Volume 42 — Illinois Reports

<p>Appeal from the Circuit Court of Livingston county; the Hon. Charles B. Starr, Judge, presiding.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding. A sufficient statement of the case will be found in the opinion of the court.

<p>1. Demand—wTim necessary, in trover. A conversion is not produced by a demand and refusal, but it is the evidence of a conversion. Whenever a conversion is shown, the action of trover may be maintained.</p> <p>3. Where the property has-been sold and converted into money, a demand is unnecessary, because an actual conversion has taken place.</p> <p>8. So, generally, when a party commits a trespass, by wrongfully taking possession of the property of another, although it may be under a claim of right, a recovery may be had.</p> <p>4. The distinction seems to be, that where a party comes into possession rightfully, but his possession has become wrongful, then a demand and refusal are necessary to show that he has converted the property.</p> <p>5. But where the possession is taken under a wrongful claim of ownership, the taking is, of itself, a conversion, and no demand is necessary.</p> <p>6. And the fact that the possession was obtained through the forms of law, makes no difference, where the proceeding was designed as a fraud upon the owner.</p> <p>7. So, where a party obtains possession of the property of another by means of a writ of replevin, under an assertion of title, but with intent thereby to defraud the owner, such taking is a conversion, and the owner may maintain trover without making a demand.</p> <p>8. Eeplevin—effect of seizing propen'ty under the writ, as to its ownership. The mere taking possession of property under a writ of replevin, by the plaintiff therein, does not affect the ownership thereof. That can only be determined by a trial, and the judgment of a court.</p> <p>9. Same—remedy of the owner. So, if the plaintiff in replevin, after having obtained possession of the property of another under the writ, dismisses his suit without a trial upon the merits, the owner may maintain trover or replevin against him and have the right determined. His remedy upon the replevin bond is not exclusive. The case of Speer v. Skinner, 35 Ill. 382, is distinguished from this case, upon that question.</p>

<p>1. Gift—'when valid. A party may make a gift of Ms property, in anticipation of danger or death, if it is not in fraud of creditors.</p> <p>2. The mere existence of creditors of the donor will not avoid the gift, if they can he paid from other assets. A man may dispose by gift of the hulk of Ms property to a child, provided he retains enough to satisfy all subsisting claims against him,.</p>

<p>1. Redemption bt a judgment creditor—of the manner of the sale, in consummation of the redemption. Where two lots of ground have "been sold together, under an execution, a judgment creditor, who seeks to redeem from such sale, must cause the lots to he sold together, under his judgment, as they were sold under the original judgment, in order to consummate his redemption. If, after paying the redemption money, he causes the lots to he sold separately, and bids them in for a less sum, he will he considered as having abandoned his redemption, and made his sale wholly independent of it.</p> <p>2. Same—how soon after paying the redemption money, the sede should he had. Where a judgment creditor, who had paid the redemption money and levied his execution, delayed making the sale for two and a half years, it was thought questionable whether the redeeming creditor could he permitted to wait so long a time before proceeding with his own sale,—whether the policy of the statute would not require him to proceed at once with his sale, in order that other judgment creditors might in turn exercise their right of redemption. But the question is not decided.</p> <p>3. Offer to perform—when unavailing. Where, upon the hearing of a cause in chancery, upon bill filed for a specific performance of a contract for the sale of land, the defendant offers to convey upon payment of a balance of the purchase money which remained unpaid, when it appears, that, since the filing of the bill, he has conveyed to a person who is not a party to the suit, his offer to perform will he regarded as frivolous, and will not affect the right of the complainant to a decree for so much of the purchase money as he has paid.</p> <p>subsequent purchaser of land, with notice of a prior contract of sale by his grantor, pending a suit by the prior purchaser, against his vendor and the subsequent purchaser, for a specific performance, conveys the land to another, who is not a party to the suit, he will be considered as holding the money in place of the land, and the complainant will be entitled to a money decree against him for the purchase money paid on the original contract.</p> <p>5. Same—what is a sufficient performance hy the purcJiaser, in the payment of taxes. Where a purchaser of land, who is seeking a specific performance by his vendor, was bound by his contract of purchase to pay the taxes on the premises, instead of paying them, allows the property to go to sale and bids it off himself, but seeks or intends to obtain no advantage from the tax sale, that will be regarded as only an indirect mode of paying the taxes, and a sufficient performance on his part in that regard.</p> <p>6. Tax sale—who may claim title thereunder. Where a purchaser of land agrees to pay the taxes on the premises, but instead of doing so permits them to go to sale and bid them in himself, neither he nor any person claiming under him can set up such tax sale as title against the vendor.</p>

Benjamin B. Sheldon, Judge, presiding. This was an action of debt commenced before a justice of the peace in Jo Daviess county, by The Town of Vinegar Hill against John Busson, for continuing an obstruction of a public road. The cause was removed into the Circuit Court by appeal, where a trial resulted in a verdict and judgment for the defendant. The plaintiff brings the cause to this court by appeal. The opinion of the court contains a statement of the case.

Writ of Error to the Circuit Court of Du Page county; the Hon. Isaac G-. Wilson, Judge, presiding. This was a proceeding by the common law writ of certiorari, directed to certain- supervisors of towns, commanding them to certify to the Circuit Court the record and proceedings relating to a certain highway by them laid out. Upon the trial, the court below dismissed the writ and rendered a judgment for the defendants.

<p>1. Allegations and decbee—should correspond. A decree cannot properly be entered concerning a subject which is not embraced in any of the pleadings in the cause.</p> <p>2. So, where a purchaser of land filed a bill against the heirs of his vendor, to compel a conveyance to him, and a decree was rendered to that effect, upon approving the master’s report that he had conveyed to the complainant, the court directed another parcel of land, not included in the former decree, to be conveyed to certain third persons, as purchasers from the complainant, when there was nothing upon the files or records of the court as a foundation for such new order. This was error.</p> <p>3. If such purchasers had acquired rights in the subject-matter of the suit, in regard to which they desired the action of the court, they should have filed their petition asking to be made parties, and stating the facts from which their interest arose.</p> <p>4. Amendment of decbee—notice. After a decree has been rendered in a cause, settling the rights of the parties, and nothing remains but to execute it, it should not be opened for the purpose of a new adjudication upon the merits, or an amendment of the decree in a material point should not be allowed, without such notice to the opposite party as will give him the opportunity of being heard.</p>

John M. Wilson, Chief Justice, presiding. This was an appeal from a judgment upon a special assessment warrant, Ho. 227 Horth, for the extension of Horth avenue, from Horth Wells street, eastwardly, to Horth Dear-born street, in the city of Chicago. Judgment was rendered in the court below in favor of the city, February 17, 1866, and a sale of the property ordered; whereupon the defendant appealed to this court.

T. D. Mubphy, Judge, presiding. This was a suit in chancery instituted in the court below by Horace S. Champlin against Charles 0. Boynton, Morris Walrod, Robert H. Walrod, Benjamin Page and James S. Waterman, to enforce a vendor’s lien, claimed by the complainant, upon the north half of the south-west quarter of section twenty, in township forty, north of range five, east of the third principal meridian, situate in De Kalb county.

<p>1. Partnership—payment of individual debts of partners with partnership funds—relative rights of the creditors and the other partners. The duties and obligations between members of a partnership and third parties are reciprocal. So, while it is true that one partner cannot rightfully appropriate the partnership funds in payment of his individual indebtedness, yet it is equally true, that, if he does so appropriate them, his acts, when they come to the knowledge of the other members of the firm, should be clearly and promptly repudiated. No room should be left for doubt, in the minds of the parties concerned, as to whether the act is repudiated or ratified.</p> <p>2. Same—and herein, what will amount to a ratification. Where a member of a partnership, who was indebted on his own private account, to the bank in which the funds of the firm were deposited, drew a check in the firm name in favor of the bank, which was placed to the credit of his individual account, and the other members of the firm had knowledge of this misapplication of the partnership funds within a month thereafter, but omitted to repudiate the act until four years afterward, when a suit at law was brought in the firm name against the bank to recover the money, it was held, however clear the right of recovery might have been if the act had been promptly repudiated, these facts amounted to a ratification, which would prevent a recovery against the bank.</p>

E. S. Williams, Judge, presiding. This was an action on the case brought in the Circuit Court by James R Baker against The Michigan Southern and Northern Indiana Railroad Company, The Cleveland and Toledo Railroad Company, The Sandusky, Mansfield and Newark Railroad Company and the Central Ohio Railroad Company, to recover damages resulting from delay on the part of the defendants in the transportation of a lot of hams shipped from Chicago.

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

Joseph E. Gary, Judge, presiding. This was an action of ejectment brought in the court below by David B. Fisk against Patrick Kissane, to recover the east half of lot eight in block thirty-five, in Johnson, Roberts and Storr’s addition to Chicago.

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

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

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

Appeals from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. These were proceedings commenced before a justice of the peace in Cook county, by John Martin and John Smith, respectively, against the Propeller “ Niagara,” to recover for services rendered upon the boat. The causes were removed into the Circuit Court by appeal.

<p>Writ of Error to the Circuit Court of Tazewell county; the Hon. James Harriott, Judge, presiding.</p>

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

<p>Wbit of Ebeob to the Circuit Court of Tazewell county; the Hon. Samuel H. Treat, Judge, presiding.</p>

Appeal, from the Circuit Court of Jo Daviess county; the Hon. Benjamin R. Sheldon, Judge, presiding. This was an action of replevin brought in the court below by Ludwig Phillips against Simeon K. Miner, to recover a quantity of dry goods.

Joseph E. Gary, Judge, presiding. On the 11th day of October, 1865, the appellee delivered to the appellant, in Springfield, twenty-seven sacks of wool, to be transported by appellant’s railroad to Chicago. The wool was consigned to Pixley, Hall & Livermore, commission merchants, in Chicago. The wool reached Chicago on the 13th day of October, and on the 14th day of that month was stored by the appellant in its depot, to await the order of the consignees.

E, 8. Williams, Judge, presiding. This was an action of trespass on the case, brought in the court below by Strew M. Emmons against Frank S. Palmer and William Gilbert, for malicious prosecution of the plaintiff, upon a charge of larceny. A trial resulted in a verdict for the plaintiff for $5,000 damages ; Palmer having died after the verdict was rendered, a judgment was entered against Gilbert, from which he took this appeal.

John S. Thompson, Judge, presiding. Henry C. Strong brought his action of ejectment in the court below, against Abner C. Harding, to recover certain premises described as lot five in block one, in Haley’s addition to the city of Monmouth, in Warren county, in this State, the plaintiff claiming title thereto in fee. The defendant pleaded not guilty.

Iba 0. Wilkinson, Judge, presiding. This was an action of trespass brought by Elias H. Morse against George W. Iman, before a justice of the peace. The cause was removed into the Circuit Court by appeal, where a trial resulted in a verdict and judgment for the plaintiff. The defendant brings the cause to this court by appeal.

Writ of Error to the Superior Court of Chicago. This cause was originally argued at the April Term, 1864, of this court, when the decree of the court below was reversed, and a decree entered in this court, dismissing the original bill and granting the prayer of the cross-bill. The case is reported in 34 Ill. 476, where the facts will be found in the opinion of the court.

Challes R. Stale, Judge, presiding. This was an action of trespass on the case, brought in the court below by Mahan & Hunt against the Chicago and Alton Railroad company, in which the plaintiffs recovered. The defendant took this appeal. The opinion of the court contains a statement of the case.

<p>Appeal from the Circuit Court of Woodford county; the Hon. M. Williamson, Judge, presiding.</p>

Writ of Error to the Circuit Court of La Salle county; the Hon. Sidney W. Harris, Judge, presiding.

E. 8. Williams, Judge, presiding. This was an action on the case brought by Margaret Powers, as administratrix of Mary Powers, deceased, against the city of Chicago, to recover damages resulting from the death of the said Mary Powers, alleged to have been occasioned by the neglect of the city. It is averred in the declaration, that the deceased left surviving and next of kin, only her mother, the plaintiff, and a brother seven years of age.

<p>1. Cohpabatiye negligbnce—dangerous obstructions to streets—children playing at large. A heavy counter, some eighteen feet long and three feet high, was placed on the sidewalk in one of the principal thoroughfares in the city of Chicago, by some individual, without authority from the city; the counter was leaned against a fence which bordered the walk, with its open side toward it, and the bottom standing twelve or eighteen inches out from the fence. The counter had remained in that situation two or three weeks, when some children were climbing upon or about it, and thereby caused it to fall over and kill one of them. The child who was killed was six years old, and had frequently been upon the streets in the most crowded parts of the city, sometimes alone and sometimes with other children, and, at the time of the accident, was six blocks from home. In an action under the statute, against the city, to recover damages on account of the death of the child, caused by the alleged negligence of the city in permitting the counter to remain in so dangerous a position, it was held, there was negligence on both sides — on the part of the city, in allowing the counter to remain in that situation, and on the part of the parents of the child, in permitting him, at his age, to roam the crowded thoroughfares of the city, at such a distance from his home. But the negligence on the part of the city was not only not more, but was even less than that attributable to the parents of the child.</p> <p>3. In estimating the degree of carelessness with which the city is chargeable in such a case, the character of the obstruction is to be considered with reference to the proper uses of the street as a thoroughfare of travel, and not as a play-ground for children; and whether prudent persons would regard it as dangerous. The degree of carelessness is not to he judged from a single fatal accident. In deciding upon the question of comparative negligence, all these matters are to he taken into consideration.</p>

Wbit oe Ebboe to the Circuit Court of Jo Daviess county; the Hon. Benjamin E. Sheldon, Judge, presiding. This was an action of assumpsit, brought in the court below by James H. Carr against Simeon K. Miner. The declaration contains three special counts upon a letter written by the defendant to the plaintiff, in which the former admitted he had received the sum of $1,800 belonging to the latter. The common counts, also, were added.

<p>Appeal from the Superior Court of Chicago; the Hon. John H. Wilson, Chief Justice, presiding.</p>

Wbit of Eeeob to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. This was a suit in chancery instituted in the court below by Clement H. D’Wolf, against Amos Pratt, Jeremiah Pratt, S. W. Pandall, Horatio 0.

<p>1. Criminal law—conviction, for a lesser offense under am, indictment for the greater. Where the prosecution must prove every fact necessary to constitute the lesser offense, together with the additional facts which make it the higher offense, in order to justify a conviction for the latter, then a conviction may be had for the lesser offense under an indictment for the greater.</p> <p>2. So, under an indictment for rape, a party may be convicted of an assault with intent to commit a rape.</p> <p>3. Bill op exceptions — when necessary. An objection to a rule of the court below respecting the time within which instructions must be presented to the court, under which certain instructions offered were refused, cannot be entertained on error unless the instructions are embodied in a bill of exceptions ; as, even if the rule was unreasonable, it would not be error to refuse instructions under it unless they were correct, which could not be determined if they were not befofe the court.</p> <p>4. Instructions—of special rules of court in respect to the time within ■ which they must be presented. Circuit Courts have the power, by reasonable and proper rules, to prescribe within what time, during the progress of a trial, instructions must be presented.</p>

Madison E. Hollister, Judge, presiding. This was an action of assumpsit commenced in the Court of Common Pleas of the city of Aurora by Jeduthan Mason against Joseph P. King. The cause was removed, on change of venue, into the Circuit Court, where a trial resulted in a verdict and judgment for the plaintiff. The defendant brings the cause to this court by appeal.

E. S. Williams, Judge, presiding. This was an action of assumpsit brought in the court below by B. F. Carver & Co. against Sanger & Casey. A trial resulted in a finding and judgment in favor of the plaintiffs for §1,639.55. The cause is brought to this court by the defendants, by appeal. The facts of the case, so far as they affect the questions presented, are set forth in the opinion of the court.

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

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

S. Williams, Judge, presiding. This was an action of assumpsit brought in the court below by the First National Bank of Chicago against Bussell IÍ. Bickford, as the drawer of a certified check, which was protested for non-payment, and due notice given. A trial resulted in a finding and judgment for the plaintiff. The defendant appealed.

Yak H. Higgins, Judge, presiding. This was an action of assumpsit, brought in the Superior Court of Chicago, on the following… Held: kept and dejiosited in said bank at the sole and only risk of the plaintiffs above, and without any responsibility therefor on the part of this defendant, and this defendant at the trial of said cause will further show and prove that said checks above described, which are the foundation of the plaintiffs’ action, are the same and no…

Madison E. Hollister, Judge, presiding. This was a suit in chancery instituted in the court below by Charles H. Sutphen against William H. W. Cushman, by which the complainant seeks to redeem from an alleged mortgage, executed by him to the defendant in the form of a deed, purporting to convey an absolute estate.

<p>1. Mortgages—subsequent purchaser from, the mortgagor of a part of the premises—only secondarily liable. If a mortgagor conveys a portion of the mortgaged premises, retaining a portion himself, as between the mortgagor and his grantee, that portion retained by the mortgagor should he first applied to the payment of the mortgage.</p> <p>2. And when a court of chancery requires a mortgagee first to exhaust that part of the mortgaged property still held by the mortgagor, it is only another application of the principle, that where there are two creditors standing in equal equity, one of whom has security upon two funds and the other upon only one of the two, the former is required to proceed, primarily, against the fund upon which the latter has no claim.</p> <p>3. Same—subsequent purchaser of the remaining portion—of his rights in respect to the prior purchases'. A subsequent purchaser of the portion thus retained by the mortgagor, with notice of the prior sale of the other portion, simply steps into the shoes of the mortgagor, and will hold his portion subject to he charged primarily with the payment of the mortgage. He can claim no equity which would displace that of the prior grantee of the other portion of the mortgaged premises, who may still insist that the portion remaining when he purchased shall he first exhausted, in satisfaction of the mortgage, before his portion shall he chargeable therewith.</p> <p>4. Same — of successive sales by the mortgagor to different pes'sons — of the relative rights of the several purchasers. So, when a mortgagor makes successive sales of distinct parcels of the mortgaged property to different persons having notice of the prior sales, and the mortgagee afterward files a bill to foreclose, the different parcels are to be subjected to the payment of the mortgage in the inverse order of their alienation.</p> <p>5. Same—release by the mortgagee of the primary fund—its effect upon the portion secondarily liable. From the foregoing rule as to the order in which mortgaged premises shall he charged, it follows, that if the mortgagee, with actual notice of the facts, releases from the mortgage that portion of the premises primarily liable, he thereby releases, pro tanto, the portion secondarily liable. When the mortgage is sought to be enforced against the owner of the latter he can claim an abatement of his liability to the extent of the value of that portion which should have made the primary fund.</p> <p>6. Same—of the character of notice which must be given to a prior isieumbrances', of subsequent conveyances. A mortgagee is not required to take notice of the registry of deeds made subsequent to his own mortgage. In order to charge him with notice of such subsequent conveyances, so as to affect his action in respect to the rights of those holding under them, the notice must he actual, not constructive.</p> <p>7. Same — subsequent purchasers affected by constructive notice. But, while the mortgagee must have actual notice in order to affect his rights, a second or subsequent purchaser from the mortgagor is bound by the constructive notice furnished by the registry of prior conveyances of any portion of the mortgaged premises.</p> <p>8. Cross-bill—whether necessary. Upon bill filed to foreclose a mortgage, against several successive subsequent purchasers, who desired to set up against the complainant a release which he had given in respect to a part of the mortgaged premises which were primarily liable for the satisfaction of the mortgage, as a ground for holding the mortgage, to a certain extent, discharged, it is not necessary to file a cross-bill for that purpose, but the relief sought by the defendant, in that regard, may be obtained under the proper allegations in his answer.</p> <p>9. Subsequent purchasers from mortgagor—not affected by an agreement between mortgagor and mortgagee, of which they home no notice. Where a mortgagee executed an agreement to his mortgagor that he would release from time to time such portion of the mortgaged premises as the mortgagor might sell, upon being paid on the purchase money a certain" sum on each parcel sold, subsequent purchasers from the mortgagor who had not obtained releases, would not be affected by such agreement, unless they had notice of it, either actual or constructive.</p>

<p>1. Witness—competency—when to object. If it be alleged that a witness, whose deposition has been taken in a suit in chancery, is incompetent, on the ground of interest, the objection cannot he made for the first time in the appellate court. It should he made before the hearing, in the court below, by motion to suppress the deposition.</p> <p>3. Same — whether a party in chaneery is a competent witness. One of several defendants in chancery is a competent witness against Ms co-defendants, even if he has an interest in the event of the suit, if it be not against the party whose interests are sought to be prejudiced by Ms testimony.</p> <p>3. Contract —what may be the subject of contract—giving a preference to the last of a series of notes secured by mortgage. It is competent for the holder of several notes, falling due at different times, wMch are secured by mortgage, in transferring those last maturing, to stipulate with the assignee, that he shall hold a lien on the mortgaged premises for the security of the notes so transferred, prior to that retained for the security of the notes first maturing. Such a contract will he binding as between the parties, and all persons having notice thereof.</p> <p>4. Assignee of notes—when chargeable with notice of prior equities—and when subject thereto. WMle the purchaser of a note, before maturity, without notice, will he protected against all defenses to the note, still, if it is secured by mortgage, or other collateral security, the assignment will not cut off prior equities against the mortgage or collateral fund, although such equities he secret and latent.</p> <p>5. So, where the holder of several notes maturing at different times, wMch are secured by mortgage, transfers those last maturing, under an agreement with the assignee, that he shall hold a preferred lien upon the mortgaged premises for the security of the notes thus assigned, as against the notes first maturing, which are retained hy the mortgagee, a subsequent purchaser of the notes first maturing will be chargeable with notice of that agreement, and will hold the notes so purchased by him subject to the prior equity of the first assignee, to have his notes first satisfied out of the mortgaged premises.</p> <p>6. And especially is this the case, where the subsequent purchaser of the notes first maturing obtained a mere equitable title to them; he. would then be bound to know that they were subject to all equities existing as to the fund relied upon for their security, at the time he purchased them. A person dealing in equitable claims to paper, and equitable securities for its payment, should inquire of the maker, and in case there are several notes thus secured, and only a portion of them is offered, he should inquire of the payee whether the others have been sold with a preferred lien upon the security.</p>

Wett of Ebeoe to the Circuit Court of Washington county; the Hon. Silas L. Bbyan, Judge, presiding. This was an action for slander brought in the court below by Mary McClurkin against Samuel Ewing; a trial resulted in a verdict and judgment for the defendant. The cause is brought to this court by the plaintiff, on writ of error.

* Appeal from the Circuit Court of St. Clair county; the Hon. J. Gillespie, Judge, presiding. This was an action of trespass on the case, brought to the October Term, 1865, of the St. Clair Circuit Court, by William Eaves against the Ohio and Mississippi railway company.

Aaron Shaw, Judge, presiding.. This was an action of assumpsit, brought by George W. Haynie, in the Eichland Circuit Court, against James Gardner. The declaration counted for money due and owing for the use and occupancy of a messuage and buildings thereon, and also for money had and received by the defendant from the plaintiff. Afterward, defendant filed a general demurrer to each count of the declaration, which was overruled by the court.

<p>Appeal from the Circuit Court of Washington county; the Hon. Silas L. Bbyan, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding.</p> <p>Harvey B. Lucas brought an action of assumpsit in the Circuit Court of Washington county, at the August Term, 1863, against Jackson Baldwin. Some time previous, Lucas had obtained an injunction against one G-ideon Burton, and Baldwin at that time became his security on the injunction bond. To indemnify Baldwin against any risk from the bond, Lucas placed in his hands money to the amount of §1,100. The chancery suit against Burton was gained by Lucas. Lucas then brought the suit in assumpsit for the deposit. Baldwin died about the 1st of January, 1864, and Miles Hewitt was appointed his administrator. At the fall term of that year, Hewitt, as administrator, having been made defendant, the cause was tried by a jury.</p> <p>The evidence on the part of the defendant was, in substance, that biaey Earls saw Baldwin pay Lucas §600 on the 11th of September, 1863; that Isaac Ellifritz, perhaps a month afterward, saw money paid over by Baldwin to Lucas, with the remark “ we are now square.” The verdict was for the defendant, and judgment was rendered against Lucas for costs. A motion for a new trial was overruled.</p> <p>In February, 1865, Lucas filed his bill in chancery in the "Washington Circuit Court, setting out the foregoing facts, and charging that both of said witnesses had sworn falsely in their testimony on the trial, and that Hewitt had procured them to do so. The Circuit Court, upon evidence as stated in the opinion of the court, decreed a new trial. To reverse that decree this writ of error is prosecuted.</p>

<p>1. Evidence—primary — secondary, when admissible. It is a rule of evidence, that the best evidence of which the case admits must be produced, but, if not within the power of the party, then secondary evidence may be heard. The law requires, that all proceedings, in posting estray cattle, before a justice of the peace, shall be in writing; audit is error to permit the fact that animals were posted to be proved by parol, without laying a foundation, by showing that the original papers and justice’s docket were lost or destroyed. But, where such evidence is not pertinent to any issue in the case, and could not mislead, a judgment will not be reversed for such an error.</p> <p>2. Judgment—in replevin. Where a judgment in replevin is for the return of all the property described in the writ, and it appears, from the officer’s return, that a portion described in the writ was not taken and delivered to the plaintiff, held, the judgment was too large, and must be reversed for error. It could not have properly been for more property than was replevied.</p>

<p>Appeal from the Circuit Court of Washington county; the Hon. Silas L. Bbyah, Judge, presiding.</p>

Writ of Error to the Circuit Court of Pulaski county; the Hon. Wesley Sloan, Judge, presiding. This was a foreign attachment, commenced in the Circuit Court of Pulaski county, at the April Term, 1861. The affidavit filed by the plaintiff claims $173.86. Notice was given that an attachment had issued for that amount. The declaration filed claimed damages in the sum of $173.86. Judgment was rendered by default for $429.91 and costs.

<p>Weit oe Ebbob to the Circuit Court of the county of Washington ; the Hon. Silas L. Betan, Judge, presiding.</p>

<p>1. Sabes without redemption—time to le allowed for payment of money. 'It is error to order a sale of premises when there is no redemption, as on a decree to enforce a mechanic’s lien, in less time than the life-time of an execution.</p> <p>2. Mechanics’ lien-—of apportioning the same among different lots. Where materials are furnished for the erection of an entire block of buildings, all compact as one building, and under one roof, it is proper to decree the mechanics’ lien against the entire block, although it may be built upon several lots of ground; and it is not necessary, in such case, that the lien should be •apportioned among the lots, respectively, according to the value of the materials furnished, upon each.</p> <p>3. Rule to plead—in proceedings to enforce a mechanics’ lien. It is not necessary, to authorize a default in such proceeding against a party who is brought into court by publication, that a rule should be taken against him to plead or answer before the default is entered.</p> <p>4. Notice by publication—in proceedings to enforce a mechanics’ lien—■ necessity of am, order of court therefor. It is not necessary that there should be an order of court authorizing notice by publication, in a proceeding to enforce a mechanics’ Ren. This notice is governed by the chancery practice, and is made by the clerk, on proper affidavit filed, and without any order of court.</p>

Silas L. Bryapt, Judge, presiding. This was a hill in chancery filed at the April Term, 1864, of the Circuit Court of Washington county, against Presley Walker and Hannah, his wife, to compel the execution of a deed.

<p>Writ of Error to the Court of Common Pleas of the city of Cairo; the Hon. John H. Mulkly, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Jefferson county; the Hon. James M. Pollock, Judge, presiding.</p>

Wett of Ebeob to the Circuit Court of Clay county; the Hon. Aabon Shaw, Judge, presiding. At the June Term, 1863, of the Circuit Court of Clay county, an indictment was found against James C. Gill, for assaulting with intent to kill one Sullivan Hubble. The cause came on for trial at the October Term, 1864.

Writ oe Error to the Circuit Court of the county of Clay; the Hon. Aaron Shaw, Judge, presiding. This was an action of assumpsit brought by Levi M. Plaut, in the Circuit Court of Clay county, against the board of supervisors of that county. The declaration contained the common counts for goods, wares and merchandise sold and delivered. The general issue was pleaded. A trial was had before the court, a jury having been dispensed with by agreement of the parties.

’Writ of Error to the Circuit Court of Hardin county; the Hon. Wesley Sloak, Judge, presiding. This was an indictment against William E. Falk, charging him with the murder of John C. Worthington, in August, 1866. It was returned to the Circuit Court of Hardin county, during that same month. The facts of the case sufficiently appear in the opinion of the court.

<p>1, Compulsoby payment—what constitutes. A payment, made under protest to the officers of a town, to avoid prosecution and fine under an invalid ordinance, is an involuntary payment, and an action will lie against the town for the sum paid and interest.</p> <p>3. It is no defense to such an action for a town to plead the illegality of its own ordinance; and it is sufficient, if it appear, that the money was paid to avoid fine and imprisonment, and under circumstances sufficient to induce the belief that the provisions of the ordinance would be enforced.</p> <p>3. It seems, that the mere invalidity of an ordinance would not, of itself, constitute a sufficient ground for the recovery of money voluntarily paid under it.</p>

Writ of Error to the Circuit Court of the county of Lawrence; the Hob. Aarob Shaw, Judge, presiding. This was an indictment presented by the grand jury of Lawrence county against Elijah Tarpley, for an assault with a . deadly weapon, with intent to inflict a bodily injury on one William Decker. The indictment contained two counts, the first of which was, on motion, quashed, and the plea of not guilty interposed to the other.

<p>1. Partnership'—dissolution of by death. On the death of a partner, the partnership is, ipso facto, dissolved, and the survivors have no lawful right to expend the money of the firm, however necessary the expenditure may be to the conduct of the business.</p> <p>3. Administrator—7ds silence not to prejudice the estate. And, where the administrator of a deceased partner sees the surviving partners expending the funds of the firm, and does not forbid it, this cannot, as in the case of a person acting in his own right, estop him from resisting a claim growing out of it.</p> <p>3. Partnership affairs—how settled after a dissolution ly death. Upon the dissolution of a partnership by the death of one of the firm, the property is common, to be divided according to the shares of the partners, after the payment of the debts. This property is, first, the stock in trade as originally contributed, with all the additions made to it; second, real estate owned by the company; and third, in certain cases, the “ good will ” of the concern.</p> <p>4 In taking an account between the partners themselves, the state of the stock is to be taken as at the death of the deceased partner, and the proceeds thereof until it is got in, and each partner is to be allowed whatever he has advanced to the partnership, and to be charged with what he has failed to bring in, or has drawn out more than his just proportion. If there be no agreement to the contrary, the partners are to be allowed equal shares of the profits and stock.</p> <p>5. And, where no account of stock was taken at the death of one partner, and by an arrangement with his administrator, the surviving partners carried on the business of the concern for nearly a year, when they rendered an account to the administrator, the proper mode of stating the accounts between the parties is: state the value of the stock as it was at the death of the deceased partner, adding the proceeds thereof up to the time of rendering an account; each partner should be charged with what he failed to bring in to the partnership, or has drawn out more than his just proportion; each partner is to be allowed whatever he has advanced to the partnership, and the balance remaining equally divided between them.</p>

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

. Sjxas L. Bryan, Judge, presiding. •This was an action on the case, brought in the Circuit Court • of .Marion county, by Samuel McClelland against the Illinois Central Railroad Company, for the burning of a certain rail fence, and the grass and hay upon 20 acres of meadow adjacent to the railroad track.

Writ oe Error to the Circuit Court of Crawford County; the Hon. Aaron Shaw, Judge, presiding. This was a bill in chancery exhibited in the court below by Clark B. Lagow and John E. Decker against Hickman Henderson, as sheriff of Crawford county, for the purpose of enjoining the collection of a tax levied by the County Court of that county, to pay bounties for volunteers in the late war, in order to save the county from an impending draft.

<p>1. Evidence—affirmative and negative. It is a well established rule, that affirmative evidence is entitled to more weight than negative testimony. Where a witness swears a particular act was performed, or particular language was spoken, and that he saw the one or heard the other, such would be affirmative evidence. If another witness were to swear that he was also present, but was giving slight attention, and neither saw the one thing nor heard the other, such would be negative evidence. But, if the latter witness were present at the same time, and had equal means of seeing and hearing, and was giving particular attention to what was done and said, and were to swear that the act to which the other swore did not occur, or the language he swore was used was not spoken,— this would also be affirmative evidence although given in negative form.</p> <p>3. .Tort—eonfiieting evidence. In all cases where the evidence is conflicting, it is the province of the jury to weigh and give to it the weight to which it is entitled. And, in such a case, it is error for the court to instruct them as to which is most entitled to weight or credibility. In doing so, the court invades the province of the j ury, and commits an error for which the j udgment will be reversed.</p>

<p>1. Judgment upon a plea to the jurisdiction. Where the defendant flies a plea to the jurisdiction, and the plaintiff replies, and an issue of fact is joined, and on trial the issue is found for the plaintiff, the judgment of the court must then be rendered for the plaintiff, and the defendant cannot have leave to answer over.</p> <p>2. Damages—in such case. In such a case, where the action is debt for a sum certain, and the issue on the plea is tried by the court and found for the plaintiff, the court should then render judgment for the plaintiff for the debt in the declaration mentioned, and proceed at once to assess such damages as the plaintiff might show he had sustained by the non-payment thereof.</p> <p>3. Demurrer—too late after issue of fact. A demurrer to a declaration comes too late after an issue has been made up, and tried, and found for the plaintiff.</p>

<p>1. New teial—verdict against the evidence. Where the question has been fairly presented to a jury, whether a contract is joint or several, the finding will not be disturbed unless it is manifestly against the weight of evidence.</p> <p>3. Assumpsit—where it lies. Where a party agreed, that, if another person would negotiate for himself and others the purchase of a woollen mill, on specified terms, for which services he was to surrender a note of the agent which he then held, and the purchase was so made, and the holder assigned the note before its maturity, the agent may maintain an action of assumpsit on the breach of contract, after being sued and a judgment rendered against him on the note, although he may not have paid the judgment until after he has brought suit.</p> <p>3. Witness—not interested. Where several persons, in contemplation of entering into a partnership, employ an agent to negotiate the purchase of property, and they afterward form a partnership, and the agent sues one of them for the amount of a note he was to have surrendered to him as compensation for his services, another partner is a competent witness to prove the agreement.</p> <p>4. Action — before a justice of the peace. Where a plaintiff sues before a justice of the peace, he need not name his action, or even if he mistakes the name, it will not affect his right to recover. In such a case, the question is, whether the justice of the peace has jurisdiction of the parties and the subject matter of the suit, and a right of recovery is shown,—if so, then he must have judgment.</p> <p>5. Statutes—public and private. Where an act of the general assembly declares that it is a public statute, and that judicial notice thereof shall be taken in all courts and places, it must be held to be a public and not a private law, notwithstanding it also declares that it may be read in evidence without proof. Had this last been the only clause, it might have been otherwise.</p>

Wbit of Error to the Circuit Court of Alexander county; the Hon. William H. Greek, Judge, presiding. At the September Term, 1865, of the County Court of Alexander county, James H. Carter produced an instrument purporting to be the last will and testament of Elizabeth Burnett, deceased, and asked that the same be admitted to record as such. The heirs at law contested the will, and the County Court refused to record it.

<p>County Treasurers — their compensation. Upon aE assessments and coHections by a county for the purpose of discharging any of its Habilities, the treasurers of those counties named in the act of 16th of Feb., 1865, are entitled to three per cent on the first §5,000, and one per cent on all over that amount.</p>

<p>1. Mobtgage — Ken—notice. Where a party sells real estate, and takes a mortgage on the premises to secure the purchase money, and it is recorded, it becomes a lien and notice of the fact; and a third person recovering a judgment against the mortgagor, in the Circuit Court, acquires a lien on the premises, subject to the mortgage, which is entitled to priority in satisfaction.</p> <p>2. Same—reeomeyomce by mortgagor. Where a mortgagor, under such circumstances, reconveys the premises to the mortgagee and thus cancels the mortgage debt, the lien of the judgment creditor is not thereby destroyed, but he may, after selling under his judgment, and acquiring title to the equity of redemption, redeem the premises by paying the mortgage debt and interest. And when the judgment debtor has died, his administrator occupies the same relation to the premises.</p> <p>8. Same — equity of redemption. A mortgagee by receiving a conveyance of the premises from the mortgagor does not thereby lose his lien, nor is it postponed to a junior incumbrance by judgment. If the judgment creditor or his representatives, by a sale under the judgment, acquires the equity of redemption, it remains subject to the payment of the mortgage debt,</p> <p>4. Judgment — Ken—execution. Where a plaintiff recovers a judgment and dies, and no execution is issued for more than a year, the lien is lost as against a mortgagor or other person purchasing the equity of redemption. The lien of a judgment is not lost by the death of a plaintiff, but, to continue it beyond a year from the last day of the term at which it was rendered, the administrator should file a copy of his letters in the clerk’s office, and sue out execution, as authorized by the statute. A sale on an execution, first sued out after the expiration of the year, confers no title as against the mortgagee.</p> <p>5. ShebiWs deed—cloud on title. Such a sheriff’s deed, although incompetent to convey title, is such a cloud upon the title of the owner, as will warrant a court of equity in entertaining a bill for its removal.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. Silas L. Betan, Judge, presiding.</p>

Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. This was an action of trespass brought by Smith against Price in the Circuit Court of Marion county, at the March Term, 1866. The premises on which the alleged trespasses were committed had been sold by Price to Smith, as appears by a bond for a deed dated 23d May, 1864.

<p>1. Executrix—conveyance to, for debts to testator. A conveyance to a person who is an executrix, passes to her the fee, and she may sell and dispose of the land, although received in satisfaction of a debt due her testator. And, having exchanged the land thus received with one of the heirs of testator for land of equal value, which he had inherited from, his father, and she having conveyed these lands received from the heir to the other heirs, she must be held to have accounted for the proceeds of the original debt, and the lands conveyed by her in exchange for the others cannot be regarded as to being held in trust for the benefit of the heirs.</p> <p>2, Same — assets—account. In such a case, where the executrix had reported a large amount of assets with which she was charged, and had accounted for a greater sum, the presumption will be indulged, in the absence of proof, that the debt for which the property was received of the debtor was reported and accounted for in her settlement with the probate court.</p>

<p>1. Construction of written instruments, in the light of extraneous ci/reumr sta/nees. Where a second deed of trust is executed to obviate errors in a deed of the same character previously executed between the same parties, the two instruments hearing date on different days, and the cestui que trust executes a release purporting to operate upon the deed first executed, hut misdescribes that deed by giving it the date of the second deed, the court, reading the release in the light of all the facts, will give it operation according to the intention of the parties.</p> <p>2. Record of deeds—when will he examined by the Supreme Oowrt. Where there is an alleged alteration in the record of the conveyance, in a matter material to the issue, and the parties agree that the original record may be exhibited in the Supreme Court, this court will then inquire into and decide upon the facts of the alleged alteration.</p>

Writ of Error to the Circuit Court of the county of Marion; the Hon. Silas L. Bryan, Judge, presiding. This was an action of trespass on the case, brought by Hrial Mills, in the Marion Circuit Court, against the Illinois Central Railway Company. The first count of the declaration averred that the company owned a railroad, and a right of way one hundred feet wide adjoining a meadow in which plaintiff had a large quantity of hay.

Wbit of Ebbob to the Circuit court of Marion county; the Hon. Silas L. Betas, Judge, presiding. This was an action of ejectment, brought in the Circuit Court of Marion county, May 19th, 1863, by Ebenezer Jayne, to recover the undivided nine-thirteenths of a forty acre tract of land in that county, claimed by Bobert F. Gregg. The cause was tried at the March Term, 1864, of the Circuit Court of that county.

Hiram B. Decius, Judge, presiding. This was an action of replevin, brought by Silas Peters, in the Clark Circuit Court, against Andrew J. Smith. The declaration proceeded for the recovery of a quantity of stock and farming implements. Defendant filed three pleas; first, non cepit; second, property in defendant; third, property in William S. Peters. Issues were formed, and, by agreement of the parties, the cause was tried by the court without the intervention of a jury.

Joseph Gillespie, Judge, presiding. This was a hill in chancery filed in the Circuit Court of Madison county, by Catherine Heuser and Mary Schneider, the appellants, against Jonathan M. Harris, executor of Henry Seibert, deceased, and the school directors of Hnion district Ho. 4, of town 5, range 6, west of the 3d principal meridian, and the County Court of Madison county, the appellees, to set aside the fourth clause contained in the will of the said Seibert, as being void…

O. L. Davis, Judge, presiding. This was an action of trespass on the case, instituted by the appellee, in the conrt below, against the appellant, as a common carrier, for ejecting the appellee, who was a passenger, from the cars of the appellant. Damages claimed $10,000. Plea, the general issue.

Joseph Gillespie, Judge, presiding. This was a suit in equity instituted by John Cox and Jesse Starkey, who sue for themselves and others, in the Madison Circuit Court, against Bichard McDonald and James C. Martin.

<p>Appeal from the Circuit Court of Montgomery county; the Hon. H. M. Vandeveeb, Judge, presiding.</p>

Charles Emerson, Judge, presiding. . This was an action on the case, brought by Furgusson against the Railway Company, to recover the value of a milch cow killed by a train at or near a street-crossing in the town of Harristown. The jury found a verdict for the plaintiff below, upon which a judgment was rendered. The case is brought to this court by appeal.

Writ or Error to the Circuit Court of Cumberland county • the Hon. Aaron Shaw, Judge, presiding. This was a bill in chancery, filed by Uriah Q-. Walling, in the Cumberland Circuit Court, against James Ewart.

<p>Writ or Error to the County Court of Bond county; the Hon. E. Gaskins, Judge, presiding.</p>

Writ op Error to the Circuit Court of Macon county, the Hon. Charles Emerson, Judge, presiding. This was an action on the case brought by Mary E. Perkins against the American Express company as common carriers, in the Circuit Court of Macon county, to recover the value of a package containing a wreath, delivered to the company at Decatur, to be taken to Cairo.

Edward T. Rice, Judge, presiding. This was an action of ejectment brought by Charles A. Walker in the Macoupin Circuit Court, against Julius Schum, for the recovery oflot No. 8 in Miller’s addition to Carlinville. The declaration claims the premises in fee. A plea of not guilty was filed. At the December Term the cause was tried by the court and a jury.

<p>1. Appeals — lie from all judgments of justices of the peace, except when confessed. Under our statute, appeals lie .from all judgments rendered by justices of the peace, except when confessed.</p> <p>2. Same — the exception as to confessed judgments — technical. That portion of the statute, prohibiting appeals in cases when judgment has been confessed, has a technical application.</p> <p>3. Judgment — confession of—what admission will not amount to. Where a party sued before a justice of the peace, stated “that he could not deny the plaintiff’s demand,” such admission conferred no authority to enter a judgment by confession.</p> <p>4. Admissions. Such an admission, while it acknowledged the demand to be just, in no sense amounted to a confession of judgment, and the right of appeal remained.</p>

<p>1. Innkeepers — liability for lost baggage. Innkeepers are liable for the baggage of guests put in their charge, when lost without any fault on the part of the owner.</p> <p>3. But if the owner, on entering a hotel, allows another to exercise acts of ownership over his baggage, without informing the landlord that the baggage is his, and it is afterward carried away by such other person, this is gross negligence on the part of the owner, and releases the landlord from any liability for the loss.</p>

Aaron Shaw, J udge, presiding. This was a hill, filed by Elizabeth EL Green and Henry Green, in the Richland Circuit Court, against Allen B. Daniel.

John M. Scott, Judge, presiding. This was an action on the case, brought by Adams against the Illinois Central Railroad company, as common carriers, in the Circuit Court of De Witt county, to recover damages for injuries occasioned by the negligence of the company in transporting two car loads of live hogs from Clinton to Chicago, by reason of which a number of hogs died. The declaration contained four counts.

<p>1. Commutation—exemption from taxation. The legislature of Ulinois is authorized to commute with persons or corporations in regard to taxation In 1857, the legislature, by its charter to the city of Macomb, exempted the county of McDonough from taxation for the support of city paupers and the prosecution of city criminals, and provided that in consideration thereof all the real estate in the city and the personal property of the inhabitants thereof were exempt from taxation for county purposes, except payment of railroad debt: JEM, that the legislature has authority to make such commutation.</p> <p>2. Injunction—bill to restrain collection of tax. When city property is commuted, an injunction will lie to restrain the collection of a county tax levied by county authorities upon such city property. Thus, where the charter of the city of Macomb commuted all property therein from payment of county tax, except for payment of railroad debt, and the legislature subsequently passed a law authorizing McDonough county to make appropriations for bounties to volunteers, and directed the same to be paid as other county indebtedness, — held, that a bill in chancery would lie to enjoin the collection of a tax for such purpose in the city of Macomb, on the ground of exemption by the commutation clause in the charter.</p> <p>8. Statute—repeal by i/mplieation. Repeals by implication are never favored, and it is only where two acts are so inconsistent with each other that both cannot stand, that the latter is considered as repealing the former.</p>

Writ of Error to the Circuit Court of Mason county; the Hon. James Harriott, Judge, presiding. This was an action of replevin, brought by the Peoria, Pekin & Jacksonville Railroad Company, in the Mason Circuit Court, against Selah Wheadon, for the recovery of two box cars, valued at $1200. The declaration is in the usual form, and to it defendant filed the pleas of non cepit and non detinet, upon which issues were joined.

<p>Writ or Error to the Circuit Court of St. Clair county; the Hon. J. Gillespie, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Vermillion county; the Hon. David Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Edward T. Eioe, Judge, presiding.</p> <p>This was an action of assumpsit, brought by Jesse Oder, in the Sangamon Circuit Court, against John J. De Forrest. The declaration contains the common counts. Defendant filed these pleas: first, non-assumpsit; second, a special plea that plaintiff leased defendant a farm, with the privilege of an orchard and pasturage for five cows, and, in consideration of $125 paid to plaintiff, he agreed to keep up the fences, to keep and care for all stock defendant might place on the farm for pasturage during the continuance of the lease; that plaintiff entered into possession, and defendant placed in his care a lot of mules to be kept under the agreement; that for the want of care five of the mules, worth $140 each, escaped and were lost, which he offers to set off against plaintiff’s demand.</p> <p>The third plea avers an indebtedness from plaintiff to defendant of $1,000, for pasturage, and the price of five mules, lost through the negligence of plaintiff, which defendant offers to set off against plaintiff’s demand. Issue was joined on the first and second pleas, and a demurrer was filed to the third, which was sustained by the court.</p> <p>A trial was subsequently had by the court, a jury having been waived by agreement of the parties. The court found the issues for the plaintiff, and assessed the damages at $489.50. Defendant thereupon entered a motion for a new trial, which was overruled, and judgment rendered according to the finding ; to reverse which defendant prosecutes this appeal, and brings the record to this court.</p>

<p>1. Streets — sidewalks a part of. The streets of a city extend to and include that portion thereof occupied and used for sidewalks. The establishment of sidewalks is an act of the city authorities. The space occupied therefor is a part of the street as originally established. In a grant by the legislature of control over the streets of a city to the city authorities, control over the sidewalks passes to them, they being a part of the street.</p> <p>3. Same — duty of city to repair sidewalks. The streets of a city being under the control of the city authorities, imposes on the city the duty of keeping them in repair, and, as sidewalks are a part of the street, a like duty is imposed to keep them in repair.</p> <p>3. Damages—ingury from neglect of duty. The rule is well settled, that, where a plain duty is neglected, and one is injured by such neglect, the party upon whom the duty is imposed is liable for the damages sustained. Thus, where an injury was sustained by reason of defect in a sidewalk, which it was the duty of the city to keep or have kept in repair, the city is liable in damages for accidental injury sustained by reason of such defect.</p>

<p>Writ of Error to the Circuit Court of Cumberland county; the Hon. Charles H. Constable, Judge, presiding.</p>

Writ or Error to the Alton City Court; the Hon. H. W. Billings, Judge, presiding. This was an action of assumpsit brought by William McDaniel, in the Alton City Court, against William Corey. The declaration is upon the warranty of title, on the sale of two mules by defendant to plaintiff. It avers the sale for $210, and a warranty that defendant was the owner, when in fact he was not, but that they belonged to the government.

<p>1. Ackho-wIíBdgmeht — omission in caption fo aclmowledgment of deed. In taking the acknowledgment of a deed a justice of the peace omitted the name of the county in the caption thereto,, and for that reason the deed was objected to as defective; held, that the objection was obviated by proof of the fact that the justice of the peace, who took the acknowledgement, was at the time a justice of the peace of the county where taken, and as such took it— held, also, that, if the court in which such deed is offered be sitting in the county where the acknowledgment was taken, then such proof is not necessary, unless the particular question is directly in issue, as the court will take cognizance of the fact who are the justices of the peace for the county in which it is held.</p> <p>3. Practice — time of making certain objections. Where the plaintiff in ejectment deduces title through a sale under a deed of trust given to secure a debt, the objection that there was no proof that the indebtedness specified in the deed of trust was unpaid at the date of the sale, cannot be made, for the first time, in the appellate court. Such an objection should be made in the court below, to give the adverse party an opportunity to obviate it when the deed was introduced in evidence.</p> <p>8. Recitals —presumption from in trust-deed. But where a deed of trust recites an indebtedness, it will be presumed that such indebtedness remains unpaid, and such presumption is only to be rebutted by affirmative proof of its payment.</p> <p>4 Jury—province of. Where a verdict depends upon the credibility of witnesses, it is the peculiar province of the jury to judge of that credibility, and to attach such weight to the testimony "of each as may seem to be proper.</p> <p>5. Evidence — admissibility of pa/rol. Parol evidence is inadmissible in an action of ejectment to impeach a certificate of acknowledgment to a deed. The certificate of the officer as to the acknowledgment must be judged of solely by what appears on the face of the certificate, and if that is in substantial compliance with the statute, it ought not to be impeached, except for fraud or imposition.</p>

Writ of Error to Coles County Court; the Hon. Gideon Edwards, Judge, presiding. Jacob K. Decker and Greorge W. Teel, administrators of John E. Jeffries, deceased, applied, by petition, to the County Court of Coles county, for leave to sell lands to pay the debts of the deceased.