Volume 41 — Illinois Reports

This was an action of trespass m eb armis, brought by Abraham Hartrunft, in the Superior Court of Chicago, against Allen C..Yundt. The declaration counts for the seduction of plaintiff’s wife by defendant. The plea of not guilty was filed. Afterward the venue was changed to the Kane Circuit Court. A trial was had by the court and jury, which resulted in a verdict against defendant, and the jury assessed the damages at the sum of $5,000.

<p>Appeal from the Recorder’s Court of the City of Chicago; the Hon. Evert Van Burén, Judge, presiding.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

<p>Writ of Ebbob to the Circuit Court of Peoria county; the Hon. It. Williamson, Judge, presiding.</p>

Sidney W. Harris, Judge, presiding. This was an action of assumpsit brought by Francis Singer, in the La Salle Circuit Court, to the June Term, 1865, against Solomon Degan, Jacob Degan and Samuel Degan. The declaration complains of defendants as partners, and as such purchased of him seventeen head of cattle, at eight cents per pound, live weight, delivered at Chicago, and to be paid for on delivery.

Madison E. Hollister, Judge, presiding. This was a suit in chancery, instituted in the court below by Claudius B. King, against William H. W. Cushman, Hervey King and Samuel B. Gridley.

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

Madison E. Hollisteb, Judge, presiding. This was a bill in equity, brought by John K. McCahan, John Dreswell, John K. McCahan, Jr., Thomas S. McCahan, Mary Buoy and James K. Morehead, in the Bureau Circuit Court, against Alexander Campbell and S. J. Greenwood.

<p>Appeal from the Circuit Court of Bureau county; the Hon. Madison E. Hollister, Judge, presiding.</p>

Erastus S. Williams, Judge, presiding. This was an action of trespass for an alleged assault and battery, brought in the court below by Charlotte A. Dickey against John McDonnell. A trial resulted in a verdict and judgment in favor of the defendant. The plaintiff brings the cause to this court by appeal.

Wbit of Eeeob to the Circuit Court of Will county; the Hon. S. W. Habéis, Judge, presiding. This was a bill in equity filed by Alonzo Leach, in the Will Circuit Court, against Charles H. Pine, Joel George, John H. Quinn, Cephas H. Horton, Albert Jewett and Benjamin C. Busley. Subsequently the bill was amended.

<p>1. Carriers—liability for damages by reason of delay in transportation —■ duty of the shipper. Where a lot of cattle is placed in cars provided for them by a railroad company, for transportation, in time for the next regular cattle train, the station agent of the company at the place of shipment having knowledge of the fact, it is the duty of the company to carry the cattle by the next train, and by their neglect so to do they will be liable for whatever damage may result to the cattle by reason of the delay.</p> <p>2. Where the train which should have taken the cattle, passed the station at which they were waiting between ten and eleven o’clock at night, and the owner allowed the cattle to remain in the cars until nine o’clock the next morning before he took them out, he was not chargeable with any want of proper diligence in removing them. It was not his duty, although he did not then intend to allow the company to complete the carriage, at once, upon the passing of the train at such an hour in the night, to take the cattle out of the cars to prevent injury to them by being thus confined.</p> <p>3. Measure oe damages in such a case. The damages resulting to cattle from being confined in cars an improper length of time, are matter, in a great degree, of opinion. The fact that the cattle were without food, under circumstances where the owner could not properly be expected to provide it, is a proper element to enter into the calculation of damages.</p>

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

Writ oe Error to the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding. This was a suit in chancery commenced by James M. Potter, Ephraim Potter, Mary Spicer, William Potter, Sterling Potter and William Potter, to the April Term, 1864, of the Wood-ford Circuit Court, against John Potter, William Potter, Albert Potter, Sereney Warner, Sinford Warner, Martha Warner, Joseph B. Warner, Catharine Harner, James Hamer, Albert Potter and Marian Potter.

Van H. Higgins, Judge, presiding. This was an action of assumpsit brought in the court below by the Great Western Oil company against Andros B. Stone, to recover the amount of a call on the subscription of the defendant to the capital stock of the company, in contemplation of its becoming incorporated under the act of February 18, 1857, authorizing “ the formation of corporations for manufacturing, mining, mechanical or chemical purposes.” The defendant pleaded the general…

Writ of Error to the Circuit Court of Tazewell county; the Hon. S. L. Richmond, Judge, presiding. This was a bill in chancery exhibited in the court below by Alfred Bright against Kesia Bright, the widow, and Harvey Bright and others, the children and co-heirs at law, with the complainant, of Caleb Bright, deceased.

Wiirr of Eekok to the Superior Court of Chicago. This was an action of assumpsit, by Edward W. Mitchell, in the Superior Court of Chicago, to the May Term, 1865, against hi. P. Lassen. The declaration contained six special counts, and the common counts for goods sold, and the money counts and an account stated.

<p>1. Instructions — must he based on the evidence. It is error to give instructions when there is no evidence on which to base them.</p> <p>2. New trial — verdict against the evidence. When there is no evidence to support a verdict, a new trial will be granted.</p> <p>3. Agency—party dealing with another as agent of a third person, must know his authority. An agent of a railway company applied to the owner of a dredging and pile driving machine, for an estimate of the cost of certain work the company proposed to have done. The owner of the machine said he would send Mm a proposition, and did, soon after, send a proposition in writing to the agent of the company, stating the terms upon wMch the machine could be had. To this proposition no reply was made, but, in about two weeks thereafter, a tMrd person came to the owner of the machine, representing, as the latter alleges, that he came on behalf of the company, and procured tho machine and crew belonging thereto, to be sent to do the work spoken of. In point of fact the person who obtained the machine was not an agent of the company but a contractor who had engaged to do the work for the company. It was held, the company was not liable to the owner of the machine for the work done therewith; it was Ms fault that he did not ascertain who was to be responsible.</p>

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

Theodore D. Murphy, Judge, presiding. This was an action of assumpsit, brought by James R. Yarwood, in the court of Common Pleas of the city of Elgin, in Kane county, in which a writ of attachment was sued out against Albert Cook and B. C. Brownell. A declaration, in the usual form, was filed. The venue of the cause was afterward changed to De Kalb county. Cook then filed a plea in abatement, which the court, on motion, struck from the files.

<p>1. Contribution—as between the several makers of a note. When one of several makers of a note pays the note, he can compel, by suit, his co-makers to contribute their proportion.</p> <p>2. Evidence—under the general issue. In an action by one of several makers of a note, who claims to have paid the note, against his co-makers for contribution, a special plea setting up that after the note was given, it was agreed between the owner of the note and the makers, that a part of the makers should pay one-half the note, and the others the remaining half, and the party thus paying his share to be discharged from further liability, and that the note was paid according to such agreement, was held bad as amounting only to the general issue.</p>

Writ of Error to the Superior Court of Chicago; the Hon. Van H. Higgins, Judge, presiding. This was an action of assumpsit brought in the court below, by Andrew J. Brown, against Harvey B. Hurd and others, upon a promissory note. A trial resulted in a judgment in favor of the defendants. The cause is brought to this court by the plaintiff on writ of error.

<p>Writ of Error to the Superior Court of Chicago; the Hon. Van H. Higgins, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. Benjamin R Sheldon, Judge, presiding.</p> <p>This was an action of trespass vi et armis and for false imprisonment, brought by Bernard Donnelly, in the Jo Daviess Circuit Court, to the March Term, 1862, against Robert S. Harris, Daniel S. Harris and John C. Hawkins. The declaration contained two counts, one for a false imprisonment and the other for an assault and beating of plaintiff. Defendants filed a plea of not guilty.</p> <p>On the trial, it appeared that plaintiff and defendants got into an altercation near the recruiting office, in Galena. That it originated in reference to the alleged failure of some volunteers to obtain their bounties. The dispute seems to have been between plaintiff and one McMaster, when Robert S. Harris struck plaintiff several blows, from the effects of which he seems to have bled pretty freely. "Witnesses state that plaintiff had said nothing to Harris when he struck him.</p> <p>It appears, that plaintiff was taken to the common jail of the county by Hawkins, without warrant or mittimus, and was confined there, being locked up at night in the felons’ cell and permitted to occupy the hall during the day, from the 11th of August, 1862, until the 1st of September following. He was then taken to Chicago and confined in Camp Douglas as a prisoner about two or three months.</p> <p>The jury found the issues for the plaintiff, and assessed the damages at $50 ; and he thereupon moved the court to set aside the verdict and grant a new trial, because it was too small, because the jury found against the instructions, and because the court misdirected the jury. The court overruled the motion and rendered judgment on the verdict, from which plaintiff appeals to this court and asks a reversal of the judgment.</p>

W. ~W. Heaton, Judge, presiding. This was a bill in chancery, filed by David L. Hough in the Circuit Court of La Salle county, and on a change of venue sent to the Circuit Court of Lee county, where it was heard and determined. The prayer of the bill was for specific performance of a contract to convey laud. On a final hearing the bill was dismissed, and this appeal is taken to reverse that decision.

Writ of Ebbob to the Circuit Court of Cook county; the Hon. Ebastus S. Williams, Judge, presiding. This was an action of trespass' on the case brought in the court below by Honora Henchey, as administratrix of the estate of John Henchey, deceased, against the city of Chicago, to recover damages for causing the death of the said John Henchey.

Writ ok Ebbob to the Circuit Court of Bock Island county; the Hon. Iba O. Wilkinson, Judge, presiding. This was an action on the case for slander, brought by Dyke-man Shook, in the Henderson Circuit Court, against Jesse S. Harbison. The declaration contained a number of counts, charging that defendant had accused plaintiff of having committed perjury, while others averred that he had charged him. with having sworn falsely.

Appeal, from the Circuit Court of Kankakee county; the Hon. Charles K. Stare, Judge, presiding. This was an action of ejectment commenced in the court below, by the Catholic Bishop of Chicago, against Charles Chiniquy, Achilee Chiniquy, Augustine Fouche, Bierie Moráis, Gustave Demars, Lewis Mercier and Abram Peltier, a trial of which resulted in a verdict and judgment for the plaintiff. The cause is brought to this court for review by the defendants.

Jesse 0. Sort on, Judge, presiding. On the 24th of February, 1860,1.

Wbit of Ebbob to the Superior Court of Chicago. This was a suit in chancery commenced by Adam Kuchenbeiser, Elizabeth Kuchenbeiser, and Henry Hay, who sues by his next friend, Conrad Weisgerber, in the Superior Court of Chicago, against Charles Beckert, Elizabeth Beekert and Peter Hoffman.

<p>Writ of Error to the Circuit Court of Livingston county; the Hon. Charles E. Starr, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Livingston county; the Hon. Charles E. Starr, Judge, presiding.</p>

Writ of Ebbob to the Superior Court of Chicago. On the 20th day of October, 1845, William H. Brown and H. Griswold Hubbard, as executors of Elijah 1L Hubbard, deceased, instituted proceedings in the County Court of Cook county to foreclose a mortgage by scire facias, the mortgage having heen executed to the testator in his life-time, on the 21st day of June, 1837, by John B. F. Russell and Cornelia Russell, his wife, to secure the payment of certain sums of money, as…

W. W. Heatoe, Judge, presiding. This was an action of replevin for the recovery of a large quantity of goods, brought by James H. Bowen, George S. Bowen, Chauncey J. Bowen and George Whitman, in the Lee Circuit Court, against George L. Schuler. The declaration was for the wrongful taking and detention of the goods. The pleas were, non c&pit, non detvnet— property in defendant and property not in the plaintiffs.

Joseph E. Gaby, Judge, presiding. This was an action of assumpsit, brought in the court below by Henry Haskin against Edwin Haskin, to recover the value of 800 barrels of salt, which the plaintiff claims he was obliged to furnish upon a warehouse receipt, issued by him, in his own name, but as the agent, and while he was carrying on the business of the defendant.

<p>Writ op Error to the Circuit Court of McHenry county; the Hon. Isaac Gr. Wilson, Judge, presiding.</p>

This was an action of covenant brought by George W. Wood, in the Superior Court of Chicago, to the October Term, 1865, against Justin Bowman. The summons was tested on the 20th of September, 1865; it was served on defendant on the 22d, and was returnable on the 2d day of the following October. The declaration was filed on the 22d day of September, 1865, with a copy of the instrument upon which the suit was brought.

<p>1. Contracts—where a party fails to execute his work according to contract— rights and remedies of the parties. Where a party has built a waterwheel for a mill for another, the latter furnishing the materials therefor, and the builder agreed that the wheel should do certain specified work and should be satisfactory to the other party, and the builder had notice, formal or informal, but substantial, that the wheel did not do the required work, and was not satisfactory, he has no cause of action for his labor, either upon a quantum meruit or otherwise, his only remedy being to pay for the materials in the wheel furnished by the other party, and take it away.</p> <p>2. And in such case, the party for whom the wheel was built, and who furnished the materials, is not bound to return the wheel or permit it to be taken away, without payment for the materials, nor to incur any expense in removing the wheel.</p> <p>3. The doctrine of election to return or keep the article, has no application in such a case. So, the party for whom the wheel was built would not become liable to pay the contract price for building it, by failing to return it in a rea</p> <p>• sonable time. Where there is an express warranty that an article is of a certain quality and shall answer a specified purpose, it is not necessary that the purchaser, before he can bring suit, should offer to return the property. He may bring suit for damages, or in a suit against him for the price, he may claim such damages by way of recoupment or set-off.</p> <p>4. Without giving notice of the defect in the wheel, and without an offer to return it, he would be entitled to recoup his damages for breach of the contract in building the wheel.</p> <p>5. «Even a refusal to permit the builder to take away the wheel would not render him liable for the contract price. Where there is an express warranty that the article made shall do certain specified work, in a suit for the price the vendee may recover his damages by way of recoupment, and in some cases defeat a recovery by showing that the article was worthless for the purpose intended.</p>

<p>Allegations and proofs—of an original and a collateral promise. In an action for goods alleged to have been sold and delivered by the plaintiff to the defendant, if it appears the goods were sold upon the personal promise of the defendant to pay for them, and the credit was given to him, he will be liable, but if the goods were sold to another, then the defendant will not, in such action, be liable, even though he had agreed to be responsible for the payment.</p>

Wett of Ebbob to the Circuit Court of Tazewell county; the Hon. James Haebiott, Judge, presiding. This was an action of covenant, brought by Elizabeth Wolston and Abraham Wolston, in the Tazewell Circuit Court, to the June Term, 1865, against William A. Tinney.

Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. This was an action on the case brought in the court below by Joshua A. Brackett against William Cox, George A. Hall and J. H. Marsh, for the recovery of damages for injhries alleged to have been received on being run over by the horses of the defendants while the same were running away through the carelessness and mismanagement of the latter!

<p>1. Fencing railroads—whether the necessity is obviated by an embankment. The necessity of fencing a railroad at a given point is not obviated by there being an embankment at that place from twelve to twenty feet in height, it not appearing that the embankment was sufficient to prevent stock from getting upon the track.</p> <p>2. And the necessity for a fence in such a case would be shown by proof that cattle had got upon the road.</p> <p>3. Measure oe damages—in suit against a railroad for hilling stock. In a suit against a railroad company for killing the cattle of the plaintiff, where it appears the weather was warm and the cattle when found were swollen and unfit for beef, the plaintiff is entitled to a' verdict for their full value.</p>

Madison E. Hollister, Judge, presiding. This was an action of ejectment, brought by Murray McConnel, in the Bureau Circuit Court, to the September Term, 1864, against Herman Deininger and Lewis Deininger, for the recovery of the S. E. 23, 15 H. B., 7 E., 4 prin. mer. The general issue was filed by defendants. A trial was had by the court, a jury having been waived by consent of parties.

Madison E. Hollister, Judge, presiding. This was a suit commenced before a justice of the peace in Bureau county, by Harriet Crandall, against the Chicago and Rock Island Railroad company, to recover a claim of eighty-six dollars for cattle belonging to the plaintiff, and alleged to have been killed by a train of the company upon their road. The cause was removed into the Circuit Court by appeal, where a trial resulted in a verdict and judgment for the plaintiff.

<p>Appeal from the Circuit Court of La Salle county; the Hon. Madison E. Hollister, Judge, presiding.</p>

Charles R. Starr, Judge, presiding. This was an action on the case, brought by John McClannon, in the Iroquois Circuit Court, against the Toledo, Peoria and Warsaw Railway company, to recover for killing six head of cattle on the 17th day of September, 1865, on their road, with their engines and cars, at a place where they were by law required to fence their road, but had entirely failed. A plea of the general issue was filed, and issue joined on the plea.

<p>1. Assumpsit—for money liad arid received—when it lies. The action of assumpsit for money had and received, is an equitable action, in which the plaintiff can recover from the defendant so much money as he can show the defendant, ex equo et bono, ought not to retain.</p> <p>2. Practice m the Supreme Court—who may object to the character of the remedy resorted to. Where a party sued out a writ of error to reverse a judgment in his favor, the defendant objected that the action brought was not the proper remedy, but, as he made no such objection in the court below, and did not prosecute the writ of error, it was deemed unnecessary to decide whether the action was the proper one on the.facts.</p> <p>8. Measure oe damages—in suit to recover back the purchase-money on failure of title to land. Where a purchaser of land, who holds the obligation of his vendor to make him “a good and sufficient warranty” deed for the premises, has been actually evicted therefrom under an outstanding paramount title, and lost the property, the measure of damages in an action to recover back the purchase-money, is the price paid for the property and six per cent interest thereon.</p> <p>4. But if there was only a failure of title as to the land, and the purchaser has purchased in the outstanding title from the true owner, and has never been disturbed in his possession of the premises, the measure of damages would be the value of the title he had to purchase in order to protect himself in the enjoyment and possession of the property .which he had purchased from the defendant, and to prevent an actual eviction, and any costs and expenses he may have been compelled to lay out in so purchasing title and protecting his possession.</p> <p>5. Error will not always reverse — of improper instructions. The giving of an erroneous instruction will not he ground for reversal, if the verdict of the jury was just and proper.</p>

Writ of Ebbob to the Circuit Court of La Salle county; Hon. Madisoit E. Hollistee, Judge, presiding. This was an action of covenant, instituted by the plaintiff in error, in the court below, against the defendant in error, for an alleged breach of warranty in the title to certain premises.

Hon. Isaac Gr. Wilson, Judge, presiding. This was an action of replevin brought by Leverette S. Chittenden, before a justice of the peace of Kendall county, against John Evans, for the recovery of a colt. A trial was had, resulting in a judgment in favor of defendant, from which plaintiff prosecuted an appeal to the Circuit Court of that county. Afterward the cause was removed by change of venue to Dn Page county.

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

Writ of Error to the Circuit Court of Livingston county. This was a suit commenced by John Carlton against Isaac Ames and others, before a justice of the peace in Livingston county.

Erastus S. Williams, Judge, presiding. This was an action of forcible detainer, commenced by Timothy B. Blackstone, Joel A. Hatteson, Samuel L. Keith, Edward I. Tinkham and John Hossack, before a.justice of the peace, against William Wilborn. A judgment by default was entered by the justice of the peace. The case was removed by appeal to the Circuit Court.. A motion was there entered to dismiss the appeal for the want of a sufficient affidavit of merits.

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding.</p>

Chakles E. Stabb, Judge, presiding. This was a suit in chancery, instituted in the court below by Billings P. Babcock against William Cleary, to reform a deed executed by the complainant to the defendant, in reference to an alleged mistake therein, and to enjoin a suit at law commenced by the latter against the former, for a breach of one of the covenants in such deed.

P. K. Leland, County Judge, presiding. This was an action of assumpsit brought by Hugh Mines, to the June Term, 1865, of the La Salle County Court, against Jeremiah Moore, for the recovery of four promissory notes executed by the latter to the former. The notes bore date the 24th of September, 1856, and amounted in the aggregate, exclusive of interest, to the sum of $1,039. The declaration is in the usual form.

<p>1. Attorneys at law—requirements as to their conduct. When a clear case is made out against an attorney at law, of malpractice, or of conduct unbecoming an attorney and a gentleman, the court will visit upon him the heaviest punishment they can inflict. But the case must be clear, and free from doubt, not only as to the act charged, but as to the motive.</p> <p>2. Members of the legal profession cannot be too circumspect in their coriduct, nor can they claim immunity for acts which, though free from moral stain, yet sully their professional honor.</p>

<p>1. Trespass—when it will lie—right of the owner in fee of land, who is entitled to possession, to enter by force. The owner of real estate has a right to enter upon and enjoy his own property, if he can do so without a forcible disturbance of the possession of another.</p> <p>2. But, though the owner in fee be wrongfully kept out of possession, he I cannot, in this State, be permitted to enter against the will of the occupant./ The common law right to enter, and to use all necessary force to obtain pos] session from him who may wrongfully withhold it, has been taken away by our statute of forcible entry and detainer.</p> <p>3. That statute, not in terms, but by necessary construction, forbids a forcible entry, even by the owner, upon the actual possession of another. |</p> <p>4. Nor is the remedy afforded by the statute — an action for the recovery of the possession — the only remedy given to the party upon whom a forcible” 1 entry may be made by the owner. Under the statute, such an entry is unlaw- J ful; and being unlawful it is a trespass, and an action for the trespass will lie.</p> <p>5. Such an entry being forbidden by the statute, which has taken away the 1 common law right of forcible entry by the owner, it must be held illegal in ' all forms of action.</p> <p>6. And any entry is forcible, within the meaning of this law, that is made / against the will of the occupant.</p> <p>7. A landlord, however, has the right to enter upon the possession of his tenant for certain purposes, as to demand rent, or to make necessary repairs, and the action of trespass guare clausum by the tenant against the landlord, even for the recovery of nominal damages, is confined to those cases where an action of forcible entry and detainer will lie under our statute.</p> <p>8. Measure op damages — in trespass against the owner of land for a forcible entry thereon. Although the occupant of land may maintain trespass against the owner for a forcible entry, yet he can only recover such damages as have directly accrued to him from injuries done to his person or property, through the wrongful invasion of his possession, and such exemplary damages as the jury may think proper to give. He cannot recover for any damages to the real estate.</p> <p>9. And, for the mere entry of the landlord upon the possession of his tenant, holding over, unaccompanied by any trespass upon either the person or the personal property of the occupant, only nominal damages can be recovered, because the plaintiff has no legal right to the possession.</p> <p>10. Of exemplary damages — where there wt'e two suits, in different rights, for the same trespass. Where there are two actions of trespass brought for injuries to the person of a feme covert, one in the names of the husband and wife jointly, and the other in the name of the husband alone, and the circumstances and acts out of which the question of punitive damages arises, are the same in both cases, it being one and the same transaction, if on the trial of the former suit those circumstances of aggravation were submitted to the jury, while, in strict law, exemplary damages are recoverable in both cases, because the suits are in different rights, yet, on the trial of the second case, the jury, in considering the same circumstances of aggravation with the view to punitive damages, should also consider that they had been submitted on the former trial.</p> <p>11. Mitigation of damages —in trespass against the owner of land for a forcible entry. In trespass, by the occupant of land against the owner, for a forcible entry on the premises, the fact that the defendant was the owner, and entitled to the possession, cannot be regarded in mitigation of the actual damage suffered by the plaintiff, but may be considered in mitigation of exemplary damages.</p> <p>12. Evidence — in trespass by husband and wife for injuries to the latter. In an action of trespass by husband and wife for personal injuries to the latter, evidence of injury to the property of the husband at the same time, is inadmissible, except so far as may be necessary to explain the assault on the person of the wife.</p> <p>13. Instructions. Although an instruction may, in itself, be strictly correct, yet, if, in view of the circumstances surrounding the case, it would be likely to mislead the jury, its effect in that regard should be guarded against by other instructions.</p>

<p>Writ of Error to the Circuit Court of De Kalb county; the Hon. Isaac G. Wilson, Judge, presiding.</p> <p>This was a bill in equity, filed by Wm. B. West and Hira; Barrett, to the September Term, 1859, of the De Kalb Circuit Court, against Lydia Low, John Bailey, Wm. Bailey, Frederick W. Bailey and George Bailey.</p> <p>The hill alleges, that Thomas R. Green, prior to the 21st of February, 1849, had purchased and was the owner of the W. -J- S. W. qr. sec. 27, T. 40, FT. R. 5 E. 3 Prim Her. That he on that date conveyed the same to Wm. Bailey, Jr., for $100. That Wm. Bailey, Jr., at the same time agreed with his father, Wm. Bailey, Sr., to convey to him on the payment of the $100 and interest. That, in August following, Wm. Bailey, Jr., died, leaving Lydia, his widow, who, in February, 1854, executed a deed of conveyance for the land to Wm. Bailey, Sr. In the following month of June, Wm. Bailey, Sr., and wife, conveyed the lands to Frederick W. Bailey. Afterward, in October, 1855, the elder Bailey also died.</p> <p>Afterward, in October, 1856, Frederick executed to Wm. J. Hunt a trust-deed, to secure the payment of $109. Afterward, in October, 1857, he executed another deed of trust on the land to Maybourn, to secure the payment of $642, due to Barrett. That Lydia Bailey, before the commencement of the suit, married William Low. That Frederick conveyed the land in May, 1858, to George Bailey, and in December, 1858, Hunt sold the land on the trust-deed and West became the purchaser.</p> <p>The bill prays that defendants be decreed to pay complainants the amount paid by West at Hunt’s sale, and retain the land, or that the land be conveyed to complainants.</p> <p>A guardian ad litem was appointed for the minor defendants, who answered, and requires proof of the allegations of the bill. Lydia Low answered, denying the allegations of the bill, but exceptions were sustained to it, and the bill was taken as confessed as to her and the other adult defendants, and referred to a master to take and report proofs. A hearing was had and a decree rendered, granting the relief sought, and that West stand seized of the premises. To reverse which, the record is brought to this court, and various errors are assigned.</p>

Erastus S. Williams, Judge, presiding. This was an action of assumpsit brought in the court below by William H. Bruns and Charles Wachsmuth against George Miller and ¡Robert Stafford, to recover the price of a quantity of high wines alleged to have been purchased by the plaintiffs for the defendants. A trial resulted in a judgment for the plaintiffs, from which the defendant took this appeal.

Erastus S. Williams, Judge, presiding. This was an action of covenant brought in the court below, by Frederick Schmidt and August Binzo, against the Peoria Marine and Fire Insurance company, upon a policy of insurance.

Evert Van Bueen, Judge, presiding. This was an action of assumpsit brought by William Mooney, in the Eecorder’s Court of the city of Chicago, to the February Term, 1866, against Dennis McCarthey. The declaration contained the common counts. Service was had, and defendant filed the plea of the general issue. A motion was subsequently entered for a continuance for want of a sufficient bill of particulars filed with the declaration.

<p>1. Scire facias on recognizance—what must be averred. It is not necessary that it should be alleged in a scire facias on a recognizance, that the principal cognizor was indicted by the grand jury, at the term of the court named in the recognizance.</p> <p>2. Recognizance—at what “ term" the principal should appear. Where a recognizance is conditioned for the appearance of the principal cognizor at the “ next term ” of the court, it must be understood to mean the next term at which criminal business can be transacted, and does not refer to a term which may happen to intervene, and which by law must be devoted exclusively to civil business.</p>

<p>1. Special assessments—street railways—benefits must be assessed upon all who are directly benefited—principle of the Lamed ease applied. The rule adopted in the case of the City of Chicago v. Loomed, 84 Ill. 267, that the constitutional provision, requiring equality of taxation, applied as well to special assessments for public improvements, as to any other form of taxation, extends to the mode of distributing the burden among those who are to he benefited; so that, when the burden is to be thus imposed, it must be imposed upon all who are directly benefited by the proposed improvement, in the ratio of benefits, since it would he a violation of the equality sought to he secured by the Constitution to exempt a portion of those benefited, and thereby increase the burden upon the remainder.</p> <p>2. Or, referring the right to make these special assessments, rather to the right of eminent domain than to the taxing power, as was done in the Loomed case, and permitting the just compensation required by the Constitution to he made in benefits, still the assessments must be made in the ratio of advantages or benefits, that is, they should be imposed equally upon all property equally benefited, or they will he unlawful.</p> <p>3. A city ordinance which seeks to exempt a portion of the property to he benefited from paying for its portion of street improvements is not only in violation of the constitutional provision securing equality of taxation, but also of that other principle of constitutional law, that the property of one person cannot he taken for the use of another, either with or without compensation.</p> <p>4. Nor can the legislature confer upon a city the power to make a valid contract with the owner of any interest in property which should contribute toward the expense of such improvements, which shall have the effect to exempt him from his portion of the burden.</p> <p>5. Same—what character of interest or estate is soügeet to such assessments— street railways. An assessment for the improvement of a street must be laid upon all property that is substantially and directly benefited. This necessarily excludes all personal property of a movable character. But every estate, in land, adjacent to the street, whether in fee, for life or for a term of years, may he increased in value by the improvement, and would be subject to the assessment.</p> <p>6. A street railway company occupying a portion of a street with their track and in the use thereof, under a charter, and a contract with the city authorities, have a franchise and right of occupancy which is a property of a character to he substantially benefited by the paving of such street; and in proportion as it is thus benefited it should contribute its share to the cost of the improvement, in common with the other property upon the street</p>

Writ of Error to the Circuit Court of Jo Daviess county; the Hon. Benj. R. Sheldon, Judge, presiding. This was an action of trespass m et ctrmis for false imprisonment, brought by Micholas Roth, in the Jo Daviess Circuit Court, to the May Term, 1863, against Bradner.Smith. The declaration contained two counts, to which defendant filed the plea of not guilty, upon which issue was joined.

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

Writ of Error to the Circuit Court of De Kalb county; the Hon. T. D. Murphy, Judge, presiding.

This was a suit in chancery, brought by John McNab, in the Superior Court of Chicago, against Horatio Y. Heald and a large number of other defendants. The bill alleges that complainant recovered judgment against defendant Heald, to the amount of $30,575.70; that execution was issued thereon and returned no property found. That there was still due on the judgment $7,000.

<p>Writ of Error to the Circuit Court of Bureau county; the Hon. M. Williamson, Judge, presiding.</p>

Madison E. Hollister, Judge, presiding. John D. Olmstead and Thomas Herford, in June, 1860, filed, a bill in equity in the La Salle Circuit Court, against Charles S. Dole and James H. Dole. This case was previously before the court, and is reported in the 36th Ill. 150, and the statement there given, with that in the opinion of the court, presents the facts of the case.

Writ of Error to the Circuit Court of Peoria county; the Hon. M. Williamson, Judge, presiding. This was an action of assumpsit brought in the court below by Edward P. Morgan and Ralph R. Root, against Erastus Peet, as the indorser of a promissory note, executed by Bur-dick and Peet to Erastus Peet, and indorsed by the latter to one Earl, and by Earl to the plaintiffs. A trial resulted in a verdict for the defendant.

T. D. Murphy, Judge, presiding. This was an action of debt brought in the court below by Albert G. Robb, John H. Ball and William Phelps, for the use of George L. Wood, against Hiram E. Whitney, Charles 0. Boynton and George Walrod.

Writ of Error to the Circuit Court of Peoria county; the Hon. M. Williamson, Judge, presiding. This was a suit originally commenced before a justice of the peace in Peoria county, by Cyrus H. McCormick against Edward I. Moss, Gilbert Hathaway and John Moss. The cause was removed into the Circuit Court by appeal. The question in this court is presented upon the following agreed state of facts: “ This is a suit brought against the securities of E. J. Moss, constable.

Writ of Error to the Circuit Court of Mercer county; the Hon. John S. Thompson, Judge, presiding. On the 30th of December, 1858, Jabalón Tyler filed his petition in the Mercer Circuit Court, to enforce a mechanics’ lien, on a lot in the town of Keithsburg. It alleges that James D. Coburn was the owner in fee of the lot, on the 1st of November 1858, at which time he entered into a contract with petitioner to furnish bricks to build a cellar wall under a dwelling-house.

<p>Appeal from, the Circuit Court of Jo Daviess county; the Hon. Benjamin E. Sheldon, Judge, presiding.</p>

<p>Wbit of Ebbob to the Circuit Court of Woodford county; the Hon. S. L. Biohmokd, Judge, presiding.</p>

This was an action of replevin brought by James H. Reese, in the Superior Court of Chicago, to the December Term, 1860, ágainst John G-. Mitchell, for the recovery of a number of articles of personal property. The declaration was in the usual form, for taking and unlawfully detaining the goods. Defendant filed a plea of non cletmet, and a plea of property in the defendant. On these pleas issue was joined.

Writ oe Error to the Circuit Court of Cook county; the Hon. Erastüs S. Williams, Judge, presiding. The case is stated in the opinion of the court. The question presented is, whether a creditor of an estate may recover costs in a suit against the administrator, commenced in the Circuit Court after having made a demand, but without having presented his claim to the probate court at a term which had been appointed by the administrator for that purpose.

Joseph E. Gaky, Judge, presiding. This case was originally before this court at the April Term, 1864, and again, upon a re-hearing at the April Term, 1865, when the judgment of the court below, which was in favor of the plaintiff, Evans, was reversed and the cause remanded. That case is reported in 37 Ill. 442.

Writ of Ebbob to the Circuit Court of Winnebago county; the Hon. Benjamin B. Sheldon, Judge, presiding. This was a petition for a writ of certiorari, filed by John M. Mack, in the Winnebago Circuit Court, against the highway commissioners of the town of Seward, in the county of Winnebago, and State of Illinois, to compel them to certify the record of the location of a public highway in that town. The writ was awarded, returnable on the 17th day of February, 1862.

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. William W. Heaton, Judge, presiding.</p>

Whit of Ebbob to the Superior Court of Chicago. This was an action of assumpsit commenced in the Recorder’s Court of the city of Chicago, by Tilden and McCoy, against Henry S. Rosenthal & Co., to recover damages resulting to the plaintiffs in the refusal of the defendants to accept or receive one hundred and seventy-eight head of cattle, alleged to have been sold and tendered by the plaintiffs to the defendants, and which the latter refused to accept.

Writ of Error to the County Court of De Kalb county; the Hon. Edward L. Mato, Judge, presiding. This was an action of. assumpsit, brought by Charles L. Ingersoll, in the County Court of De Kalb county to the June Term, 1865, against Daniel P. Banister. The declaration contained the usual common counts. The plea of the general issue only was filed. A trial was had at the return term by the court and a jury.

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Benjamin K. Sheldon, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding : This was an action of assumpsit brought in the court below, by Krengel & Seiferd, partners, against Cornwells & Elliott, also partners, to recover for goods sold and delivered by the plaintiffs to the defendants. The defendants pleaded a set-off, which rested upon an alleged contract made between the parties, by letter. The correspondence was as follows: “ Chicago, June 28, ’64. “ Messrs.

Charles H. Starr, Judge, presiding. This was an action of assumpsit, commenced in the Livingston Circuit Court, to the September Term, 1864, by William Kime against Joseph A. Kime. The declaration contained the usual common counts, to which the plea of non-assunvpsió was filed and issue formed. A trial was had by the court and a jury at the October Special Term.

Benjamin B. Sheldon, Judge, presiding. This was an action of replevin brought in the court below by Harrison Bell against William Farrar, sheriff of Jo Daviess county, to recover 854 sacks of oats, marked “ H. B.” Among other pleas, the defendant pleaded property in Bobert H. McClellan, as president of the Bank of Galena, and property in the Bank of Galena.

Writ of Error to the Superior Court of Chicago. This was an action of trover brought by Charles M. Taylor against the plaintiffs in error. A trial by jury at the September Term, 1865, resulted in a judgment for the plaintiff for six hundred and fifty dollars and costs. The defendants below now prosecute this writ of error. The declaration alleged the conversion of a dwelling-house, the property of the plaintiff, hv the defendants, to their own use.

Mabion Williamson, Judge, presiding. This was an action of assumpsit commenced by Selden F. White, James F. White and William Gr. White, in the Warren Circuit Court, to the September Term, 1857, against Joseph Weaver. The declaration was on a guaranty of the payment of a promissory note, executed by Samuel Stanley, payable to plaintiffs, for the sum of three hundred and forty dollars and ten cents, payable five months after date, and given on the 31st of October, 1856.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding.</p> <p>This was an action of covenant brought by Mary Larkin, William Larkin, Joshua Larkin, Sarah Larkin, Eveline Larkin, James Larkin, John Larkin, Berzilla Larkin and Lydia Larkin by Joshua Larkin, their next friend, in the Cook Circuit Court, against George F. Harding and Hezekiah M. Wead. The declaration counts on the breach of a covenant of warranty contained in a deed of conveyance for a quarter section of land to Curtis Warden and Albert Warden, and that their father, by conveyance, became the assignee of their title and the covenant of warranty, and they succeeded to the same rights by the death of their father.</p> <p>That defendants had not kept and performed their covenants, but had broken the same by suffering plaintiffs to be evicted from the land by paramount title. Pleas were filed and issues formed. A trial was had by the court and jury, who found the issues for the plaintiffs and assessed the damages at $967. Defendants entered a motion for a new trial which was overruled, and judgment rendered on the verdict. Plaintiffs bring the case to this court on error, and the defendants by appeal, and they assign errors on their several records.</p>

T. D. Murphy, Judge, presiding. This was a suit in chancery instituted in the court below, by Martin Bathrick against Josiah Dunning and others. A decree was rendered in favor of the complainant, from which the defendant, Dunning, took this appeal.

Jesse O. Horton, Judge, presiding. This case was originally heard at the April Term, 1865, when an opinion was delivered, which is reported in 37 Ill. 284. At the April Term, 1866, a rehearing was granted, upon grounds not presented or considered upon the former argument, and which are set forth in the opinion of the court.

<p>Mechanics’ LIEN—subsequent purchasers — severing the building from the land, A purchaser of a building from the owner, pending a proceeding to enforce a mechanics’ lien created for its erection, will take the title subject to the lien which may be established in that proceeding. And if such purchaser sells the house to another, and induces him to remove it to another lot, he will hold the proceeds of the sale as a trust-fund, liable to discharge the lien.</p>

<p>1. Default—within what time a motion must he made to set it aside. A motion to set aside a default comes too late at a term subsequent to that at which the judgment was obtained.</p> <p>2. Process—where the summons claims too small an amount of damages. Where an alias summons in assumpsit, upon which service was had, claimed a smaller amount of damages than was claimed in the praecipe the original summons and the declaration, it was regarded a clerical error which the court, from which the writ issued, would correct on motion, before or after judgment.</p> <p>3. The damages laid in the declaration is the limit of the plaintiff’s recovery, and where a judgment by default was rendered upon service of such alias summons which claimed a less sum in damages than was laid in the declaration, and the judgment exceeded the amount claimed in the summons, but was less than the sum laid in the declaration, it was held, there was a simple variance between the declaration and the summons, which not being taken advantage of in the court below, could not on error.</p>

Charles E. Stare, Judge, presiding. This was an application to the County Court of Livingston county for judgment against certain lands for non-payment of school taxes. The proceeding was removed into the Circuit Court by appeal, where judgment was rendered against the lands, from which some of the owners took this appeal. The opinion of the court contains a sufficient statement of the case for an understanding of the questions decided.

M. Williamson, Judge, presiding. This was a proceeding by scire facias upon a recognizance, which was entered into by Sylvester Empie, as principal, and William W. O’Brien and Thomas Cratty, as sureties.

John S. Thompson, Judge, presiding. This was an action of ejectment brought in the court below by Thomas Newell against Lewis HcKibben and John HcKibben, a trial of which resulted in a finding and judgment in favor of the plaintiff. The defendants thereupon took this appeal. The facts of the case are set forth in the opinion of the court.

Writ of Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding. This was an action brought by Henry L. Daggett against David A. Gage, upon a promissory note executed by the latter to Henry T. Helm, and assigned by him to the plaintiff. A trial resulted in a verdict and judgment for the defendant. The plaintiff thereupon sued out this writ of error. The facts are sufficiently stated in the opinion of the court.

Mariou Williams on, Judge, presiding. This was an action brought by Sarah Rich before a justice of the peace of Peoria county, against Valentine Powell. A trial was had, and plaintiff recovered a judgment, from which defendant appealed to the Circuit Court. A trial was subsequently had in that court at the October Term, 1865, by the court and a jury.

<p>Writ op Ebbob to the Circuit Court of Cook county; the Hon. Ebastus S. Williams, Judge, presiding.</p>

Writ of Error to the Recorder’s Court of Chicago; the Hon. Evert Van Burén, Judge, presiding. This was an action of trover brought in the court below by William Jones against Barney Nellis, to recover the value of a seven-thirty government bond for $500, which had been stolen from the plaintiff and bought by the defendant. The facts in the case are contained in the following stipulation: 1.

Writ of Error to the Circuit Court of Livingston county; the Hon. Charles E. Starr, Judge, presiding. This was an indictment found by the grand jury of Livingston county, and returned to the October Special Term of the Circuit Court of that county, against Walker Eubanks. It charged him with an assault with intent to murder one James M. Donaldson. He entered a plea of not guilty, after. being arraigned.

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

Evert Van Burén, Judge, presiding. This was an action of assumpsit brought in the court below by Pettit & Smith against the First National bank of Chicago, to recover the amount of a check drawn by George M. Allen upon the bank, and in favor of the plaintiffs. A trial resulted in a finding, and judgment in favor of the plaintiffs. The defendant thereupon took this appeal. The grounds upon which the plaintiffs sought to recover are set forth in the opinion of the court.

Writ of Error to the Circuit Court of Stephenson county; the Hon. Benj. R. Sheldon, Judge, presiding. This was an action of assumpsit brought by the B card of Supervisors of Stephenson county, to the April Term, 1864, of the Circuit Court, against the town of Freeport.

S. L. Richmond. -1, dge, presiding. This was an action on the case brought in the court below, by Mortimer Kevins against The City of Peoria. The can e was tried before the court and a jury, and a verdict returned for the defendant, and a judgment was entered accordingly. The plaintiff thereupon took this appeal.

Writ or Error to the Circuit Court of Whitesides county; the Hon. Ira 0. Wilkiusou, Judge, presiding. This was an action of ejectment, brought by Peter Maison and Augusta Maison, in the Circuit Court of Whitesides county, to the October Term, 1861, against Sarah Pollock and Peter Pollock, for the recovery of lots 25 and 26 in block 2, and lots 1 and 2 in block 5, in the town of Conie, in Whitesides county.

<p>1. Mortgage—what constitutes. After a decree of foreclosure of a mortgage given to secure a loan of money, and a sale thereunder at which the mortgagee became the purchaser, the latter waived the payment of the money in redemption from the sale, and, before the time of redemption expired, under an understanding with the mortgagor to extend the time for the payment of the money, and to still hold the land as security, the mortgagee took a quitclaim deed therefor from the mortgagor, and gave him a bond for a reconveyance upon the payment at a certain time, beyond the statutory time for redemption, of a sum which was made up of the amount found due by the decree of foreclosure, with a heavy usurious interest, the bond providing that the time of payment of the money should be of the essence of that contract. Held, that the quitclaim deed and bond for reconveyance constituted a new mortgage, and not a sale and resale.</p> <p>2. Same — effect of the new arrangement upon the rights of the mortgagee as a purchaser under the foreclosure. The arrangement by which the mortgagee took the quitclaim deed from the mortgagor, and gave him back his bond for a reconveyance, canceled the certificate of purchase which the former had received at the sale on the decree of foreclosure, his equitable title obtained thereby being merged in the legal title acquired by the deed, and he had then no right to a deed from the master, under the foreclosure.</p> <p>3. Same — right of redemption of the mortgagor. The mortgagee having obtained a deed from the master under the sale on foreclosure, after the statutory time for redemption therefrom had expired, notwithstanding the new arrangement, he commenced his action of ejectment against the mortgagor, to recover the premises ; and on hill filed by the latter to enjoin that suit, and to redeem, although the terms of payment as prescribed in the bond for reconveyance had not been complied with, it was held, as the new transaction was a mortgage, and the mortgagee having rescinded that agreement, the mortgagor had a right to redeem by paying what was equitably due.</p> <p>4. Same — what amount should he paid on such redemption—of the usury. The amount to he paid on such redemption, should he the amount of the decree on foreclosure with six per cent interest and costs, the usury which was reserved in the new arrangement being deducted.</p> <p>5. Injunction — when it should he made perpetual. When an injunction is granted to restrain the prosecution of an action of ejectment, upon the ground that the transaction out of which the plaintiff in the action derives title, was a mortgage, from which the defendant in the ejectment seeks in his hill to redeem, if the right of redemption is established, the injunction should be made perpetual, and it is error if the decree does not so direct.</p>