Volume 40 — Illinois Reports

<p>1. Writ op error to a county court. A writ of error does not lie to a County Court, to bring in review the propriety of the action of that court in the appointment of an administrator.</p> <p>2. Former decision. The case of The Unknown Heirs of Langworthy v. Baker, Admr., 23 Ill. 487, reviewed and explained in reference to that question.</p>

<p>’ 1. Bond nor costs—where the plaintiff sues in a fiduciary capacity. The statute which makes it the duty of the court to require any plaintiff who is unahle to pay the costs of suit to give security for their payment, applies as well where the plaintiff sues in a fiduciary capacity, as where he sues in his own right.</p> <p>3. So where a writ of error was sued out by an administrator, and it appeared that the estate of the intestate was utterly insolvent, a rule was entered requiring the plaintiff to show cause why he should not give security for costs.</p> <p>3. Insdnnicient abstracts — rights of the defendant in error. A defendant in error has the right to file a sufficient abstract of the record in the cause, in case the plaintiff has neglected to do so.</p> <p>4. Same — costs in respect thereto. Where the defendant in error deems the abstract filed by the plaintiff insufficient, and files an additional abstract, the court will, upon examining the case, determine upon the necessity of the additional abstract, and award the costs accordingly.</p> <p>5. Submission upon abstracts and Iriefs “ to he filed.” When a case is submitted upon abstracts and briefs "to be filed,” they must be filed within such time that the case can be disposed of when it is reached in conference, during the term. When a definite time is intended to be allowed, it is so expressed in the order of submission.</p> <p>6. J cinder in error—when not neeessa/i'y. Where both parties submit a cause for decision, without a joinder in error, it is not important that there should be such joinder.</p> <p>7. Setting aside submission —joinder in error. But if the defendant desires, in such case, to join in error, he may do so without the submission being set aside.</p>

This case appears upon the docket as a writ of error, the transcript of the record is on file, to which is attached an assignment of errors which is not signed by counsel or otherwise, nor is there a praecipe on file, or any thing to show by whom the record was brought to this court. The defendant in error, however, had joined in error; and subsequently asked leave to withdraw his joinder in error, and to plead.

This was a prosecution in the Circuit Court of Putnam county, against Noxon, upon a charge of bastardy. Such proceedings were had in the court below, that the suit was dismissed, and thereupon the people sued out this writ of error to reverse the judgment of dismissal.

<p>1. Appeal—when it wiU lie—construction of act of 1865. Prior to the passage of the act of 1865, allowing appeals to he prosecuted from all judgments, etc., upon which a writ of error might be sued out, a party could not have an appeal from a judgment in his own favor; the only mode by which he could have the case reviewed was by writ of error.</p> <p>2. And that act is prospective, only, in its operation in that regard; so a judgment rendered before its passage is not within its operation.</p> <p>3. Supersedeas—when granted. A supersedeas will not be granted on the application of a plaintiff in error who seeks the reversal of a judgment in his own favor.</p> <p>4. Same—its effect. The granting of a supersedeas will not have the effect to prevent the clerk of the court below from issuing his fee bills to collect the costs in the cause, occasioned by the parties respectively; it would only restrain the successful party from proceeding under his judgment.</p>

<p>Appeal from the Circuit Court of McLean county.</p>

This was an appeal from the Circuit Court of McLean county. The judgment from which this appeal was taken was rendered at the December Term, 1862, of the Circuit Court, and during the same term, but on a day subsequent to the entering of the judgment, the railroad company prayed their appeal, which was granted, and the company allowed thirty days in which to file an appeal bond, in the penalty of double the amount of the judgment, with Asahel Gridley as security.

Oh the 16th day of December, 1865, Tipton Coomes recovered a judgment in the Circuit Court' of McLean county, against the Toledo, Peoria and Warsaw Railroad company, in an action on the case, for the sum of seventy-five dollars damages.

An appeal having heen prayed and allowed in this cause in the court below, Messrs. Gookins, Thomas & Roberts, appeared on the fourth day of this term, on behalf of the appellants, and moved the court for leave to file a transcript of the record in the cause, oifering to read an affidavit, showing cause for having failed to file the record on or before the third day of the term.

<p>Continuance—;filing record sooner than the law requires. If the appellant voluntarily files his record in this court sooner than required by law, and the appellee appears and joins in error, the case will stand for hearing at the term, the same as if the record had been filed under the requirements of law; and in such case the appellant cannot have a continuance merely because he was not required by law to file his record at that term.</p>

Thomas Small exhibited his bill in chancery in the court below to foreclose a mortgage executed by Colby and Ellsthorpe to Wright, who assigned the debt to secure which the mortgage was given, to Small, the complainant. The decree found the sum remaining unpaid to be $8,580, and directed the master to make sale of the mortgaged premises, or so much thereof as should be necessary to pay that sum, together with the costs of the proceeding.

<p>1. Emma record—effect of neglect thereof, on writ of error. The omission to file the transcript of the record in a cause in which a writ of error has been sued out, within the first two days of the term, is not ground for dismissing the suit.</p> <p>3. Rule to mare return to writ of error. But such omission is ground for a rule upon the clerk of the court below to make return to the writ of error.</p>

On the 23d day of April, 1864, which was subsequent to the filing of the record in this court, the parties to this suit, by their respective counsel, entered into and filed a stipulation, in writing, that the abstract of the record, which had been amended, should be regarded as the correct abstract; and the stipulation also fixed the consideration of certain deeds referred to in the record.

Murphy, administrator, etc., having instituted a suit in chancery in the Circuit Court of Macon county, against Henry Willenborg and Frank Willenborg, obtained a decree against Henry Willenborg alone, that he should pay to the complainant the sum of seventy-five dollars within a given time, etc. No decree was rendered against the defendant, Frank Willenborg.

This was an appeal by the plaintiff in the court below from a judgment in an action of forcible entry and detainer. The appeal bond was not executed by the plaintiff, but by another person who it seems was the plaintiff’s landlord. The appellee moved to dismiss the appeal, because the bond was not signed by the plaintiff.

This was an action of replevin instituted by Dietrich against Rumsey. A trial resulted in a verdict for the defendant, upon which a judgment was entered against the plaintiff, on the 13th day of September, 1866, for costs, and awarding a return of the property..- The- plaintiff appealed to this court, the appeal bond reciting a judgment as being rendered on the 14th of September, and describing the judgment as being simply for costs.

Writ of Error to the Circuit Court of Henry county. The record in this cause was filed on the 23d day of April, 1863, and, on the 13th of May following, the court ordered that the writ of error which should issue should operate as a supersedeas. The assignment of errors was set forth in the written abstract and brief of the plaintiff, but was not written upon or attached to the original transcript of the record.

<p>Motions—when they must be in writing. After a joinder in error, if objection be made, a motion for leave to assign additional errors will not be entertained, except it be in writing.</p>

<p>This was an appeal from a decree rendered in a suit in chancery in the Superior Court of Chicago.</p>

<p>1. Abstracts must be filed. A cause will not be heard in the Supreme Court unless an abstract of the record is filed.</p> <p>3. Same—rights of defendant if plaintiff fails to file distract. If the plaintiff in error omits to file an abstract of the record, the defendant may file an abstract and prepare the cause for hearing ex parte; or, on the second calling of the cause, the defendant may have the cause continued or dismissed, at the discretion of the court.</p>

Mr. Crane inquired of the court whether it was required, under the rules, that printed briefs shall be filed when cases are submitted for decision without oral argument.

Leave was asked, by the counsel of the respective parties, to submit this cause to the court for decision, upon written arguments to be filed.

<p>Printed briefs must he filed, even though there he a printed argument, unless the points are clearly and separately set down in the argument, with the authorities in support thereof immediately following.</p>

<p>1. Cost liraance for want of printed briefs. Where a cause on writ of error, without a supersedeas, was submitted without oral argument, the cause was continued because the plaintiff in error failed to furnish printed briefs.</p> <p>2. Dismissal for the same came. Had the cause been brought up by appeal, or had a supersedeas been granted, the cause would have been dismissed, on account of the neglect of the plaintiff to prepare the same for a hearing.</p>

There was a joinder in error, and a submission of this cause, by both parties, for decision at the present term of the court.

Writ of Error to the Circuit Court of Warren county. Jt appearing that the hill of exceptions in this cause was not under seal, Mr. T. G-. Erost, for the plaintiffs in error, moved the court for leave to amend the record in that regard, or to permit the judge of the court below to amend the bill of exceptions by attaching his seal to his signature thereto.

In this case, upon a hearing at the last term, the judgment of the court below was reversed. At the present term the defendant in error filed his petition for a rehearing, and, among other .grounds in support of his application, sets up an alleged diminution of the record, producing affidavits showing in what the diminution consists.

This was an action of ejectment. It was agreed between the parties, that, on the trial in the Circuit Court, the defendant introduced in evidence, as a part of the chain of title under which he claimed, a certain deed, which is copied into the record, but inadvertently and by mistake omitted from the bill of exceptions; and that neither the defendant nor his attorney had knowledge of such omission until within the present week, during which this application is made.

This was upon a writ of error to the Circuit Court of Randolph county. The plaintiff in error, upon an indictment for murder, was tried in the court below, found guilty of manslaughter, and received his sentence in pursuance of the verdict of the jury.

The defendant in error moved the court for leave to file an additional and complete transcript of the record and proceedings in thfe court below, suggesting that the record already on file was defective. The plaintiff insisted that the defendant, having joined in error, had waived his right to question the sufficiency of the transcript on file.

<p>1. Amendim the transcript—in the Supreme Gowrt. This court cannot amend a transcript of a record, even by the original papers, should they be produced by a party for that purpose.</p> <p>2. How to procure a correct tbaiíscrift. Should matter be copied into the transcript as a part of a bill of exceptions, which is not contained in the original bill of exceptions, the proper course is, upon proper suggestion, supported by affidavit, to ask for a wit of certiorwri, so that a correct record may be brought up.</p>

Counsel for the plaintiff in error suggested to the court that the clerk in the court helow in transcribing the record and proceedings therein, had omitted to copy the seal of the officer who took the acknowledgment of a deed which appears in the transcript, and asked leave to withdraw the transcript with a view to its amendment in that regard.

<p>1. Amending becobds in the Supreme Court. This court cannot supply omissions in the record; that can only he done in the court helow.</p> <p>2. So where it is alleged that certain instructions were omitted from the bill of exceptions, this court can only award a writ of eertiora/ri, to enable the party to bring up a complete record, when amended in the court below.</p>

<p>Certiobabi—when affidavit required. A suggestion of diminution of record, as the basis for an application for a writ of certiora/ri, should be supported by affidavit showing the fact of diminution, where that fact does not appear from the face of the record itself.</p>

AlPpeal from the Superior Court of Chicago. The judgment in the court below, from which this appeal was taken, was entered upon default.

<p>1. Original papers—when this coy/rt will compel their production. Where an original paper used on the trial helow is in the hands of a party to the suit, this court may, in a proper case, compel its production; but when the paper is in the custody of the court below, or of its legal custodian, this court has no control over it.</p> <p>2. Same—how they may be obtained. When it appears to be necessary that this court should have an original paper used on the trial below, for inspection, and such paper is in the custody of the clerk of the court below, he will be requested to send it up for that purpose, but this court cannot compel him to do so.</p>

Me. Scates stated to the court that upon the hearing of this cause it would be necessary to produce some of the original papers used on the trial below, with a view to their inspection by the court,-and the detection of certain erasures and interlineations appearing therein, and which do not appear in the transcript, and inquired whether a rule would be entered, upon mere suggestion, requiring the clerk below, in whose custody they were, to send them to this court, or…

The counsel for the plaintiff in error suggested to the court that the rule to join in error heretofore entered in this case, had expired, and there was no joinder, but he desired a decision upon the errors assigned; he inquired what would be the proper step to take in view of the condition of the record.

This cause was reversed at the April Term, 1863, of this court, for non-joinder in error. On the thirty-eighth day of the April Term, 1864, Mr. Redfield, for the defendant in error, moved the court to set aside the reversal, upon the ground that the scire facias was not served ten days before the term at which the judgment of reversal was entered.

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

This is upon petition for mandamus. Hr. B. F. Parks, for the petitioner, suggested to the court that an issue of fact was made up, and inquired whether the issue would be tried in this court.

This was an application to this court for a writ of mandamus. An alternative writ was awarded, and a return made thereto, whereupon

<p>Release eo errors — dismissed of a bill in chancery for am, injunction absolutely, and a dismissal “ without prejudice.” Although a wide difference exists between the dismissal of a bill in chancery, absolutely, upon the hearing, and its dismissal “without prejudice,” in its bearing upon the question whether the complainant is concluded in his right to sue again, yet that distinction does not obtain in reference to a plea of release of errors, alleging that the judgment sought to be reversed had been enjoined at the suit of the plaintiff in error, and that the suit in chancery in which the injunction was issued had been dismissed.</p>

<p>Samuel Todd instituted an action of trespass on the case against The St. Louis, Alton and Terre Haute Railroad Company, to the September Term, 1864, of the Circuit Court of Coles county, and the trial thereof resulted in a judgment in favor of the plaintiff below for the sum of two hundred and fifty dollars damages, and his costs of suit.</p> <p>On the twenty-fifth of the October following, an execution was sued out upon that judgment, and placed in the hands of the sheriff, who levied the same upon certain personal property cf the company.</p> <p>Before any sale had taken place under the levy, the company exhibited their bill in chancery in the Circuit Court, setting up, in substance, that the proceedings in the suit at law were erroneous, but there would not be sufficient time to procure a transcript of those proceedings and apply for a supersedeas, before a sale would be made of the property levied upon by virtue of the execution; and moreover, it was alleged in the bill that the company held real estate situate in Coles county at the time the levy was made upon the personal property, and it was insisted the real estate should have been levied upon and exhausted before a levy could properly be made upon personalty. Todd and the sheriff and others were made parties defendant, and the bill concluded with a prayer for an injunction, as follows: “And that in the mean time your Honor order the issuance of an injunction, addressed to the above parties and all persons acting through or under them, restraining them from the sale of said property, or from any other act, whereby any further action may be taken with said execution in the premises until the hearing of said cause in this behalf; and that on the hearing, your Honor decree a release of said property, and the payment by said parties to orator the damages arising by reason of the wrongful levy of said execution on said personal property, and its detention,” etc.</p> <p>The master in chancery ordered the clerk to “ issue a writ of injunction in this cause in conformity with the prayer of the bill; ” which was accordingly done, and served upon the parties.</p> <p>Afterward, the company brought the original suit at law to the Supreme Court, upon writ of error; and at the January Term, 1865, of this court, Todd, the defendant in error, interposed a plea, setting up the granting of the injunction, and claiming that it was a stay of the judgment at law, and operated as a release of all errors in the proceedings in that suit. An issue was formed, and the question presented is, did the granting of the injunction in this case operate to release the errors in the proceedings in the suit at law ?</p>

The defendant in error in this case moved the court to strike the bill of exceptions from the record, because, as was alleged, the order of the court below required the bill of exceptions to be filed within ten days after the 17th day of March, 1866, while, in fact, it was not filed until the month of October following ; and the affidavit of the clerk of the Circuit Court was filed in support of the motion.

<p>This was an application to this court for a writ of man-damns, in the name of the people, on the relation of John S.</p> <p>Vosburgh against John A. Jameson, one of the judges of the Superior Court of Chicago, to compel him to sign an amended bill of exceptions.</p> <p>It appears that on the trial in the Superior Court of a cause wherein John S. Vosburgh was plaintiff and The Chicago and Great Eastern Railway Company was defendant, at which Judge Jameson presided, among other witnesses Augustus Wallbaum was introduced and testified. The trial resulted adversely to the defendant, and, preparatory to bringing the case to this court for a review, a bill of exceptions was prepared purporting to embody the evidence given, which was signed and sealed by the judge. Subsequently, Vosburgh, being dissatisfied with the statement of the testimony of the witness Wallbaum, as presented in the original bill of exceptions, prepared an amended hill of exceptions, giving a different statement of the testimony of that witness, and presented the same to Judge Jameson to be signed and sealed by him, which he refused to do. And thereupon, Yosburgh applied to this court for a writ of mandamus to compel the judge who tried the cause to sign the amended bill of exceptions.</p> <p>The issuing of an alternative writ was waived, the following statement by Judge Jameson being taken as a return, upon which the relator moved for a peremptory writ of mandamus.</p> <p>This is the statement of Judge Jameson :</p> <p>“ To the Honorable the Judges of the Supreme Court of the State of Illinois:</p> <p>“ I, John A. Jameson, to whom the annexed writ is directed, having declined to sign and seal the bill of exceptions copied into said writ, respectfully return said writ to your honorable court with the reasons that have governed my action.</p> <p>“ The cause named in said writ is now pending in your honorable court, on appeal taken by the defendant below, and the record will show the bill of exceptions which I did sign and seal, and to it I refer for its contents.</p> <p>“ When the bill of exceptions was presented to me by the defendant below, I understood it had been for a considerable time in the hands of the plaintiff’s counsel, and there was no disagreement, except as to the statement of the last offer of proof to be made by the witness Wallbaum. The defendant’s counsel insisted the statement in the bill of exceptions presented by them was accurate, while the plaintiff’s counsel objected, and insisted it should be changed so as to make it substantially as in the attached writ.</p> <p>“ I had no memoranda of the disputed matter, and no recollection about it that was at all satisfactory to my own mind.</p> <p>“ I listened patiently and carefully to the statement made by the counsel of both parties, and was still uncertain as to what the fact was.</p> <p>“There had been a phonographic reporter present during the time the testimony was being taken (though different reporters were there at different times). I sent for Mr. S. W. Burnham, the reporter who was present at the time the disputed matter occurred; he appeared, bringing his original writing, made at the time by him, and I examined him fully as to the certainty of the signs used by him, the probability of a mistake in writing what occurred, and whether there could be any real difference in the reading by different persons; after being satisfied as to those matters, I heard the reporter read his original writing, myself reading the bill of exceptions as presented, and found the two to correspond exactly as to the disputed matter.</p> <p>“ I have known Mr. Burnham as a reporter for nearly two years, he has frequently taken testimony in cases before me, and I had and have full confidence in his capacity as a reporter, and his integrity as a man.</p> <p>“After giving the matter the most careful consideration, I concluded the bill of exceptions as presented by the defendant was correct, and I therefore signed and sealed it, and of course refused to sign and seal the one copied into the attached writ when it was afterward presented to me. Attached hereto, and to be regarded as part of this return, will be found the affidavits of Robert Jones and George Gardner, the attorneys in said cause for the defendant, and that of Sherburne W. Burnham, the reporter above mentioned.</p> <p>“ Since the bill of exceptions, as presented by defendant’s counsel, was signed by me, I have also examined the witness Wallbaum, who was out of the city at the time said bill was signed, and from his recollection of the questions and answers put to and made by him, the probability that the bill signed by me is correct, is to my mind much increased.</p> <p>“ I am still satisfied with the conclusion at which I arrived, and will not change the record in said cause, unless peremptorily ordered so to do by your honorable court.”</p> <p>“JOHN A. JAMESON,</p> <p>“ Jwlge Superior Court of Chicago.”</p> <p>Several affidavits were presented touching the facts in dispute, which it is not necessary to notice.</p>

<p>1. Bill of exceptions—time for filing the same. Where a party presents his hill of exceptions to the judge within the time prescribed for its being filed, he has comphed with the rule so far as it is in Ms power to do so, and he is not to be prejudiced because the judge may not actually sign the bEl until after the time so fixed has expired.</p> <p>2. Same—presumption as to time of presentation to the judge. Where the judge has signed the bEl of exceptions, nothing appearing to the contrary, it will be presumed he would not have done so unless it had been presented to him in proper time.</p> <p>8. Same—rebutting such presumption. The mere fact that the bill of exceptions was not filed, witMn the time prescribed, does not rebut that presumption ; though it may be rebutted by proof.</p> <p>4: Mattebs of becobd — can only be made so in the court below. The Supreme Court cannot direct that to be made a matter of record which was not made so in the court below.</p> <p>5. So, if a bEl of exceptions has not become a matter of record byi reason of not having been filed in proper time, no remedy can be afforded in tMs court.</p>

Writ of Error to the Circuit Court of Peoria county. Motion by defendant in error to suppress a master’s report which was copied into the transcript of the record on file in this court.

This was a writ of error to reverse a decree in chancery, a deposition, which was suppressed on the hearing in the court below, having been copied into the transcript of the record, a motion was made in this court to strike that deposition from the record.

It appearing that an additional record had been filed in this cause by the appellee, Mr. R. E. Williams, for the appellants, entered a motion to strike the same from the files.

The bill of exceptions originally embodied in this record having been stricken out at the last April Term, for the reasons then given, an additional transcript was filed at the present September Term, containing an amended bill of exceptions; and, thereupon, Mr. R. E. Williams and Mr. T. M. Shaw, for the appellants, moved the court to strike such additional transcript from the files, insisting the same is not legally and properly any part of the record in this cause, the…

<p>1. Expiration of rule—party not necessarily in default. The mere expiration of a rule to join in error does not put the defendant in default. Until he is actually put in default by motion for that purpose, he may join in error, or interpose any proper motion, at any time, even after the expiration of the rule.</p> <p>2. Stamp on transcript of record—may he attached nunc pro tune. On a motion to dismiss an appeal because there was no revenue stamp on the clerk’s certificate to the transcript, the stamp was allowed to be attached at the time of the motion, and the motion was denied.</p> <p>3. Continuance -—for purpose of amendment. Where it is shown that there is a material discrepancy between the judgment appealed from, as entered of record, and the j udgment actually pronounced by the court, a continuance of the cause will be allowed in this court, at the instance of the appellee, who was the plaintiff below, to enable him to apply to the court below to correct the entry.</p> <p>4. Same—after expiration of a rule to join in error. And such continuance was allowed upon application made after a rule to join in error had expired, and notwithstanding a cross motion by the appellant for a reversal for nonjoinder in error.</p> <p>5. Costs — on continuance to amend the record. Where a continuance is granted in this court to enable the appellee to obtain an amendment of the record in the court below, he will he required to pay the costs of the term.</p> <p>6. Same—•where eo'ror is removed by amendment. Where the plaintiff below obtained a judgment, which was incorrectly entered, and the defendant appealed therefrom, if the appellee obtains a continuance in this court for the purpose of having his judgment corrected in the court below, and procures such an amendment as removes the error complained of, he must pay the entire costs of the proceedings in this court.</p>

This was upon writ of error upon a judgment rendered in the Superior Court of Chicago, in an action of ejectment. Pending the writ of error, a new trial was awarded in the court below, under the statute, and the judgment vacated at the instance, of the plaintiff in error.

<p>Writ of Error to the Cairo Court of Common Pleas.</p> <p>An action of assumpsit was instituted in the court below by The Wabash Railway Company against Guthrie. Upon trial, there was a verdict and judgment in favor of the company.</p> <p>Guthrie sued out this writ of error to reverse that judgment.</p> <p>Mr. O. 0. Skinner appeared in "this court, and presented a power of attorney from Guthrie, and thereupon moved the court to enter a release of errors and dismiss this .suit.</p> <p>The power of attorney, after reciting that Guthrie is the plaintiff in error in this cause, and in the decision of which certain questions concerning interests affecting street railroads are made for decision, proceeds as follows: “Row,in consideration of the premises, and an ample and full equivalent in money to me paid, whereby I am secured from loss or damage by reason of the dismissal of, or release of errors in, said cause, I, Samuel Guthrie, plaintiff in said cause, reposing special trust and confidence in Judge O. C. Skinner, of Quincy, Illinois, have made, constituted and appointed, and by these presents do make, constitute and appoint, him my true and lawful attorney, for me and in my name to appear in said cause in said Supreme Court, and assume the entire control and management thereof; and either to argue and submit the same for final decision of said court, or to dismiss the same and release all errors assigned, as he, my said attorney, may deem best; giving to my said attorney full power in the premises, the same as I now possess over the same; and hereby fully revoking all power of other attorneys to manage or control the same. And for the purposes herein expressed, I do hereby make this power of attorney irrevocable, the same being for ample and valuable consideration paid to me.”</p> <p>The following affidavit of Guthrie was presented:</p> <p>"STATE OF ILLINOIS,} , . , , Alexander county, j ss- I, Samuel Guthrie, being duly sworn, depose and say: That I am the person who was defendant in a certain cause in which the Wabash Railway company was plaintiff, lately decided by Judge Mulkey in the" Cairo Court of Common Pleas; that I have been informed and induced to believe that the decision in said cause was in my favor, and the same has not been by my authority taken to the Supreme Court, I being willing to stand by the decision as I was informed it was made. I further say, I am still and have been willing to stand and abide by the decision made by Judge Mulkey in said cause in the Cairo Court of Common Pleas.”</p> <p>Mr. Geo. W. Wall thereupon objected to the action sought to be had by Mr. Skinner, and presented a power of attorney which was given by Guthrie subsequent to that already mentioned, which, after reciting that he had given the preceding power of attorney to Mr. Skinner, proceeded thus:-“Now, therefore, know all men by these presents, that I do, by these presents, revoke the appointment aforesaid of the said Hon. O. C. Skinner, or any other person or attorney I may have heretofore appointed in said cause, and do hereby appoint in his or their stead, George W. Wall and Thomas S. Casey, my. attorneys in said cause, and do hereby authorize them or either of them, for me and in my name, .to prosecute said cause to final judgment, and otherwise do and perform any and all things they or either of them may think necessary for the prosecution of said cause.”</p> <p>Mr. Skinner insisted that the power of attorney given to him was irrevocable.</p> <p>Mr. Wall and Mr. Casey objected that the pretended power of attorney to Mr. Skinner, was insufficient to constitute him the attorney:</p> <p>First. Because it is void for maintenance. The instrument states that money was paid for it, and the authority is to prosecute the suit, as well as to release errors and dismiss.</p> <p>Second. It is void because it is fraudulent.</p> <p>Third. The first power of attorney is revoked by the second, which was given subsequently. But it is said the first is irrevocable. So it is, in terms, but the rule is, that a naked power, not coupled with an interest, is always revocable.</p>

On the second day of the April Term, 1865, of this court, Mr. Stephen R. Moore, counsel for the appellant, moved the court for a continuance of this cause, upon his affidavit, as follows: That he cannot prepare the cause for trial at the present term. The cause was tried in the Winnebago Circuit Court at the last February Term, and a decree entered during the latter part of the month of February.

<p>1. Parties—when one of several defendants in error dies. Where two payees of a promissory note recover judgment thereon, and the defendant sues out a writ of error to reverse the same, in the event of the death of one of the defendants in error, the payees in the note, pending the writ of error, the suit must be prosecuted against the- survivor alone; the representatives of the deceased defendant in error cannot be joined, in such case, with the survivor.</p> <p>3. Abstracts—a special ride upon the plaintiff in error to file an abstract of the record is necessary before the cause will be dismissed or continued for want of an abstract.</p> <p>3. If the plaintiff shall fail to file an abstract within the time required by the standing or special rule, then the other party may do so, if he desires a hearing, and have the costs taxed.</p> <p>4. In case neither party shall furnish an abstract, and no special rule has been entered, the cause will be continued or dismissed, at the discretion of the court, upon being reached on a call of the docket.</p>

<p>This was a writ of error sued out in the name of several; afterward a portion of the plaintiffs in error asked leave to dismiss the suit, as to themselves, leaving the remaining plaintiffs to prosecute their suit if they desire to do so.</p>

<p>Mr. H. K. S. O’Melveny presented a record to the court, and moved that the writ of error which should issue thereon be made a supersedeas.</p>

<p>The middle initial is not regarded as necessarily a part of the name of a party to a suit. So where a party to a writ of error was described in the record below as Andrew Bletch, and in the writ of- error as Andrew J. Bletch, it will be intended they were the same person, the contrary not being shown.</p>

On the part of the appellant, a motion was entered for a rule upon the appellee to join in error. It appeared that thirty days had not intervened between the time of making the appeal and the commencement of the present term of this court.

This was an application for a writ of mandamus. The relator filed his suggestions in writing, not verified by affidavit, representing that he has applied in due form of law to Lorenzo Leland, the clerk of this court, for a writ of error and scire facias to hear errors, to remove into this court the record of the proceedings and judgment in a certain cause lately depending in the Superior Court of Chicago, in which cause said Roberts was defendant, and one Peter Sweat was…

A writ of certiorari was awarded in this case at the instance of the defendant in error, upon his suggestion that the record should be amended; and Mr. Hay, on his behalf, asked leave to withdraw the transcript of the record from the files, in order that the amendment might be made upon the transcript.

Counsel inquired whether one party would be allowed to argue the cause orally upon the first call of the docket, and the other party have the same right upon the second call.

Mr. James L. Stark, Jr., on behalf of the defendant in error, asked leave to withdraw his joinder in error and to plead a release of errors, setting forth the grounds upon which the plea was proposed to be based.

<p>1. Motion for a new trial after judgment—its effect. The entering of a motion for a new trial in the court below, after the entry of the judgment, will not operate in any way to suspend the judgment or to impair its force or conclusiveness.</p> <p>2. Motion for a new trial—how disposed of. Ha motion for a new trial be made before judgment, the entry of the judgment will operate as a denial of the motion, without its being formally disposed of.</p> <p>8. Bond for costs—when required—insolvency of plaintiff in error. Where it appears the plaintiff in error has no property out of which the costs of the suit can be collected, he will be ruled to give security therefor.</p>

<p>Special motions are not considered by the court until the day following that upon which they are entered.</p>

In this case the return upon the writ of scire facias was as follows: “ I have served the within process by reading the same to the within named George W. Savage, on the 6th day of April, A. D. 1864. And the within named Robert Fletcher evaded service of this process by concealing himself so that I could not serve this process upon him. “DAVID 0. RIGGS, Sheriff, etc. “April 11, 1864.” At the April Term, 1864, of this court, Hr.

<p>This was an application to this court at the November Term, 1866, at Mount Vernon, for an alternative writ of mandamus, which Mr. E. M. Haines, on behalf of the relator, moved should be made returnable to the January Term, to be held at Springfield.</p> <p>Mr. Haines contended that the principle upon which this court sends the writ of mandamus to any portion of the State, as an original proceeding, in the absence of any prohibitory provision, it is believed admits of making the writ returnable to the next term in the adjoining grand division, especially where it appears that no other course can be pursued to give the relief sought. People v. Hatch and Dubois, 33 Ill. 9; People ex rel. Fuller v. Hilliard, 29 id. 413.</p>

This was a petition for an alternative writ of mandamus. The petition alleged, that, “ a bill for an act to incorporate the Wabash Railway company” having passed the general assembly, and been certified by the proper officers of the senate and house of representatives, was presented to the governor for his consideration as provided in section twenty-one of article four of the Constitution ; that more than ten days (Sundays excepted) have elapsed since the same was so…

This was a writ of error to the Circuit Court of Peoria county. At the April Term, 186 , Mr. H. M. Wead, an attorney of this court, appeared and filed a plea of release of errors, in the name of the defendants in error, and the cause submitted at the last term, upon which issue was joined, which was sent to the court below for trial.

Madison E. Hollister, Judge, presiding. This was a suit in chancery commenced in the Circuit Court of Kane county, by Erasmus Woodworth and Alvin Wood-worth against James Harvey Huntoon, Edward D. Huntoon, Mary P. Huntoon and Josiah Stevens. The cause was afterward removed into the Circuit Court of Kendall county, upon change of venue.

Jonathan Duff, Judge, presiding. This was an action on the case, brought 26th May, 1865, by Robert Rumbold against the Toledo, Peoria and Warsaw Railway Company, to recover damages for the killing of a mare and two colts, by a locomotive and train on the track of said railroad company.

Hon. John M. Wilson, Chief Justice, presiding. This was an appeal from a judgment upon a special assessment made for curbing, grading, and paving with wooden block pavement, Wabash avenue, from the south line of Randolph street to the north line of Twenty-second street, in the city of Chicago.

<p>1. Statute ot trauds—promise to pay the debt of another. Under the statute of frauds, a promise to pay the debt of another -will not bind the promisor unless it is in writing and duly signed.</p> <p>2. Order tor money—what vM constitute am equitable assignment of a debt. Where a party draws an order for money, upon his debtor, which the latter promises, verbally, to accept and pay whenever a third person, who had authority in that respect, should certify what was owing to the drawer, and the party so authorized to certify the indebtedness agrees to make the certificate so soon as it can bo ascertained, on the completion by the drawer of the contract out of which the indebtedness arises, what amount is due, there is no equitable transfer of the debt owing to the drawer of the order to the payee thereof, but it remain^ due to the original creditor.</p> <p>3. Allegations and proots—amwer of a garnishee. A ground of defense proven by a garnishee cannot avail, however just in itself, unless it is consistent with the allegations in his answer.</p> <p>4. Same—what constitutes a wianee. So where a garnishee, in his answer, denies indebtedness to the party on whose account the garnishee process was sued out, he cannot rely upon an alleged equitable assignment of his own indebtedness to a third party as a defense to the proceeding, because the defense thus relied upon is not only different from that alleged in the answer, but repugnant thereto.</p>

Benjamin R. Sheldon, Judge, presiding. This was an action of covenant, brought to the March Term, 1865, of said court by Robert S. Harris and James M. Harris against George Voltz upon the following guaranty: “ I do hereby enter security that John Widmer will do and perform all the covenants, contracts and agreements contained in the within lease; and promise and bind myself, my heirs, executors and assigns, to pay to Robert S. Harris and James M. Harris, their heirs or…

Charles E. Starr, Judge, presiding. This was a hill in chancery filed by Edward S. Massey, against Jonathan Cooper and others, in the court below, to reform a deed, and remove a cloud from certain lands in Livingston county. The bill charges, that one Charles P. Westcott, being the owner of the E. of the FT.

John M. Wilson, Chief Justice, presiding. This is an appeal from a judgment rendered in the court below upon a special assessment for ciu’bing, grading and paving, with wooden block pavement, Van Burén street, from the west line of Michigan avenue to the east side of State street, in the city of Chicago. All of the material facts in the case are fully set forth in the opinion of the court.

Madison E. Hollister, Judge, presiding. This was an action of debt, brought by the appellant against the appellee, to recover the amount of two promissory notes amounting to $12,000. The cause was tried by a jury, which resulted in a verdict for the defendant, whereupon the plaintiff appealed to this court. The facts in the case are fully stated in the opinion of the court.

<p>Appeal from the Superior Court of the city of Chicago; the Hon. John M. Wilson, Chief Justice, presiding.</p> <p>The opinion states the case.</p>

Writ of Error to the Circuit Court of Jo Daviess county; the Hon. Benjamin B. Sheldon, Judge, presiding. This was an action of trespass guare clausum fregit, brought in the court below by John Crossly against Edward Crear. The defendant filed three pleas. The first plea was the plea of the general issue, and was withdrawn.

<p>Writ of Error t'a the Circuit Court of Woodford county; the Hon. Samuel L. Richmond, Judge, presiding.</p>

<p>1. College—power of authorities to regulate its discipline. A rule of an incorporated college which forbids its students joining any secret society is not unreasonable; it neither violates good morals nor the law of the land, and is, therefore, clearly within the power of its authorities to make and enforce.</p> <p>2. College authorities possess a discretionary power to regulate its discipline, and, so long as its rules violate neither divine nor human law, this court cannot interfere.</p> <p>3. A statutory right to do certain things does not guaranty the right to a person to do them at all possible times and under all possible circumstances ; it simply means that the law does not forbid these things to be done, and such right may be surrendered.</p> <p>4. When, under such a rule, a person becomes a member of the college, he is precluded from joining any secret society, and may be expelled for its violation.</p>

T. D. Murphy, Judge, presiding. This was a bill in chancery, filed by the appellant against the appellees, in the Circuit Court of Boone county, on the 20th of January, 1864.

Writ of Error to the Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding. This was a suit in chancery commenced in February, 1864, in the Circuit Court of Tazewell county, by, John Davenport against the board of supervisors of Tazewell county and Hugh K. Alexander; and the cause was subsequently removed into the Circuit Court of McLean county, upon change of venue.

<p>1. Physician—malpractice—degree of care and skill required. The highest degree of care and skill is not required of a physician to relieve him from liability for damages resulting from his treatment of a patient; only reasonable care and skill are necessary.</p> <p>2. Same—payment of fees not essential. But if a person holds himself out to the public as a physician, he must be held to ordinary care and skill in every case of which he assumes the charge, whether in the particular case he has received fees or not.</p> <p>3. Same—not acting as a physician. Where he does not profess to be a physician, however, nor to practice as such, and is merely asked his advice as a friend or neighbor, he does not incur any professional responsibility. The case of Ritchey v. West, 23 Ill. 385, is to be understood in this sense.</p>

Writ of Error to the County Court of La Salle county; the Hon. P. K. Leland, Judge, presiding. This case arose upon an application to the County Court of La Salle county by the city of Ottawa for a judgment against certain lots in said city belonging to Jane Spencer, Eliza Spencer, John McCarty and John Pursley.

<p>1. Negligence in railroads—in reference to warning hoards, and, ringing a hell or sounding a whistle on approaching a road crossing—and herein of relative negligence. The omission on the part of a railroad company to ring a bell or sound a whistle continuously for the required distance on approaching a road crossing, renders the company liable “ for all damages which shall be sustained by any person by reason of suchneglect.” But it was not intended that this omission of duty should per se render the company liable for damages for injuries; the injury must be shown, by circumstances at least, to have been the consequence of, or caused by, such neglect.</p> <p>2. And while railroad companies should be held to a strict accountability for the omission of duties enjoined by statute, such as giving the signal continuously the required distance on approaching a crossing, and erecting and maintaining warning boards at such crossings, on the other hand, individuals must be required to do their whole duty. It is the imperative duty of persons traveling on a public road, crossed by a railroad on the same level, to use all the faculties they have, on approaching the crossing, to discover a train, not only by listening for bell or whistle, but to look out, by all means, whether there be a warning board or not to enjoin that duty upon them. They must use all reasonable means in their power to prevent accidents.</p> <p>3. And where a person, on approaching a railroad crossing with a team, does not avail himself of his sense of sight and hearing, when by the proper exercise of it he could have avoided a collision, he will be regarded as unusually negligent on his part, though the bell was not continuously rung or the whistle sounded.</p> <p>4. In this case, which was a suit to recover damages for an injury to the plaintiff and his team by a collision with a locomotive at a road crossing, while a majority of the court gave no opinion on the question of relative negligence, Mr. Justice Breese, who delivered the opinion, regarded the conduct of the plaintiff, in failing to exercise proper caution in approaching the crossing, as contributing very essentially to produce the accident, and says that in cases quite similar to this, very respectable courts have ruled against the plaintiff, manifesting the same degree of negligence, and reviews the cases on that subject.</p> <p>5. New tbials—excessive damages—and, herein of the measure of damages in actions for personal injuries'. A wagon and two-horse team, being driven by the owner along the highway, came in collision with a locomotive at a road crossing; the horses were killed, and were worth $300 or $320, the wagon was injured $35 or $40, the harness $25. The owner lost the toes off his left foot. He paid for surgical attendance $138.50, and nursing twenty-six days $78. He was a farmer. It did not appear the company’s employees acted willfully. A verdict of $5,875 for the plaintiff was regarded at “first blush ” outrageously excessive, and the result of passion and prejudice, rather than of cool reflection; and a new trial was awarded on that ground.</p> <p>6. It is a familiar principle, that in actions for personal injuries, juries may give exemplary or punitive damages in cases of willful negligence or malice, hut it is requisite such a case should be made.</p> <p>7. In the absence of an intention to do the injury, however, a different measure of damages should be resorted to by the jury.</p> <p>8. When railroad companies procure the services of the best men that can be had, it would seem unreasonable to punish them immoderately for a neglect on the part of their employees of a statutory duty, even if it could be safely affirmed the accident was wholly occasioned by this neglect.</p> <p>9. While the case of a railroad train, running regardless of law, demands at the hands of a jury, something more in the way of damages than a mere individual, and this for the protection of the public, yet the verdict should not be so excessive as to show it was the result of improper motives.</p> <p>10. While every traveler on a highway crossed by a railroad is entitled to the benefit of the signal required by the statute, at the same time, it cannot be said that a party who could both see and hear the train in time to avoid it, and did not use the proper means, or any means, to avoid it, should have vindictive damages.</p> <p>11. Refusal to gkant new tbials—may le assigned for error. By the common law, the refusal to grant a new trial could not be assigned for error, and such was the law in the State until the passage of the act of July 21, 1837, allowing exceptions to be taken to decisions of the Circuit Courts overruling motions for new trials, and assigning error thereon. This statute bestows upon the Supreme Court the power to supervise every verdict that may be rendered in any of the courts of record in this State; this control, so bestowed upon this court, is unqualified and unlimited.</p> <p>12. Same—limitations of the power. Yet with a view to abridge this power, the court has, in numerous cases, laid down certain rules by which it would be governed in disposing of such cases; and the rulings upon that subject are reviewed in the opinion in this case.</p> <p>13. Same—verdict against the evidence. In this case, which was a suit against a railroad company to recover damages resulting from a collision of a train with a wagon- and team at a road crossing, the court said, looking upon the testimony of the company in the most favorable light, the jury might have inferred there was a reasonably strict compliance with the statute requiring a signal to be given on approaching a crossing, if they believed the witnesses, and nothing appeared to show why they should not believe them, yet as other witnesses gave evidence quite variant from that of the company, they would not invade the province of the jury by disturbing their finding in that regard, which was against the company, even though their finding might be against the weight of evidence.</p> <p>14. Weight of evidence—how ascertained. The weight of evidence does not depend upon, nor is it made up of numbers of witnesses, but of the matter sworn to, and the position of the witnesses, and their attention and capacity to hear or see, as the case may be, are elements to be taken into consideration in weighing testimony.</p> <p>15. Exceptions—when necessm'y. The ruling of the Circuit Court, refusing to grant an application for a change of venue, cannot be assigned for error unless an exception was taken thereto.</p> <p>16. And the same may be said in respect to the decision of the court refusing to suppress portions of certain depositions.</p>

Madison E. Hollister, Judge, presiding. This was a bill in chancery, filed by the complainant in the court below, to vacate a judgment obtained by the defendant against him, at the November Term, 1862, of the Circuit Court of La Salle county.

<p>Appeal from the Circuit Court of La Salle county; the Hon. M. E. Hollister, Judge, presiding.</p> <p>The facts in this case are fully stated in the opinion.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit brought in the court below, by Albert T. Ames and Ambrose D. Turner, against the Chicago and North-western Railway company. A trial resulted in a finding and judgment for the plaintiffs. The defendant thereupon took this appeal. The facts of the case are fully presented in the opinion of the court.

E. S. Williams, Judge, presiding. This was an action of assumpsit instituted by the appellees against the appellant in the court below, to recover the sum of $255.64 as a balance due them upon an account for goods sold and delivered. The appellant claimed a set-off of $549. The cause was tried by a jury, who found a verdict for $233.64, for appellees, being the full amount of their claim less $22.00.

<p>Appeal from the Circuit Court of Bureau county; the Hon. M. E. Hollister, Judge, presiding.</p> <p>This case is sufficiently stated in the opinion.</p>

Van H. Higgins, Judge, presiding. The Marine Bank of Chicago filed in the County Court of Cook county, a claim against the estate of James H. Ferry, deceased, founded on the following promissory note: “$1,700.00. Chicago, July 22d, 1857. On the seventh day of November next we promise to pay the Marine Bank or order seventeen hundred dollars, for value received. Signed, GEO. W. DAVENPORT, JAMES H. FERRY, H. A. JOHNSON.” “ Indorsed, D. $566.66. Rec’d Dec. 16, ’57.

Madison E. Hollister, Judge, presiding. This was an action of trover brought in the Circuit Court by David Seely against John Schneider for the alleged conversion of eight hundred and fifty-two flour barrels. It appears that the plaintiff had purchased of the defendant some lots of ground, under a paroi agreement, which he was to pay for by delivering flour barrels, at forty cents apiece, at the defendant’s mill.

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>The opinion of the court contains a statement of the case.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. William W. Heaton, Judge, presiding.</p> <p>The facts in this case are fully stated in the opinion of the court.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. The opinion of the court contains a sufficient statement of the case.

Writ of Error to the Circuit Court of McLean county; the Hon. John. M. Scott, Judge, presiding: On the 10th day of April, 1863, an indictment was returned into the Circuit Court of Logan county, against Abraham Mustek, charging him with the larceny of a horse. Subsequently, the cause was removed, upon change of venue, into the Circuit Court of McLean county, where a trial was had at the December Term, 1865, resulting in a verdict of guilty.

<p>Limitation 05 1839 — whether it may he invoiced to recover possession temporarily abandoned. While it is true that the second section of the limitation act of 1839 cannot be used as a sword, unaccompanied by possession, yet when the benefit of the bar, under the statute, has once been acquired, the right of possession thereby attaches to the occupant and remains with him, even if he temporarily leaves the possession, and enables him to recover the possession as against all persons as to whom his bar, if set up in defense, would have been available. This is the effect of all limitation laws.</p> <p>2. Instructions. It is proper to refuse instructions which have no application to the case.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. This was an action of assumpsit commenced in the court below by Jefferson T. Rogers and Robert R. Jefferson, as indorsees, against Martin 0. Walker and James Moore, as drawers of two certain bills of exchange. Pending the suit, Jefferson and Moore died, and the cause proceeded in the names of the survivors, a trial resulting in a verdict and judgment for the plaintiff.

Charles R. Starr, Judge, presiding. This was an action on the case brought in the court below by Zachary L. Taylor against the Chicago and Alton Railroad company. A trial resulted in a verdict and judgment for the plaintiff. The defendant thereupon appealed. A statement of the case will be found in the opinion of the court.

<p>1. Lie^n by consignee upon goods in transitu. The fact that a consignee of goods hate accepted bills drawn upon him by the consignors, upon the understanding/ that the goods should be shipped to him to be sold to meet the bills, does not'give to the consignee a lien upon the goods while in transitu, they not haviing come into his possession, either constructively, by bill of lading, or by actual! delivery.</p> <p>2. C. transitu lrriers—consignor—right of the consignor of goods to stop them in A consignor of goods which have been shipped to a designated conBignee, has a right to direct a change in their destination at any time while the goods remain in the possession of the carrier, and the carrier is bound to obey such direction.</p> <p>3. And where the consignor sells the goods while in transitu, to a third person, other than the original consignee, and directs the carrier, while he still has the goods in his possession, to deliver them to such purchaser, a refusal by the carrier to obey such direction will render him liable to the owner for any loss resulting therefrom.</p> <p>4. And even where the original consignee has accepted bills drawn upon him by the consignor, the right of the latter to stop in transitu is not taken away.</p> <p>5. Conversion—w7iat is evidence of a conversion. Where a consignor of goods which had been shipped to a designated consignee, sold them to a third person while the goods were in transitu, and directed the carrier, before the goods reached their destination, to deliver them to such purchaser and not to the original consignee, a refusal by the carrier to comply with a proper demand for the goods made by the purchaser would be evidence of a conversion by the carrier, for which he would be liable in damages to the purchaser in an action of trover.</p>

T. D. Murphy, Judge, presiding. This was an action of assumpsit brought by Henry Roche against Daniel Pierce. It appears that Roche had rented some land from Pierce, and had planted a crop of which he was to have one-third. He alleges that Pierce appropriated the entire crop to his own use, and to recover his portion thereof, among other things, Roche instituted this suit.

<p>Writ of Error to the Circuit Court of Warren county; the Hon. John S. Thompson, Judge, presiding.</p> <p>The opinion of the court contains a statement of the case.</p>

<p>Appeal from, the Circuit Court of Knox county; the Hon. John S. Thompson, Judge, presiding.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. Charles E. Starr, Judge, presiding.</p> <p>The opinion of the court states the case.</p>

E. S. Williams, Judge, presiding. This was an action of assumpsit brought by Mills Olcott against Charles T. Boggs, Joseph McPherson, and others, described as being members of the “ Mechanics’ Savings Bank association of Chicago.” The object of the suit was to fix upon the defendants a liability for the deposit account of the plaintiff. The general issue was pleaded, and the defendant McPherson also put in a special plea under oath, denying the partnership.

<p>Writ of Error to the Circuit Court of Kankakee county; the Hon. Charles E. Starr, Judge, presiding.</p> <p>The opinion states the case.</p>

Joseph E. Gary, Judge, presiding. This was an action of trespass, brought by Michael Fitzgerald, by his next friend, Austin Fitzgerald, against Eugene O’Reily, for an alleged assault, and pushing and knocking the plaintiff out of a wagon in the city of Chicago, whereby his leg was broken. There was only one witness, Patrick Flynn, who testified, on the part of the plaintiff, that the defendant committed the alleged act.

<p>Appeal from the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding.</p> <p>The opinion of the court contains a statement of the case.</p>

<p>Writ of Error to the Circuit Court of Mercer county; the Hon. M. Williamson, Judge, presiding.</p> <p>The opinion of the Court contains a statement of the case.</p>

<p>Sale op chattels—where the vendor has no right to sell, no title passes. On the sale of chattels, the subject of sale must belong to the vendor, and he can se^ @ more t-*lan the nheres* which he lawfully has.</p> <p>3. So if a bailee of goods for a particular purpose transfers them to another in contravention of that purpose, no title will pass, and the general owner may recover them, even though the transfer be to a Iona fide vendee.</p> <p>g Same—try the transfer of documentary evidence of title. Nor will the V6n<^ee chattels 'acquire a title if the vendor has none to transfer, even when the sale is made or ..confirmed hy the transfer of a hill of lading or other document of the same nature, symbolizing and describing the property sold.</p> <p>14. Warehouse receipts—whether they are negotiable. So receipts given hy a warehouseman for chattels placed in his possession for storage purposes, are not, in a technical sense, negotiable instruments, hut they merely stand in the place of the property itself, and a delivery of the receipts has the same effect in transferring the title to the property, as the delivery of the property, neither more nor less.* </p> <p>5. Where warehouse receipts for a lot of pork were delivered to a purchaser, indorsed in blank by the original holder, and were afterward delivered hack to such original holder for a specific purpose, a subsequent transfer of the receipts by such holder, to a third person, even to a bona fide vendee, in contravention of such purpose, will not -pass the title to the property which they represent, and the general owner, the original purchaser, may, notwithstanding such transfer, maintain replevin for the property against the warehouseman, in, whose possession it still remains.</p> <p>6. Such is the common law rule, and the act of 1851, to prevent frauds by warehousemen, was not designed to change it.</p> <p>7. Had the owner of the property placed the warehouse receipts in the hands of the original holder for any other than a legitimate purpose, or if he were fairly chargeable with any negligence by means of which the one having the receipts in possession was enabled to impose upon the party to whom he transferred them, a different rule might prevail.</p> <p>8. But it was not negligence on the part of the owner because he omitted taking new receipts in his own name after he purchased the property, and putting them in the hands of Ms vendor, instead of delivering to him the old receipts wMch were given in Ms name.</p> <p>9. Nor, it seems, was it necessary that the purchaser should give the warehouseman notice that he had purchased the pork.</p> <p>10. But where the party to whom the receipts were transferred without authority, made no inquiry at the warehouse in reference to the ownership of the property, the question whether the owner should have given notice of his purchase, or taken out new receipts, could not properly arise, as, not having inquired at the warehouse, he could not be injured by the want of notice there, and it would not belong to him to complain.</p> <p>11. Evidence—its admissibility. Where the owner of the property, the warehouse receipts for wMch had been transferred without authority, brought replevin against the warehouseman, a receipt given to the plaintiff for those warehouse receipts by the party to whom they were delivered, stating the purpose for which they were delivered, was prima facie admissible in evidence on behalf of the owner.</p> <p>12. Same—motion to exclude evidence, on a specific ground. If upon testimony given after such receipt was admitted in evidence, a question should arise as to its admissibility by reason of its being alleged to bear date subsequent to the wrongful transfer of the warehouse receipts, it seems a motion should be made to exclude the receipt upon that ground, so as to afford an opportunity for an explanation of the question of dates.</p> <p>13. Affidavit in replevin—its requisites. An affidavit in replevin stated that the plaintiff "being duly sworn, says on oath, that he is lawfully entitled to the possession of 500 barrels of prime mess pork, for wMch he brings suit in replevin against Horace Burton, and which is about to be replevied, and which said pork is wrongfully detained from this deponent by the said Horace Burton,” etc. This was sufficient.</p>

<p>1. Temporary aleuory—pendente lite. The courts of chancery in this State, having the power to grant divorces, have, also, the incidental power to allow temporary alimony pendente lite.</p> <p>2. Alimony pendente lite, is a common law right. It was an established right in England, when we adopted the common law. It is no less a common law right because it grew up under the usages of the Ecclesiastical Court, and the courts of chancery are bound to enforce it as much as any other provision of the common law.</p> <p>3. Practice—time for determining motions—giving time for counter proof. Where a motion is made in a cause against a party who is in court, he cannot complain that the court proceeds to hear and determine the same without extending te him time to meet it, when he has not asked for further time to produce counter evidence, nor has even advised the court he intended to resist the motion.</p> <p>4. If a party against whom a motion is made in the progress of a cause, desires to meet proof filed in support of the motion by counter evidence, and requires further time to enable him to do so, he should ask further time, and show by affidavit that he can make the proof, and that further time is necessary.</p> <p>5. Attachment eor contempt—whether notice thereof is necessary. Where the defendant in a suit in chancery for divorce, neglects to obey an order therein to pay alimony pendente lite, an attachment may be issued against him for contempt, without any notice to him that an attachment would be asked, or any rule to show cause why it should not be issued.</p>

Benjamin R. Sheldon, Judge, presiding. This was an action brought originally before a justice of the peace, in Jo Daviess county, by the city of Galena against the Illinois Central Railroad company, for the violation of an ordinance of the city, in obstructing with a freight car one of the streets of the city. The cause was removed into the Circuit Court by appeal, where a trial was had, resulting in a verdict and judgment for the plaintiff.

Appeal, from the Circuit Court of Kankakee county; the Hon. Charles R. Starr, Judge, presiding. This was an action commenced before a justice of the peace in Kankakee county, by Eeuben Putnam against Case Wadley, to recover upon a lost note. The cause was removed into the Circuit Court by appeal.

<p>1. Possession of land—in what manner proven. Possession may be proven by inclosure, when it is co-extensive with the inclosure; or by showing paramount title, which draws to it the possession, in contemplation of law, to the boundary lines of the tract, if it is unoccupied by another. Or, it may be shown by proving actual occupancy of a portion of the tract, with a deed under which the possession is held, and in such case, the deed proves or explains the possession as extending to the lines called for by the deed.</p> <p>2. But a party by merely showing that he is in the actual possession of a portion of a legal division or subdivision of land, does not thereby prove possession of the whole of such division or subdivision; and it matters not whether the claim is for the entire tract or only a portion of it.</p> <p>3. Trespass qua/re clausum fregit—plaintiff must prove possession. To maintain trespass for a wrongful act committed upon land, the plaintiff must show that he was in possession of the land when the alleged act was done, either actually or constructively, according to the rule above laid down.</p> <p>4. Trespass or case—which the proper remedy. Trespass will not lie against a party for digging a ditch upon his own land, whereby water is thrown upon the land of the plaintiff; the remedy in such case is by an action on the case, for consequential damages.</p>

Writ of Error to the Circuit Court of Will county; the Hon. Sidney W. Harris, Judge, presiding. The opinion, of the court contains a sufficient statement of the case.

E. S. Williams, Judge, presiding. This was an action of assumpsit, brought in the court below by Edward Mendel against J. Lewis Lee and Charles W. Clayton, upon an alleged guaranty of the following promissory note: “$2,667.47. “Chicago, January 2,1862. “ Six months after date I promise to pay to Edward Mendel or bearer twenty-six hundred, sixty-seven 47-100 dollars, for value received, with interest at six per cent. “(Signed) P. B. ROBERTS.” Upon the back of this note,…

Writ of Error to the Circuit Court of Marshall county; the Hon. S. L. Richmond, Judge, presiding. This was an action of assumpsit commenced in the Circuit Court of Woodford county, by Peter C. Redding against Asa B. Israel. The cause was afterward removed into the Circuit Court of Marshall county, upon change of venue. The declaration contained several special counts upon the following instrument: “ $645.25.

John A. Jameson, Judge, presiding. This was an action of assumpsit brought in the court below, by John H. Gale against Joseph McPherson and Elias B. Stiles.

<p>Appeal from the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding.</p>

John A. Jameson, Judge, presiding. This was an action of assumpsit brought in the court below by Charles M. L. Walker against Joseph McPherson and Elias B. Stiles. The ground of the action is in all respects similar to that alleged in the case of McPherson v. Gale, ante, p. 368. A trial resulted in a verdict and judgment for the plaintiff. The defendant McPherson appealed. The opinion of the court contains a sufficient statement of the case.

E. S. Williams, Judge, presiding*. This was an action of assumpsit brought in the court below by B. F. Carver & Co., for the use of Coddington Billings, against David Dows & Co. A trial resulted in a verdict and judgment for the defendants. The cause is brought to this court by the plaintiffs by appeal. The opinion of the court contains a sufficient statement of the case.

<p>1. New trial—verdict contrary to evidence—inspection of original papers. Suit was brought against two as joint makers of a promissory note, and a recovery was had upon the ruling of the court below that the two names appearing on the note were connected by the character “ &.”</p> <p>2. On error, the judgment was reversed, because upon inspection of the original note the Supreme Court forrad that the supposed character between the names, was the letters “pr.,” an abbreviation of “per,” and the note was therefore the separate obligation of only one of the parties.</p>

<p>1. Subscription for public purposes—power of public authorities to malee the contract. Under an act providing for an election upon the question of the removal of a county seat, and providing that in the event of the vote being in favor of removal, the board of supervisors shall erect or procure suitable buildings for the public offices, and a suitable place for holding courts, the board of supervisors may, in their official capacity, accept a contract of subscription from individuals, to be paid on condition the vote shall be favorable to removal, for the purpose of aiding in the erection of the public buildings contemplated by the act, and such a subscription will be valid and binding upon the parties making it.</p> <p>2. Former decision. The case of The County Commissioners of Bcmddlph county v. Jones, Breese, 237, discussed in reference to its bearing on this question.</p> <p>3. Subscription/ct public purposes—of the consideration to support it. Any benefit accruing to a promisor, is a sufficient consideration to support the promise.</p> <p>4. So where the owner of land at and adjacent to the contemplated place of removal of a county seat, makes a subscription to be paid upon the condition that, at an election which is to be held under an act in relation to that subject, the vote shall be in favor of removal, for the purpose of aiding in the erection of public buildings contemplated by the act, and the property would be greatly enhanced in value by the location of the seat of justice upon it, that would be deemed a sufficient consideration, so as to make the promise binding, in the event of removal.</p> <p>5. And generally, in regard to the binding effect of voluntary subscriptions of this kind, it may be said, when advances have been made, or expenses or liabilities incurred by others, in consequence of such subscriptions before any notice of withdrawal, this should be deemed sufficient to make them obligatory, provided, the advances were authorized by a fair and reasonable dependence on the subscriptions.</p> <p>6. So where the party making such a subscription, published it to the people who were to vote upon the question of the removal of the county seat, and in a published address to them, urged that as showing that the people would not have to bear the burden of the erection of public buildings, as a result of the vote being for removal, it might with propriety be said that the expenses of the election and liabilities consequent thereon were made in consequence of such subscription, and for that reason it should be binding.</p> <p>7. It is further stated as a correct principle, that in general, subscriptions on certain conditions, in favor of the party subscribing, are binding where the acts stipulated as conditions are performed.</p> <p>8. So, where the subscription was made on condition that the county seat should be removed to a certain place, and that place was, at the time, the property of the party making the subscription, the condition was in his favor; and the condition being consummated by the removal and location of the county seat at the contemplated place, there is no reason, under the rule cited, why his subscription should not be binding.</p>

Writ of Error to the Circuit Court of Putnam county; the Hon. S. L. Richmond, Judge, presiding. This was a proceeding in the court below, by sci/re facias upon a¡ recognizance. It appears that Charles Welsh and John McDonald were, in March, 1864, brought before two justices of the peace, in Putnam county, and examined upon a charge of having in their possession and passing counterfeit bank-bills.

Writ of Error to the Circuit Court of the county of Tazewell; the Hon. James Harriott, Judge, presiding. This was a bill for an injunction filed 26th December, 1865, by James Phillips and others, the defendants in error, to restrain the collection of a tax, imposed by the town of Delevan, for the purpose of refunding moneys which had been previously paid by individuals residing in the town, to raise volunteers for the army.

Writ of Error to the court of common pleas of the city of Aurora; the Hon. Richard G. Montony, Judge, presiding. The opinion of the court contains a sufficient statement of the case.

<p>Appeal from the Circuit Court of La Salle county; the Hon. Madison E. Hollister, Judge, presiding.</p> <p>The case is stated in the opinion of the court.</p>

On the 12th day of January, 1857, the Manhattan Life Insurance company, a corporation existing by virtue of the laws of the State of Mew York, and having its principal office in that State, insured the life of Samuel B. Pomeroy for $5,000, for the benefit of his wife, Marion Pomeroy. Pomeroy and his wife at the time resided in this State, and the application was made in Mrs. Pomeroy’s name to the local agent of the company, residing in Chicago.

<p>Appeal from the Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding.</p> <p>The opinion states the case.</p>

Writ of Error to the Recorder’s Oourt of the city of Chicago ; the Hon. Evert Vah Buren, Judge, presiding. This was upon an indictment charging John Jackson with having knowingly received stolen goods, in the city of Chicago, in Cook county, in this State. The defendant was found guilty, and judgment was entered accordingly. He brings the case to this court upon bill of exceptions by a writ of error.

<p>1. Partnebshtp—where that relation exists, as between the pa/rties themselves, and as to third persons. As a general rule, when the agreement between parties engaged in business together, provides for a division of profits simply, the law will infer a partnership.</p> <p>2. But even in such a case, the first and controlling element in the contract is, the intention of the parties. If from the agreement, any thing appears which repels the inference of such an intention, then, as between the parties, they are not partners.</p> <p>3. The rule is different, however, as to third persons, for as to them the general rule is, that a participation in the profits renders them partners.</p> <p>4. But this is where there are no other opposing circumstances. If, from the circumstances or the agreement of the parties, it satisfactorily appears that the share of the profits is not taken by the party sought to be charged in the character of a partner, but in the character of an agent, or as a compensation for services or advances made, the rule is otherwise.</p> <p>5. There is no absolute rule of law that a participation in profits renders the participants partners; it is only a presumption of law, which prevails in the absence of controlling circumstances to the contrary.</p> <p>6. But the rule as to the intention of the parties governing their relations with each other, does not prevail as to third persons, where the parties have held themselves out to the world as partners. In such case, they are estopped to deny the existence of a partnership.</p>

<p>1. Administration of estates—exhibiting claims prematurely. A party who died intestate' had, in her life-time, executed a bond of indemnity to another, the damages depending on a contingency which did not happen until after the lapse of two years from the granting of letters upon the obligor’s estate. It was held, that the obligee’s claim did not accrue within the two years, and no suit could be instituted upon the bond within that time, and consequently his claim was barred, except as to future discovered property. And it seems an attempt to exhibit the claim within the two years, and before it accrued, would not avail the obligee so as to enable him to participate in assets which had been inventoried or accounted for within that time.</p> <p>2. Same—-future discovered estate—from, what time a creditor’s rights in respect th&reto relate. Where a creditor of an estate recovers a judgment after the lapse of two years from the granting of letters of administration, and upon a claim which did not accrue until after the two years had elapsed, it is error to confine him, in the satisfaction of his judgment, to assets which might be discovered and inventoried after it was rendered; he is entitled to participate in such assets as might be discovered and inventoried after the lapse of two years from the granting of the letters.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.</p> <p>The opinion of the court contains a statement of the case.</p>

John M. Scott, Judge, presiding.. This was a bill in chancery filed by Jesse W. Fell and others, in the McLean Circuit Court, against Elias Heller and others. The object of the bill was to obtain a resurvey of township twenty-four north, in range three, east of the third principal meridian. The commencement of this proceeding was authorized by an act of the general assembly, adopted for the purpose of conferring power to have a resurvey made in this mode.

E. S. Williams, Judge, presiding. This was an action on the case brought in the court below by Adelia M. Brown, against John Stephani and Jacob Stephani, to recover for injuries alleged to have been received by the plaintiff by falling through a defective grating placed in the sidewalk by the defendants, adjacent to their premises in the city of Chicago.

S. L. Richmond, Judge, presiding. This was an action of forcible entry and detainer, commenced by Robert Forsyth against Peter E. Spurck, before a justice of the peace in Peoria county, and removed by appeal into the Circuit Court, where a trial resulted in a verdict and judgment in favor of the plaintiff.

Writ of Error to the Circuit Court of Grundy county. This was a suit in chancery commenced by William T. Hopkins, in the Grundy Circuit Court, against Elihue Granger, Addison Weeks, Elias Shipman and Samuel G. Taylor.

Van H. Higgins, Judge, presiding. This was an action of ejectment instituted in the court below by Henry H. Handy against John Miller. A trial resulted in a finding and judgment for the plaintiff. The cause is brought to this court by the defendant, by appeal. The opinion of the court contains a sufficient statement of the case.

Joseph E. Gary, Judge, presiding. This was a proceeding for a mandamus, to compel the opening of a highway, alleged to have been established under the provisions of art. 24, township act, Session Laws 1861, p. 11, et seg. The case was before this court at the April Term, 1865,* when it was remanded.

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Benjamin R. Sheldon, Judge, presiding.</p> <p>The facts in this case are sufficiently stated in the opinion.</p>

<p>1. Pbomissoby note—what constitutes. The following instrument was held to be a negotiable promissory note, under our statute, and should be stamped as such:</p> <p>“ §525. Conger, August 28,1865</p> <p>“ Due G. S. Warren on corn five hundred and twenty-five dollars.”</p> <p>“ J. Jacques.”</p> <p>2. Stamp act—who may object that an instrument is not properly stamped In an action upon a promissory note, against the maker, it appeared the instrument bore a revenue stamp, but not adequate to the character of the paper, and it being the fault and omission of the defendant, who made the note, he was not allowed to take advantage of his own wrong and default, by objecting to its being received in evidence on that account.</p> <p>Same—unstamped instrument admissible under the common counts. A promissory note, though it be inadequately stamped, is admissible in evidence under the common counts.</p> <p>4. Rescission op a contract by one party—the other may acquiesce — estoppel as applied to the former. A party sold a quantity of corn in cribs, and there was a constructive delivery to the buyer, and after he had taken away a portion of the corn, the seller gave him notice that he could have no more of it. It was held, that the buyer had a right to acquiesce in this claim of the seller to control the corn, and doing so, he might well refuse to pay for such portion as he had not received'. It was similar to a case of equitable estoppel. And, in a suit by the seller against the buyer upon a note given for the price of the corn, these facts were sufficient to defeat a recovery.</p>

Writ or Error to the Recorder’s Court of the city of Chicago ; the Hon. Evert Van Buren, Judge, presiding. The opinion of the court contains a sufficient statement of the case.

This was a hill in equity filed by Benjamin Field, Amzi Benedict and Peter W. Field, in the Superior Court of Chicago, against George W. Flanders, Helson B. Horton, Pliney M. Perkins, Clark B. Horton, Orson Sheldon, for an account by the assignees of Sheldon, and for an account by Flanders for funds he had received by sale of the property assigned by Sheldon under execution.

<p>Appeal from the Circuit Court of La Salle county; the Hon. Madison E. Hollister, Judge, presiding.</p> <p>The facts in this case are sufficiently stated in the opinion of the court.</p>

Isaac G. Wilson, Judge, presiding. This was a bill in chancery filed in the Court of Common Pleas of the city of Aurora, by Josiah D. Dunning, against the city of Aurora, Caroline Gates, R. Wilder Gates, Thomas Golden, Charles Hoyt, Robinson L. Carter and Columbus Finney. The bill was filed to have certain buildings alleged to have been erected in a public street, and claimed to be also a private nuisance, so found and removed and abated.

Writ of Error to the Circuit Court of Lake county; the Hon. E. S. Williams, Judge, presiding. At the September Term of the Circuit Court of Cook county, John Kennedy, Patrick Fleming and William Corbett were indicted for the murder of one Patrick Maloney. At a subsequent term of that court, on motion of Kennedy, he was ordered to have a separate trial.

E. S. Williams, Judge, presiding. This was an action in the case brought by the appellee in the court below against the appellant for ejecting him from the ears at a place other than a regular station. It appears that the appellee purchased a ticket to Bridgeport, getting on the ears at Chicago. The train stopped at Bridgeport, and the station was publicly called in the cars. Appellee did not get off.

Erastus S. Williams, Judge, presiding. This was an action of trespass quare clausum, fregit, brought by Emma E. De Puy, in the Circuit Court of Cook county, against Peter Page, Frederick Becker, and a number of other persons. The declaration proceeded for breaking and entering a close and committing wrongs thereon.

<p>1. Action for money had rnd received—whether a payment was voluntary or compulsory. Money which has been voluntarily paid upon a judgment cannot he recovered hack, even though the judgment be void, when the payment was made with a full knowledge of all the facts and circumstances of the case, and in ignorance only of the party’s legal rights.</p> <p>2. A payment is not to be regarded as compulsory, unless made to relieve the person or property from an actual and existing duress imposed upon him by the party to whom the money is paid.</p> <p>3. So, where a judgment has been rendered against real estate for the nonpayment of an assessment made for a public improvement, and the owner of the real estate pays the judgment, when there is no precept or execution by which its collection can be enforced, such payment will he regarded as being voluntarily made, not under legal compulsion.</p> <p>4. Assessments for deepening and widening the Chicago river —power of the city in respect thereto. The city of Chicago has no authority under its charter to make an assessment to deepen the Chicago river, hut it has power, under the act of February 27,1845, amendatory of its charter, to make an assessment to widen the river.</p> <p>5. And to accomplish the widening of the river, it may be found necessary to excavate the bed, and so deepen the channel. Deepening might he a mere incident to. widening, depending on various circumstances.</p> <p>6. Same—effect of a combined action when there is a want of power as to a part. But, the city having the power to widen the river, if, in acting under that power, it included in its action a matter not within its cognizance, it might be void quoad hoc-, but not void as to that of which it had jurisdiction.'-</p> <p>7. Attacking judicial proceedings collaterally. Where a court has jurisdiction its action cannot he attacked collaterally.</p>

This was an action of assumpsit brought by Nathaniel S. Tucker and Henry Mansfield against John Durham, as assignees of the following promissory note: “ $2,200. Peoria, August 26th, 1864. “ One year after .date, I promise to pay to the order of Wm.

Madison E. Hollister, Judge, presiding. This was an action of trespass guare clausum fregit, brought by Minard L. Waterman, in the Grundy Circuit Court, against John Gray, ¡Reuben ¡Raymond, Christopher 0. Massey, Charles ¡Noble, Robert McFarland and Thomas Gray. The declaration charged the tearing down a fence of plaintiff, and destroying his corn and other growing grain. A number of pleas were filed and issues were formed.

E. S. Williams, Judge, presiding. This was a suit in chancery, instituted in the court below, by John Wallwork against William M. Derby and Henry S. Monroe. The object of the bill was, to set aside a sale and conveyance made by the defendant Monroe, to the defendant Derby, of two tracts of land in Cook county, under a deed of trust from one Charles Boadnight and wife to the said Monroe, with power of sale, to pay certain notes from Boadnight to Derby.

Wept op Ekbob to the Circuit Court of Jo Daviess county; the Hon. Benjamin R. Sheldon, Judge, presiding. At the August Term, 1862, of the court below, Patrick O’Hare was tried upon an indictment for murder, and convicted of the crime of manslaughter. A new trial was refused, and he was sentenced to the penitentiary during his natural life. There was no bill of exceptions taken in the case, and the reason therefor is set forth in an affidavit of Hr.

John S. Thompson, Judge, presiding. This was an action of ejectment, brought in the court below, by Crayton H. Conger against Alva K. St. John, to recover the north-east quarter of section twenty-seven, in township ■ thirteen, north of range two, east, in Knox county. A trial resulted in a finding and judgment in favor of the plaintiff. The defendant thereupon took this appeal. The opinion of the court contains a sufficient statement of the case.