture to the exclusion of appellee, be construed into a tenancy by holding over.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.</p>

<p>Allegations and proof.—The allegations and proof must correspond. The evidence in this case fails to show that there was any mistake or misdescription of the lands conveyed.</p>

<p>Error to the Circuit Court of Greene county; the Hon. A. G. Burr, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McDonough county ; the Hon. S. P. Snops, Judge, presiding.</p>

<p>1. Foreclosure—Pebsokal decree.—Where the mortgaged premises have passed into the hands of subsequent, purchasers, subject to the incumbrance, and there was a second mortgage executed upon the premises, it is error, in a proceeding for foreclosure of the first mortgage, to render a decree making all the defendants personally liable for the debt. The debt being that of the first mortgagor, the only consequence of its non-payment by the .other defendants would be a forfeiture of their right of redemption.</p> <p>2. Strict foreclosure.—Where there are subsequent purchasers and mortgagees, it is error to render a decree of strict foreclosure.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.</p>

<p>.Appeal from the Circuit Court of Sangamon county ; the lion. C. S. Zane, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Beplevin—Fraudulent sale—Burden of proof.—In replevin of goods taken by attachment against a third person, if the attaching creditor seeks to justify under the attachment, claiming that the sale to plaintiff in replevin was fraudulent, the burden of proof is upon him to show such sale was fraudulent as to him.</p> <p>2. Presumption of ownership. — Where a purchaser acquires title which is good as against both husband and wife, the presumption of ownership in the husband, arising from possession, is not conclusive in a suit between the purchaser and a creditor of the husband.</p>

<p>Chattel mortgage—Assignment.—Appellee received an assignment of a second chattel mortgage upon a crop of corn, but before assignment to him the corn had been taken upon the first mortgage, sold to appellants, and by them sold and delivered to parties in Ohio. Held, that the assignment after appellants had parted with the possession, passed all the mortgagee’s right in the property, but did not carry with it the right to sue all persons through whose hands it had passed, for injuries to it before the assignment. To maintain such an action, the assignee must have been the owner or entitled to possession of the property at the time of the wrongful act complained of.</p>

<p>1. Seduction—Action by the mother.—Where there is no proof of the relation of master and servant actually existing between the mother and daughter, there must be some proof that the mother was entitled to the wages of her daughter at the time of the alleged seduction, in order to sustain the right of action by the mother for seduction of her daughter.</p> <p>2. Right of action in the father.—The right of the mo'hcr to the custody of a minor child does not arise in the life-time of the father, unless so ordered by the court in a proper case, and in the absence of proof to the contrary it will be presumed that the father is still alive and the right of action remains in him.</p>

<p>Error to the Circuit Court of Macon county; the Hon. W. E. Nelson, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding.</p>

<p>Appeal from the County Court of Vermillion county; the Hon. E. W. Hanfoed, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon-. C. B. Smith, Judge, presiding.</p>

<p>1. Consideration.—It is not necessary that the promisor should be benefited by the transaction; it is a sufficient consideration if the party to whom the promise was made is thereby put in any worse position than he was before; as where by reason of the promise he has released other security.</p> <p>2. Assignment op judgment.—Where a judgment was assigned absolutely, the assignee to deduct therefrom, when collected, the amount of his claim against the assignor, and pay the balance to another, in satisfaction of his claim against a fourth party, the proceeds of such judgment being absorbed by the amount of the two claims, cannot be reached by garnishment in favor of the creditors of the assignor. The assignor has parted with all his interest therein, and the assignee becomes the trustee of such part of the judgment when collected as is to be paid under the direction of the assignor.</p>

<p>1. National banks — May take real estate security.—Banks incorporated under the laws of the United States, as National Banks, may take real estate security for money loaned, and such securities are not void but voidable, and the sovereign alone can object.</p> <p>2. Foreclosure in chancery—Must provide for redemption.— Where a deed of trust is foreclosed by proceedings in chancery, it must take the usual course of such proceedings, and it is error to decree a sale by the Master without redemption.</p> <p>3. Lien upon two funds—Must first exhaust one.—Where one has a lien upon two funds, and another has a lien upon only one of them, equity will compel the first to exhaust the fund upon which he alone has a lien, beforé resorting to the other. If, therefore, a second incumbrance should be created upon a part of the premises held by him in mortgage, he must first exhaust that upon which he alone has alien!.</p> <p>4. Parties in foreclosure.—Where the holders of a second mortgage brought their hill to foreclose, and did not seek any relief against the first mortgagees, the holders of these securities are not necessary parties to the bill; hut where a proceeding to enjoin the trustee under the first mortgage from selling certain of the property under the power of sale in the first mortgage deed, is commenced, and this ease is consolidated with the foreclosure proceeding, and the court undertakes to cover all the equities of all th^ parties, the holders of the first mortgage bonds should he made parties.</p> <p>5. Mortgagee bound to take notice of certain equities.—Everyone taking a mortgage upon real estate is bound to know that by law there remains an estate in the mortgagor subject to sale or transfer, and that the burden of the mortgage will be thrown upon that portion which is retained after such sale, and he is also hound to know that if he releases the part not sold, he thereby, as between himself and the purchaser, releases a portion of the debt equal to the value of the property so released.</p> <p>6. Amount due must be stated. — The court erred in not finding the amount due under the first mortgage, and in allowing the master to determine such amount after sale. If real estate is to be sold under a decree for payment of a debt, the amount of such indebtedness should be fixed by the decree, so that subsequent purchasers or mortgagees can redeem before salé. The court has no power to delegate any of its judicial functions to the master.</p> <p>7. Description in decree.—An erroneous description of land in a decree, cannot he corrected in this court without reversing the decree in whole or in part.</p>

<p>1. Sale of liquors—Ordinance prohibiting—Prescriptions by physicians.—Under a charter authorizing the town to license, regulate and suppress the sale of liquors, an ordinance was enacted, among other things prohibiting under penalty, any physician to give a prescription to a person in good health, to enable him to obtain liquor to be drank as a beverage. Held, that such an ordinance is not unauthorized, unreasonable or oppressive, neither does it discriminate against any class of persons.</p> <p>2. Designating offense as nuisance.—Where an ordinance properly defines an offense and prescribes the punishment, that portion which calls it a nuisance may be rejected as surplusage.</p>

<p>1. Practice—Objections must be made below.—Formal objections, which may be met by proof, must be made in the court below; they cannot be urged for the first time in this court.-</p> <p>2. Form of action—Sealed instrument—Set-off.—Our statute provides that instruments under seal may be declared upon or set off in any form of action in which such instrument might have been declared upon or set off, if not under seal; and where the plaintiff has declared in assumpsit upon a lease under seal, the defendant may offer in evidence, under the plea of set-off, an instrument also under seal, as for rent due him as assignee of another lease.</p>

<p>Error to, the Circuit Court of Morgan county; the Hon. Cyrus Euler, Judge, presiding.</p>

<p>Appeal from the County Court of Logan county; the Hon. S. A. Foley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. C. S. Zane, Judge, presiding.</p>

<p>1. Mortgage—Assignment—Defenses.—A mortgage is not assignable at common law or by the statute, and the assignment of a note secured by a mortgage carries with it the mortgage only in equity ; and where the assignee of such a note seeks to foreclose the mortgage in equity, the court will let in any defense which would have been availing against the mortgage in the hands of the mortgagee himself, regardless of the fact that the assignee may have purchased the note in good faith, before maturity.</p> <p>2. Statement.—The court, from a consideration of the evidence, is of opinion that the pretended assignment was not made in good faith, and thereupon holds that any balance that may be left due from the mortgagor, after allowing his set-off, is liable to the garnishment proceedings of the judgment creditor of the mortgagee, as shown by the second suit.</p>

<p>1. Failure to return execution—Breach of bond.—A failure to return an execution within the time fixed by law, is such a breach of official duty as entitles the plaintiff, in a suit on the sheriff’s official bond, to recover at least nominal damages.</p> <p>2. Levy—Duty of sheriff.—Where certain property is levied upon at the request of the judgment debtor, it is the duty of the sheriff to take it into his possession and sell it.</p> <p>3. Waiver op exemption.—If a judgment debtor directs the sheriff to levy upon certain specified property, he thereby waives his right to claim such property as exempt.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.</p>

<p>Assault and battery—Aiding and abetting.—One is not responsible for a beating inflicted by another, however wrongful it may be, simply because he thinks the punishment deserved, or is pleased at it, or thinks well of it. He must do some act, though never so slight, to encourage the beating, before he is responsible for it. He is not legally responsible for the opinions he entertains, however unjust and perverted they may be, but is responsible for all his acts.</p>

<p>Agency—Payment to agent.—Part payment on a note was made by A, one of the signers, to an agent of the holder, and a receipt given him for the amount. The payment was afterward handed to the holder of the note, who gave the agent a receipt for the money paid, but made no indorsement of the same upon the note. Afterwards, in a suit upon the note, judgment for the whole amount was rendered against A, he making no defense. In a suit by A against the agent, held, that he could not recover the amount paid to him; that he should have presented his defense in the suit upon the note ; and that the agent was not responsible for the application of the money paid him.</p>

<p>Appeal from the Circuit Court of LaSalle county; The Hon. E. S. Leland, Judge, presiding.</p>

<p>Appeal from the County Court of Warren county; the Hon. Elias Willetts, Judge, presiding.</p>

Franklin Blades, Judge, presiding. This was an action on the case for an alleged libel claimed to have been published by appellant in a certain communication directed to the board of supervisors of Kankakee Co., Ill., and filed with the clerk of the board.

<p>Appeal from, the Circuit Court of Iroquois county; the Hon. Fbanklin Blades, Judge, presiding.</p>

<p>I. Towns—Expenses op litigation, a- proper town charge.—Where a town becomes a party to a litigation growing out of a contest for removal of the county seat, it will be liable for all legitimate expenses growing out of such litigation. The act relating to the removal of county seats authorizes a town, to or from which it is proposed to remove the county seat, to become a party to such litigation, and the court by its decree having assessed a portion of the cost against the town, it was the right and duty of the auditing board to make a certificate ordering the levy of a tax to pay such decree.</p> <p>2. Counsel fees.—Having the'right to become a party to such litigation, the town by its supervisor may employ counsel, and the fees of such counsel are a proper town charge for which a tax may be levied.</p> <p>3. Cannot issue interest bearing orders.—The statute nowhere gives a town the authority to pay interest, and the board of auditors have no legal authority to issue interest bearing orders, or to agree to pay interest on behalf of the town.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah McRobebts, Judge, presiding.</p>

<p>1. Highway—Mamdamus to compel opening.—The writ of mandamus is a deseretionary writ, and will only issue where it appears that by law it ought to issue. Commissionsers of highways cannot be compelled by mandamus to open á road over land, to a portion of which the right-of-way has not been obtained, either by grant, release, or condemnation.</p> <p>2. Findings of supervisobs on appeal not conclusive.—The findings of the supervisors, on appeal from the refusal of the commissioners to lay out a road, are not conclusive upon the question of right-of-way. They had no jurisdiction by notice to condemn the land in question, and did not attempt to condemn it.</p> <p>3. De minimis.—The fact that the quantity of land taken is very small is no reason why the courts should disregard the legal rights of the parties.</p>

<p>Appeal from the Circuit Court of Henry county; the lion. John J. Glenn, Judge, presiding.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Francis Goodspeed, Judge, presiding.</p>

John Burns, Judge, presiding. This is an action of forcible detainer commenced in the Circuit Court of Putnam county, by appellees against appellants, to recover possession of certain lots situated in Hennepin in said county.

John J. Glenn, Judge, presiding. A judgment was rendered by a justice of the peace of Warren county against the appellee, upon which execution was issued and placed in the hands of the appellant, a constable, for collection. The appellee made out a schedule purporting to contain an inventory of all his personal property, subscribed and sworn to by him, and delivered the same to the appellant.

<p>Appeal from the Circuit Court of Grundy county; the Hon. Josiah McRoberts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county; the lion. Franklin Blades, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.</p>

J ohn Burns, J udge, presiding. In March, 1876, the appellees formed a partnership for the sale of agricultural implements, and as such firm entered into a contract with the appellant to sell its threshing machines upon commission. The firm was engaged as general dealers in such implements, during its existence of about four months. During this time the appellees admit they ordered a few extras and repairs from the appellant, and to that extent concede a joint liability.

<p>Error to the Circuit Court of Will county; the Hon. Francis Goodsfeed, Judge, presiding.</p>

Josiah McEoberts, Judge, presiding. This action was commenced May 4th, 1878, before a justice of the peace by defendant in error, to recover damages for an alleged wrongful entry into the lands of which she was possessed, and upon appeal to Circuit Court she obtained a verdict for $200, and the court refusing the defendants a new trial, they bring the case here on error.

Fbancis Goodspeed, Judge, presiding. On the 16th of April, 1857, one Thomas G. Wright executed and delivered to the appellant two promissory notes, as follows: “By the first day of July, eighteen hundred and fifty-eight, for value received, I promise to pay Horace Moore, or bearer, one hundred dollars, with interest at ten per cent, annually. “ Thos.

<p>Appeal from the Circuit Court of. LaSalle county; the Hon. Francis Goodspeed, Judge, presiding.</p>

<p>1. Foreign judgment—How proved.—A judgment, when it is the foundation of an action, or material to any issue therein, must be proved, according to the rules applicable to the proof of other like facts, and hence the best evidence is the record itself; but where, from the necessity of the case, a copy of the record is offered as evidence, it must be verified as such under the sanction of an oath pr of some other high authority, such as the law respects no less. So, where the copy offered in evidence was not verified by an oath, or such a seal attached as proved itself, and there was no proof aliunde of its genuineness, or of the signature or official character and authority of the persons certifying it, it was not admissible in evidence.</p> <p>2. Certificate that registrar was keeper of records.—This copy was inadmissible, for the further reason that the certificate of the registrar does not contain a statement that “ he is the keeper of the records of the court, ’ ’ as required by our statute.</p>

<p>Appeal from the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. S. M. Moose, Judge, presiding.</p>

<p>1. Revenue law—Assessment of railroad track—Right of way. —Appellant occupied a strip of land about 500 feet wide, and extending about half a mile, as its right-of-way, the main track running through it, and the remainder being used for side-tracks, turn-outs, machine and repair shops. Section 42 of the revenue law includes as a part of the right-of-way, for the purposes of taxation, not only the main and side tracks and turnouts, but all stations and improvements thereon: and these were properly included by appellant in the assessment under seckon 42.</p> <p>2. Width of right-of-way.—The right-of-way is not limited to any given width. It may vary in different localities; but obviously, a railroad company may appropriate and use for its right-of-way such width of ground as may be reasonably necessary for the economical and convenient transaction of its business.</p> <p>3. Assessment of right-of-way.—The statute divides the real property of railroads into two classes, ‘1 railroad track, ’ ’ and ‘ • all real estate other tb an that denominated railroad track.” With the first of these the town assessor has nothing to do. The latter should be assessed by him as other property. The strip of land mentioned above, with its buildings and improvements, belonged to appellant’s right-of-way, was properly assessed.as “railroad track,” and the assessment of the same by the town assessor under the provisions of section 46, was unauthorized and void.</p> <p>4. Construction of section 43 of revenue law.—Section 43 of the revenue law, providing for the listing and taxation of “railroad track ” in the several counties, towns, cities, etc., in proportion to the length of the main track therein, has no reference to the ascertainment of the value of such property, but merely furnishes the principle upen which the value when ascertained may be distributed to the various municipalities entitled to the benefit of the same, and controls the action of the auditor and county clerk in their duties under section 109.</p>

<p>1. Express trusts—Definition.—Express trusts are those which are created in express terms in the deed or will, and as such, are to be distinguished from implied trusts, which, without being expressed, are deducible from the nature of the transaction as matters of interest, or superinduced upon the transaction by operation of law, as matters of equity, independently of the particular intention of the parties.</p> <p>2. Statute of Limitations.—As between a trustee and cestui que trust, in the case of an express trust, the Statute of Limitations has no application, and no lapse of time constitutes a bar. The relation of privity between tho parties is such that the possession of one is the possession of the other, and there can he no adverse claim or possession during the continuance of tho relation.</p> <p>3. Repudiation by trustee—Effect.—The trustee, by clear and unequivocal acts or words, may repudiate the trust, and claim thenceforth to hold the estate as his own, not subject to any trust; but such repudiation must be brought to the no rice of the cestui que trust in such a manner that he will he called upon to assert his equitable rights; and in such case the statute will begin to run from the time of such knowledge.</p> <p>4. Death of trustee—Descent of estate to heirs.—The ancestor of defendants in error received the lands in question, charged with an express trust in relation thereto. The defendants, as his heirs, took the lands by descent charged with said trust. In the absence of any evidence tending to give it a different effect, the bringing by the heirs of a suitin ejectment against a third party, for the recovery of the lands, was an act in execution rather than in repudiation of the trust. It was their duty, as trustees, to obtain and hold possession of the property as against adverse claimants.</p> <p>5. Purchasing- in adverse title by trustee.—The defendants claimed that an adverse title having matured in the hands of a third party, and they having obtained conveyance of such title to themselves, can now set up such title against the claim of the cestui que trust. This they will not be allowed to do. The property given by them in exchange for the adverse title was a part of the trust property, and, as between them and the cestui que trust, belonged to the latter. Again, they will be presumed, in obtaining such title, to be acting in behalf and for the interest of the cestui que trust. A trustee cannot purchase an outstanding interest in the trust, and hold it for his own benelt.</p> <p>- 6. Laches of cestui que trust.—As between the trustee and cestui que trust, the mere failure of the latter to assert his rights by any affirmative act, will not bar such rights, however long it may continue.</p> <p>7. Payment of taxes.—By the terms of the declaration of trust, it became the duty of the trustee to pay the taxes imposed upon the lands, and laches cannot be imputed to the cestui que trust in suffering the land to be sold for <axes.</p> <p>8. Estoppel of trustee.—The defendants sought to defend by showing a variance between the allegations and proof as to the time the declaration of trust was executed. In this they are estopped by the recitals in the declaration. They will not be permitted to show that in fact it was executed at a time other than that on which it bore date.</p> <p>9. Interlineations—Old document.—This court, from an examination of the original instrument, are of opinion, from its appearance and the nature of the interlineation, that the words interlined were written at the time it was drafted; and this, in connection with its antiquity, justified the court below in admitting it as evidence.</p>

<p>Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Suit to establish title—Title under tax deed—Burden of proof.—In a suit to establish title, the defendant set up a claim under a tax deed. Held, that the complainant having shown a valid chain of title from the government, the burden of proof was upon the defendant to establish the validity of his title under the tax deed.</p> <p>2. Proof of title under tax deed—What must be shown.—Under the “Burnt Record Act,” no tax deed can be received as prima facie evidence of the regularity and legality of the proceedings under which it was issued; but the burden is upon the party claiming thereunder, to show affirmatively that each and all of the proceedings required by law in respect to assessment, levy, sale and deed of the lands affected, have been in all respects complied with, and no presumption can be indulged in favor of such deed or sale.</p> <p>. 3. Injunction—Dismissal for want of prosecution—Res ad judicata.—Where a bill was filed for an injunction, a preliminary injunction granted, and the bill subsequently dismissed for want of prosecution, the final order of dismissal has none of the effect of res adjudicada, and, although the plaintiff in this suit may have been in privity with parties filing such a bill, to set a=ide the judgment and tax sale, and restrain the making of a deed, she is not estopped to question the validity of such tax sale in any other suit, nor does the order of court dismissing such injunction suit, affect the burden of proof under the statute in this case.</p> <p>4. City collector—Power to sell abolished by the constitution.—The constitution of 1870 declares that the General Assembly shall provide for a sale of taxes by some general officer of the county having authority to receive state and county taxes, and there shall he no sale of lands for taxes but by such officer, upon the order or judgment of some court of record. This provision of the constitution abrogated the power of the collector of Chicago, under the charter of the city, to sell lands for taxes, and the sale under which defendant claims having been made by such collector after the constitution came into force, it is void, and conveyed no title.</p>

<p>1. Bill of exchange—Acceptance—No ' consideration.—A valid and sufficient consideration is of the very essence of every contract not under seal, and promissory notes and bills of exchange aro no exception to the general rule. As between the drawer and acceptor of a bill of exchange, a want of consideration may be shown under the general issue..</p> <p>2. Burden of proof.—In an action by a drawer against an acceptor of a bill of exchange, the burden of proving want of consideration is upon the defendant; but when the defendant shows prima facie that there was no consideration for his acceptance, the presumption of consideration is' rebutted, and the burden is then shifted to the plaintiff to show a consideration.</p>

<p>1. Causes oe action — Election.—A party cannot occupy inconsistent positions, and where one has an election between several inconsistent causes of action, he will be confined to that which he first adopts. Any decisive act of the party done with knowledge of his rights and of the facts, determines his election and works an estoppel.</p> <p>2. Contract—Privity—Consideration.—There is nothing in, the circumstances of this case from which the law would imply an undertaking on the part of defendant to pay for the machine in question, and it was therefore essential to a recovery that plaintiff should establish an express contra t with defendant. The possession and use of the machine by defendant, might constitute a sufficient consideration for his alleged promise to pay §200, but such offer must be accepted; there must be a meeting of minds, or there is no legal contract.</p> <p>3. Mutual promises—Must be simultaneous.—Mutual promises, to be obligatory, must be made simultaneously, and an acceptance by the plaintiff a year after the offered compromise was made would be entirely nugatory. No time was fixed by the defendant’s proposition, and it is unreasonable to suppose that the parties contemplated the giving or taking any such period of time for acceptance.</p>

<p>1. Incorporated companies—Levy and sale of shares of stock— Certificate to purchaser.—There is no authority at common law for levying an execution upon the interest of a shareholder in the capital stock of a corporation. The proceeding is wholly statutory, and the course pointed out by the statute must be strictly pursued.</p> <p>2. Construing statutes.—-A statute which is introductive of a new law, and requires a thing to be done in a particular manner, though containing no negative, impliedly prohibits that thing from being done in any other maimer.</p> <p>3. Attested copy of execution to be left with clerk, etc.—To constitute a lawful seizure, the statute requires that the officer having the execution shall leave an attested copy thereof with the clerk, treasurer or ■cashier of the company, if there be any such officer, but if there be neither, then he shall leave such copy with any officer or person having custody of the books and papers of the Corporation, and the return of the officer should show that these pre-requisites have been complied with.</p> <p>4. What is meant by attested copy.—The word “attested” when used with reference to judicial writings or copies thereof, means an authentication by the clerk of the court, so as to make them receivable in evidence, and this is the meaning intended by the statute above mentioned.</p> <p>5. Execution and return as evidence —The return of the sheriff not showing that an attested copy of the execution was left with any of the persons mentioned in the statute, and there being nothing to show that the copy left was authenticated or attested as required by law, it was wholly defective and insufficient to show title in the relator, and hence was not competent to be received in evidence.</p> <p>6. Practice — Exception to improper evidence.—An exception to the admission of improper evidence, especially where the judgment is wholly unsupported by the evidence, can be availed of without the bill of exceptions showing that a motion for new trial was made.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. S. M. Mooke, Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.</p>

<p>Trespass—Exemplary damages — Taking property oe another under replevin writ.—In trespass for taking property, where there is no evidence to show that the deputy sheriff acted maliciously or recklessly in serving the process, no exemplary damages can be recovered against him, and he is not liable for what the plaintiff in replevin did with the goods after he obtained possession of them. Unless both defendants acted in concert, or the act of the party sought to be charged natura’ly and necessarily produced the acts of the others, one defendant cannot be held for the act of another.</p>

<p>Appeal from the .Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

<p>1. Deeds—Description in—Ambiguity.—Where a description in a deed which is plain and unambiguous in its terms, is preceded or' followed by a clause that is ambiguous and uncertain, the latter must be rejected, and the former prevail. So, where a deed describing the whole of a certain section, except seventy-five acres “before mentioned,” and the only mention that had been made of seventy-five acres, was “ also the undivided part of seventy-five acres in a certain piece or parcel of land, situated as aforesaid in the S. E. t of Sec. 32, T. 40, N. R. 14 E. containing 160 acres,” held, that the excepting clause being void for uncertainty, would be rejected, and the deed would stand as a conveyance of the whole section without an exception.</p> <p>2. Dower.—The grant being construed as a conveyance of the whole section without an exception, and appellee having joined with her husband in such conveyance, releasing her dower, her entire interest in the whole tract was conveyed, and she is not entitled to dower.</p>

<p>Appeal from the Superior Court of Cook county ; the Hon. S. M. Moore, Judge, presiding.</p>

<p>1. Statement—Bequests.—The testator made specific bequests of lots in Chicago, to different persons, “ subject to the payment of my debts, the annuity to my wife for her life, and the re-building of houses on my vacant lots in Chicago/’ the rents, except what might be necessary to pay the above charges, to be paid to the devisees until they arrived at a certain age named, when they were to take in fee, but still charged with the burdens above named. Held, that the will plainly showed the general purpose of the testator, that all his vacant lots were to be built up at the expense pro rata of all liis beneficiaries in bis Chicago property; that each devise was charged with this burden as long as, and until the entire purpose of the testator was carried out by the erection of buildings on a'.l his vacant lots, save the water lot, which was excepted.</p> <p>2. Wills—Rules of construction—Intention op testator.—The intention of the testator, as gathered from the whole will, is to govern in its construction. It is also a rule in the construction of wills that a latter clause which is repugnant to a former provision, is to be considered as an intention to modify or abrogate the former.</p> <p>3. Devise subject to burdens.—The devise to appellee was of the rents of lots 5 and 6, he to receive the rents thereof (subject to payments as above stated) until he arrived at the age of thirty years, “then he shall have said houses and lots in fee simple, only thereafter subject to its pro rata payment of any debts against my estate created by me or my executors by my directions, and wife’s annuity as long as she may live.” Held, that the word “ created” as used in reference to debts, referred not on’y to debts created at or-before appellee arrived at thirty years, but also to such debts as might hereafter be created for building houses on other vacant lots, as intended by the testator; that such bequest was charged pro rata with the burden of carrying out the purpose of the testator in improving his vacant lots in Chicago, as expressed in his will; that although appellee at the age of thirty became invested with the fee, yet such fee might be charged with a trust for a special purpose, and when that purpose is accomplished he holds the land discharged of the trust.</p>

<p>1. Agency—Authority.—The employment of parties to collect the rents of a building does not give them authority to employ an engineer to take charge of the engine in such building. The employment of such engineer'is not within the scope of then- authority as agents for the collection of rents, and their contract in that behalf will not bind the principal.</p> <p>2. Delegation oe authority.—A general agent of the owner, having superintendence over the building, and vested with judgment and discretion to employ an engineer, cannot delegate such authority to others, so as to make their acts binding upon his principal.</p>

John G. Rogers, Judge, presiding. Peck brought an action of replevin to the August term, 1877, of the Cook County Circuit court against Kern, sheriff, Gal-pin, deputy sheriff, and one Hubbard, and the goods mentioned in the writ were taken and delivered to plaintiff. July 19, 1877, plaintiff filed his declaration in the cepii.

<p>Erkob to the Criminal Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

<p>1. Replevin.—To sustain replevin for the wrongful taking and detaining of a personal chattel, it must he shown that the defendant wrongfully took it from the actual or constructive possession of the plaintiff. In this case, plaintiff in error had built a house upon ground leased of defendant in error, and being about to remove it, defendant in error had levied a distress warrant thereon, and placed a custodian in charge by remaining on the lot, the'family of plaintiff in error still occupying the house. He then brought replevin in the cepit for the house. Held, that the plaintiff in error had not wrongfully taken the house out of the possession of defendant in error, and under the issue of non cepit the plaintiff had failed to make out a case.</p> <p>2. Distress 'warrant—Cannot be levied unless for rent dub.— The right of a landlord to distrain for rent arises at common law, and there can be no distress unless there has been an actual demise, at a certain fixed rent. There being no evidence that plaintiff in error was to pay rent, the dis ress was invalid, and furnished no ground to support the action of replevin.</p> <p>3. Manner of levy.—A mere paper levy, with placing a custodian on the lot, but not in the house, is not such a levy as would give defendant in error a special property in the house.</p>

S. M. Moore, Judge, presiding. This was a bill in chancery, tiled March 19, 1879, by appellants, children of full age of appellee, William C. Teaton, and his late wife Mary Frances, against appellee and others, to compel said William C. to convey over to appellants, as such children, the legal title to certain lots in out-lot 17, Canal Trustees’ Sub. of Sec. 33, T. 39, R. 14, E., situate in Cook county, Illinois.

<p>1. Option contracts.—The word “option,” as used in the statute of this State, prohibiting option sales and contracts, means a mere choice, right or privilege of selling or buying; and it is the privilege of selling or buying at a future time any commodity, which the statute was intended to prohibit, as contradistinguished from an actual sale or purchase with the intention of delivering and accepting the commodity specified.</p> <p>2. Note given for differences void.—The statute was enacted from motives of public good, and to repress an evil, and no matter what form the transaction hears as to the terms of the contract, still, if the form be color-able only, and the real intention of the parties be'that there is to be no sale of the article, no delivery or acceptance, but that the transaction is to be adjusted only upon differences, it is a gambling transaction within the meaning of the statute, and a note given therefor, even in the hands of a bona fide holder, is void.</p>

<p>Error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p>

<p>1. Evidence—Opikiox as to talus of property.—In a suit to recover double the value of exempt property taken on execution, a witness, after stating that he knew the horse in question, having seen it often, was asked Ms opinion as to its markeffvalue, to which he was not allowed to make an answer. If the refusal to allow the witness to answer was because he had not shown special knowledge of the value of horses, the ruling was erroneous; every one is presumed to have some idea of the value of property which is in almost universal use.</p> <p>2. Secondary evidence oe lost instruments —The rule applicable to the preliminary proof of the loss of instruments, before secondary evidence of their contents can be given, requires the testimony of the last custodian of such instrument, to the thoroughness of the search made, and the inability to find it.</p> <p>3. Exemption—Head oe eamily.—An instruction to the jury regarding exemptions, proceeding upon the hypothesis that the defendant was a married man, and the head of a family, when there was no proof of that fact, is erroneous. Such fact was material, and in the absence of proof to support it, the instruction was improper.</p>

<p>Common carrier—Express companies—Goods sent for collection on delivery—Damages.—Appellees sold a pool table to 0. and sent the same by the railroad company, to be delivered on payment by C. of $25 cash and the execution of certain notes, which were del v red to appellant with the bill of lading; The agent of appellant at the point of destination delivered the table to C. without requiring payment of the $25, or execution of the notes. Afterwards, on discovering the error, he took possession of the table from C. uninjured, and held the same for appellees. Held, that although there had been a technical conversion of the table by appellants, yet if it was not willful, and the property was restored uninjured before suit brought, such fact should go in mitigation of damages, even without proof of acceptance. The damages should be measured by the actual loss or amount of the injury under the circumstances as shown.</p>

<p>1. Statement—Mortgage—Fraudulent release.—R. sold to A. certain lands, taking the notes of A., and a mortgage of the premises, to secure the deferred payments. The notes and mortgage were afterwards assigned to 0., for a valuable consideration, but the assignment was not put upon record. After this assignment, and before the notes had matured, R. procured a quit-claim deed from A. of the lands, releasing A. ’s right of redemption, and made application to appellant’s bank for a loan upon the premises. Pending the negotiations for such loan, R., without the knowledge of 0., assignee of the notes, and in fraud of his rights, released the mortgage from A. to him and placed such release upon record. The notes were not in fact paid. Thereupon, the title appearing good of record, the bank made the required loan to R., and took as security a trust deed upon the lands aforesaid.</p> <p>2. Subsequent mortgagee in good faith protected.—In an action by 0. to have the release of the mortgage set aside and the trust deed held by the bank postponed to his lien as assignee of such mortgage, held, that the bank being an innocent mortgagee for a valuable consideration, upon the faith of a record showing good title in the mortgagor, and without actual notice of the assignment, was entitled to protection.</p> <p>3. Assignment of mortgage should be recorded.—The registry laws of this State contemplate the recording of assignments of mortgages, as well as other instruments relating to real estate, and it was the duty of the assignee of the mortgage, if he would protect himself against subsequent mortgages and purchasers, to have caused his assignment to be placed upon record.</p> <p>4. Notice—Presumption.—A purchaser of lands is presumed not to have notice of an unrecorded interest therein, and the notice to such purchaser that would protect the holder of such unrecorded interest, must be of such a character as to take the place of registry; it must be more than barely sufficient to put him on inquiry.</p>

S. M. Moore, Judge, presiding. This was a bill in chancery, brought by Peter J. Bruck to foreclose a deed of trust, executed by John Frank, and Barbara Frank, his wife, to one Eben F. Runyan, as trustee, to secure the payment to said Brack of the sum of §400 and interest.

<p>Error to the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.</p>

W. K. McAllister, Judge, presiding. This was an action of covenant, brought hy Seth Wadhams against Ethel L. Innes and Catherine Innes, to recover damages for an alleged breach of the covenant of seizin, in a deed from them to him.

S. M. Moobe, Judge, presiding. This was a petition for a mechanic’s lien, filed by William R. Clark and Lewis E. Clark, on the 18th day of December, 1873, in the Superior Court of Cook county. The record shows that on the 10th day of May, 1873, the petitioners agreed to construct a certain building for Michael W. Manning, one of the defendants, for the sum of $2,800, upon a lot in Chicago of which said Manning was the owner.

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by James B. Smith against Oscar D. Wetherell and others, t) recover the balance due upon a bill of lumber sold and delivered by the plaintiff to one Henry Bennett.

<p>1. Judgment against evidence.—The questions involved in this case are mainly of fact; one being the right of appellant to charge commissions on sales. This was maintained by appellant and denied by the consignor; but the fact that the consignor received from appellant monthly accounts of sales, in which commissions were charged, and made no objection to them, tends to show an agreement for such commissions, or an acquiescence therein on his part, and strongly to corroborate appellant’s claim that such commissions were agreed upon.</p> <p>2. Settlement.—It was claimed by appellant and denied by the consignor, that a full and final settlement was made, and the balance due the consignor paid. When such settlement is once shown, it cannot be impeached without clear and satisfactory evidence. In this case the evidence tending to impeach the settlement is conflicting, unsatisfactory, and insufficient to justify the court in disregarding the settlement.</p>

Henry Booth, Judge, presiding. This was an action on the case, brought by Andrew Monka against the North Chicago Eolling Mills Company, to recover damages for a personal injury suffered by the plaintiff while in the employ of the defendant.

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