Volume 43 — Illinois Reports

Writ of Error to the Circuit Court of the county of Cumberland; the Hon. Hiram B. Decius, Judge, presiding. On the 16th day of February, 1865, Arthur Teader, with Edwin S. Norfolk and Benjamin G. Glenn, his bail, entered into a recognizance, for his appearance at the next term ,of the Circuit Court of Cumberland county, to be held in the ensuing month of March, to answer to a charge of larceny.

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. D. M. Woodson, Judge, presiding.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>Writ of Error to the Circuit Court of Adams county; the Hon. O. C. Skinner, Judge, presiding.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

Joseph Gillespie, Judge, presiding. This was an action brought by Madison county, before a justice of the peace, against Richard McDonald, to recover $4.74, the amount of road tax assessed upon his personal property. On a trial had by the justice, a judgment was rendered against the county. An appeal was prosecuted to the Circuit Court.

<p>Attorney and client—when relation ends—subsequent acts of attorney. An attorney employed to collect a debt, prosecuted suit, which resulted in a sale of land upon execution. After the time for redemption had expired, he received and paid redemption money to the plaintiff in execution, who before that time had transferred the certificate. Held, {¡¡hat the relation of attorney and client ended after the time for redemption expired, and that the attorney could do no act in the matter without new authority; held, also, that the attorney was liable to the defendant in execution for the money so received.</p>

<p>Witness — competency. A person interested in establishing a liability whereby he is to be benefited cannot be a witness in that regard. He cannot be permitted to do indirectly what the law forbids to be done directly.</p>

Writ of Error to the Circuit Court of the county of Macon; the Hon. Charles Emerson, Judge, presiding. This was an action of replevin, brought by Henry C. Waterman, in the Fayette Circuit Court, against John T. Dalton, for the recovery of a quantity of goods, wares and merchandise.

John M. Soott, Judge, presiding. This was an action of assumpsit, brought by the appellee against the appellant, in the Circuit Court of De Witt county. The cause was tried, by a jury, and verdict given in favor of the plaintiff for $1,150. The defendant made a motion for a new trial; whereupon, the plaintiff remitted $119 of the verdict,. and the court overruled the motion for a new trial, and rendered judgment, for $1,031. The cause is brought here by appeal.

Writ or Error to the Circuit Court of Morgan county; the Hon. D. M. Woodson, Judge, presiding. This was an action of assumpsit commenced to the September Term, A. D. 1865, of the Circuit Court of Morgan county by Albert A. Mitchell against Jacob H. Dietrich, as guarantor of a promissory note. The declaration contained four counts.

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was a suit in chancery, brought by Joseph Gartside, in the St. Clair Circuit Court, against The City of East St. Louis, to restrain the enforcement of an ordinance, requiring persons, hauling coal in wagons within the city limits, to first procure a license for the purpose.

W. H. Green, Judge, presiding. This was a ease of the trial of the right of property before the sheriff of Perry county. The property was levied upon by the sheriff, by virtue of two executions against Joseph Farrell, the husband of the claimant—one execution was in favor of W. F. Enders & Co., the other in favor of Nicholas Patterson. The executions were both levied upon the same property.

Weit of Eeeoe to the Circuit Court of Fayette county; the Hon. Chables Emebsoh, Judge, presiding. This was an action of assumpsit, brought by Isaac Watts against Ebenezer Capps, in the Circuit Court of Fayette county.

<p>Appeal from, the Circuit Court of Shelby county; the Hon. Charles Emerson, Judge, presiding.</p> <p>This was an action of trespass on the case brought by Abram Middlesworth, in the Shelby Circuit Court, against the Hlinois Central Railroad company. The declaration contains three counts. The first for negligence, in failing to fence their track, whereby the stock was killed. The second and third for killing the plaintiff’s mules, by the negligent management of the engine and cars of the company in operating their road. The plea of the general issue was filed.</p> <p>A trial was had by the court and a jury. It appears that plaintiff had a large herd of mules in a pen adjoining the roadway of defendant, the fence on the side of the road forming one side of the lot in which the mules were confined. That the mules broke into the road, and a passing train killed twenty-two of the herd, worth, as it was agreed, $2,840.</p> <p>Plaintiff introduced evidence to prove negligence on the part of the employees of the road, and defendant, testimony to prove care and diligence. Among other instructions asked by defendant, the court refused to give his fifth and sixth, which are as follows:</p> <p>“5. That, although the defendant may have been guilty of negligence in the management of the train in question, yet if the plaintiff was also guilty of a want of proper and reasonable care and prudence on the occasion by placing so many mules in an inclosure of the size as stated, he knowing the habits and disposition of the mules when frightened, then, unless the proof shows that the conduct of the engineer was negligent, and not merely careless and imprudent, the law is for the defendant, and the plaintiff cannot recover for the damage done.</p> <p>“ 6. That the plaintiff cannot recover upon the second and third counts in said declaration, unless it is proved to their satisfaction that the servants of defendant were negligent in the mangement of the train.”</p> <p>The jury found a verdict for the plaintiff, and assessed the damages at $2,810. Defendant entered a motion for a new trial, which was overruled, and judgment rendered on the verdict, and defendant, to reverse the judgment, prosecutes this apppeal.</p>

Witrr of Ebbob to the Circuit Court of Coles county; the Hon. O. L. Davis, Judge, presiding. This was a suit in chancery, commenced in the Coles county Circuit Court, by Aaron Bliss and Thomas Lytle against the defendants in error.

John M. Scott, Judge, presiding. This was an action brought by Wren against the Illinois Central Railroad Company, before a justice of the peace, to recover the value of a cow killed by a passing train in the town of Clinton. The plaintiff recovered a judgment before the justice for fifty dollars, from which the defendant took an appeal to the Circuit Court.

Joseph Gillespie, Judge, presiding. This was a bill in chancery, filed by the Trustees of the First Congregational Church,- in the Bond Circuit Court, against Robert Stewart.

Writ of Error to the Circuit Court of Mason county; the Hon. Jambs Harriott, Judge, presiding. This was a bill in chancery, filed in the Circuit Court of Mason county, at the June Term, 1865, by John Durham, against the commissioners of highways of the town of Pennsylvania, in that county, to restrain them from opening a public highway across certain lands described in the bill, and claimed by Durham as owner in fee. The lands, were alleged to be inclosed and cultivated.

D. M. Woodson, Judge, presiding. This was an action of assumpsit, brought by Elam M. Sanford against Elizabeth Rawlings, to recover the value of a marble monument, furnished by the former to the latter, to be erected over the grave of her deceased husband. The case was tried at the March Term, A. D. 1866, of the Morgan Circuit Court. The jury found a verdict in favor of the defendant, upon which judgment was rendered by the court. The case is brought here by appeal.

Writ of Error to the Circuit Court of Edgar county; the Hon. Justin Harlan, Judge, presiding. This was an action of trespass vi et a/rrnis brought by James M. Board, in the Edgar Circuit Court, against Matthew M. Dodds, John J. Logan, Fergus M. Blair and Ephraim S. Wolf. The declaration proceeded for an assault and battery, by illegally arresting plaintiff and falsely imprisoning him. Each of the defendants, except Logan, filed separate pleas of not guilty.

David M. Woodson, Judge, presiding. This was a bill in chancery, filed by Murray McConnel in the Circuit Court of Morgan county, against John H. Dickson, A. C. Dickson and George M. McConnel, alleging that John H. & A. C. Dickson, and Geo. M. McConnel, in February, 1860, entered into partnership, under the firm name of A. C. Dickson & C®.

Charles B. Starr, Judge, presiding. This case was heard in the Supreme Court at the January Term,. 1865, and remanded for the purpose of allowing the appellee to explain, if he could, the reason of the delay in the institution of his suit. The case is reported in 36 Ill. 396.

James Habbiott, Judge, presiding. On the 28th day of March, 1865, John B. Wright filed the requisite affidavit, upon which a garnishee summons issued against George Williamson, Jacob Mowder and James Blakeley, school directors of school-district Ho. 4, Township 21, H. Range, 8 E., and Eli 0. Fisk, township treasurer, which was served on each of them.

<p>1. Pleading—variance between allegations and proofs. Where, in an action against a railroad company for the killing of a horse, the declaration simply averred it to be the duty of the company to erect, maintain and keep in repair the fences on its roadway, and, that, by means of neglect in keeping them in repair, the horse had strayed upon the track and was killed,—held, that testimony showing that the horse strayed upon the track through a gate at a farm crossing, which had been left open, was inadmissible, as the declaration contained no averment, that the gate was not kept closed. A plaintiff can only prove what he alleges.</p> <p>2. Neglect in maintaining and keeping in repair a fence, whereby a person is injured in his property, is a ground of action totally distinct from that of carelessness in leaving open a gate on the line of the fence; and, when an action is predicated upon the latter ground, it must he so averred in the declaration.</p> <p>3. Same — deela/ration must state material facts. The declaration, in every case, must contain a full and explicit statement of all the material facts upon which a recovery is sought, that the defendant may he prepared to meet them.</p> <p>4. Instructions—u/pon matter inadmissible in evidence. It is error for the court to instruct the jury upon matters inadmissible in evidence under the pleadings, but which, in fact, were admitted in proof.</p> <p>5. Eailroad companies—Mobility for negligently leaving open gate —- and when not Viable. A railroad company is not required to keep a patrol on the line of its road to see that the gates at farm crossings are kept closed; but, if its employees, seeing such a gate open, do not close it, when not opened by a person to whom an injury afterward results, the company is liable for such injury. If, however, the gate is opened by the person injured, and by his neglect left open, no action will lie for an injury resulting to him, by reason of such act and neglect.</p>

Wbet of Ebbob to the Circuit Court of Monroe county; the Hon. Silas L. Bryan, Judge, presiding. This was a suit in chancery, instituted in the court helow by the defendants in error, the heirs at law of Amasa Wheeler, deceased, against the plaintiffs in error. The bill was filed for the purpose of setting aside a sale of land made by the administrator for the payment of debts, under an order of court; and an account of the rents and profits.

Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward Y. Rice, Judge, presiding. This was a petition, filed by Buth Brown, for the assignment of dower, in two lots in the city of Springfield, in the Sangamon Circuit Court, against Bobert McKee. It appears, that petitioner was the widow of Delos W. Brown, who was, in the autumn of 1853, recognized to appear at the next term of the Circuit Court to answer a charge of manslaughter.

<p>1. Surety—extent of UabUiiy. The general role is, that the undertakings of a surety are not to be extended beyond the fair scope of the terms expressed, but are to be strictly interpreted.</p> <p>2. So, where, by an act of the legislature, assignees were appointed to wind up the affairs of the Bank of Illinois, at Shawneetown, and were required to give bond, and allowed four years in which to discharge the duties assigned them under the act, and the time of final settlement was, by the legislature, afterward extended two years, it was held, that this extension of the time without the assent of the sureties, operated as a discharge, and that the sureties could not be held liable for the acts of their principal after the expiration' of the four years.</p> <p>3. But, where, by the act appointing the assignees, it was made their duty to meet at the bank on a day named in each year, to cancel and burn all notes and certificates of indebtedness redeemed and canceled, and make report to the governor of the amount of assets remaining in their hands, and of the notes and certificates canceled; and where a decree in the United States Circuit Court required such assignees to account and pay over to a trustee appointed, the amount found to be due from them as assignees, and the assignees neglected and failed to perform any of said duties,—it was held, that the sureties of the assignees were liable for the amounts shown to have been by the assignees received and not paid over, during the four years. It was competent for the sureties to have discharged the liabilities and to have had recourse upon their principals.</p> <p>4. Plea—when demwrahle. It is a well established rule of pleading, that if facts are alleged in a special plea which can be given in evidence under the general issue, such a plea is obnoxious to a special demurrer.</p> <p>5. So, where the plea of non eat factum, not sworn to, was interposed in an action of debt, being the general issue, it put in issue every feet in relation to the execution of the bond, except the feet of the signature of the pleader, and therefore the fects that other signatures either as sureties or witnesses, were ■wrongfully placed on the bond, after that of the pleader, could properly be given in evidence under such a plea; and hence, a special plea alleging these facts is bad on special demurrer.</p>

Wbit of Ebbob to the Circuit Court of Coles county; the Hon. James Steele, Judge, presiding. This was an .action of assumpsit, brought by Parker and Plumbe, in the Coles County Circuit Court, against Douglass, wherein, upon trial by the court at the October Term, 1866, the issue was found for the plaintiffs.

Writ of Error to the Circuit Court of Champaign county; the Hon. Oliver L. Davis, Judge, presiding.

Joseph Slblet, Judge, presiding. This was an action of assumpsit, brought by the appellee, in the court below, against the appellant, upon two promissory notes, one for the sum of $50 and the other for $100. The cause was tried before a jury, who rendered a verdict for $169.20 against the defendant, upon which judgment was rendered ; whereupon, an appeal was taken to this court.

Writ of Error to the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding. ■ The facts in this case are sufficiently stated in the opinion of the court.

Wbit oe Eebob to the Circuit Court of Fulton county; the Hon. C. L. Higbee, Judge, presiding. George Titman filed a hill in chancery, in the Circuit Court of Eulton county, at the June Term, 1861, against Joshua J. Moore and Ann A. Moore, his wife, asking for the foreclosure of a mortgage. There was a decree entered by default, and a sale thereon. In February, 1863, the master made his report of the sale to the court, and it was approved.

Oliver L. Davis, Judge, presiding. This was an action of trespass, brought by the appellee in the Circuit Court of Coles county, against the appellants, Frederick Austin, Charles Rhodes, Lorenzo Lee and Edward Dawson. The cause was tried before a jury at the April Term, 1866, of said court, and a verdict of guilty rendered against the defendants, and damages assessed severally against them.

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action prosecuted against the appellant, before a police magistrate of the city of Belleville, to recover the penalty for a violation of an ordinance of said city, requiring bankers to take out a license. Trial was had, and the appellant found guilty, and a fine of fifty dollars and costs of suit imposed.

Writ of Error to the Circuit Court of the county of Hancock ; the Hon. Joseph Sibley, Judge, presiding. This was a suit brought by Canfield S. Hamilton, by attachment, in the Hancock Circuit Court, against Samuel H. House. A writ was issued to the sheriff of that county, who went to the county of Knox, where he levied upon property of the defendant, which he had taken there several days previous.

John M. Scott, Judge, presiding. This was a petition for a peremptory mandamus, filed in the court below by the relator, William Hargadine, the… Held: and which he had received from one J. C. Webster, then á master in chancery of said court, and the predecessor of said Littler, at a foreclosure sale of the same, made by the said Webster; said Hargadine claiming, that no redemption for the same had ever been made, and that the period for exercising that right had elapsed.

Aaron Shaw, Judge, presiding. This was a suit in chancery, instituted in the court below by John Clodfelter against Abel Ridgely, to compel the specific performance of a contract. The opinion of the court contains a sufficient statement of the case.

John M. Scott, Judge, presiding. This was an action of assumpsit brought by Robert Thompson, John M. Major and Charles S. Janes, in the McLean Circuit Court, against Charles E. Hovey. The declaration contained the common counts, to which defendant filed the general issue. The case was subsequently taken by change of venue to the Circuit Court of De Witt county. A trial was had by the court and a jury.

<p>1. Railroad companies. A recovered a judgment against the Terre Haute, Alton and St. Louis Railroad company, for work and labor performed for it, and subsequently the road was sold, and its purchasers were, by an act of the legislature, passed February, 1861, incorporated as the St. Louis, Alton and Terre Haute- Bailroad company, under which they organized, and which act provided, among other things, that, as a condition precedent to its operation, they should pay all unsatisfied judgments which had been recovered against the former company for work and labor done for it. In an action of debt, brought against the St. Louis, Alton and Terre Haute Bailroad company, upon this judgment,—Held, That the company was liable, it having succeeded, under said act, to all the corporate powers, privileges and franchises of the Terre Haute, Alton and St. Louis Bailroad company, and having assumed, in consideration of such grant, to pay and discharge all judgments of such a character, remaining unsatisfied against said company last named.</p> <p>3. In such case, it was not necessary, that the act should provide a specific remedy in favor of judgment creditors, in the event of the non-payment of their judgments, as, whenever a statute imposes a duty or liability, the common law affords the remedy, either by the action of debt or assumpsit, as the case may be.</p> <p>3. This act of incorporation constituted an agreement between the State and the St. Louis, Alton and Terre Haute Bailroad company, by the making of which the defendant, became liable to pay the judgment in question.</p> <p>4. Action of debt—proper remedy on judgment record. The action of debt is the proper remedy on a judgment record.</p> <p>5. While the State might revoke the grant made to the St. Louis, Alton and Terre Haute Bailroad company, because of its exercise of the franchise before condition performed, yet, the act did not design, that judgment creditors should be dependent upon the action of the State in the matter, as such action could not in any way benefit the creditors, or relieve the company from the obligations it had assumed.</p> <p>6. Pleading—declaration in such ease—when sufficient. In such case, no consideration need be averred or proved. It is sufficient, if it appear by proper averment that the judgment was obtained for work and labor performed on the road, and that it has not been satisfied.</p> <p>7. Same — as to surrender of judgment. Nor was it necessary that there should have been an averment, that the judgment had been surrendered, or transferred to the defendant. This the plaintiff was not bound to do, or offer to do, until an amount sufficient to satisfy the judgment had been tendered. Section 7 of this act, has no application to this case.</p> <p>8. -Same —what sufficient allegation that judgment had not been settled. An averment in the declaration that the judgment sued upon had not been paid, or satisfied, is equivalent to an allegation that it had not been settled or arranged, and under such allegation, the defense was open to prove that it had been settled.</p> <p>9. Same—presumption that a claim is just, which has passed into judgment. In an action brought upon a judgment, the declaration need not aver that the claim upon ¡which such judgment is founded, was a just one. The original claim having been sanctioned by the judgment of a court of competent jurisdiction, the presumption is, that it was just.</p> <p>10. Same—of notice of the judgment. Under the act, an averment of notice to the defendant of the existence of the judgment was not required. It was bound to ascertain for what judgments, and the amount, it had become liable to pay, and to pay them before it took active possession .of its franchise.</p> <p>11. Damages—when may he computed hy the cowrt. The rule is well settled, that in an action of debt upon a judgment record, for a sum certain, the damages may be computed by the court, without the intervention of a jury-</p> <p>12. Same —in all cases of judgment hy default—assessed hy the court unless jwry is demanded. Under the act of 1868, in all cases of judgment rendered by default, the court is allowed to hear the evidence and assess the damages, unless a jury is demanded.</p>

<p>1. Consideration—want of— what constitutes. A plea to an action on a promissory note, which sets forth facts showing that it was given with no other consideration than that of natural affection, presents an unquestionable defense, when pleaded as an original want of consideration.</p> <p>3. Same—natural affection sufficient for a deed, but not for am, executory contract. The law is well settled, that natural affection constitutes a valid consideration for a deed, but not for an executory contract.</p> <p>3. Pleading—a plea which states facts, showing a wmt of consideration — pleaded as a failme of consideration—bad on demurrei'—when assigned as such. On demurrer to a plea in an action on a promissory note, when the plea sets forth, that the note was given by one of the defendants, to secure the support of his mother during her natural life, and for no other consideration and that by a parol agreement the note was to be surrendered at her death, as null and void, and, that she was dead,—Held: That such facts present a good defense, when pleaded as a want of consideration.</p> <p>4. Had the note been originally valid, the parol agreement to surrender it could not destroy its effect, and viewed merely in that respect, and as a plea of failure of consideration, it would be demurrable.</p> <p>5. That portion of the plea setting up the parol agreement, might be rejected as surplusage, and then the remaining fects in the plea, pleaded as a want, instead of a failure of consideration, would have been good both in form and substance.</p> <p>6. The plea being objectionable only for surplusage, and as having been drawn as a plea of failure instead of want of consideration, but this latter defect not having been assigned as cause of demurrer, the plea should have been permitted to stand.</p>

John M. Scott, Judge, presiding. This was an action of debt, brought by the president and trustees of the town of Chenoa, before a justice of the peace, against the Toledo, Peoria and Warsaw Railroad company, for the recovery of a penalty for a breach of an ordinance of the town. Plaintiffs recovered a judgment on a trial before the justice of the peace.

This was an application for a peremptory mandamus against Samuel F. Greer, county judge of Macon county. The agreed facts in the case are as follows: In December, 1866, a ca. sa. was issued out of the Circuit Court of Macon county, upon a judgment before then recovered in said Circuit Court, against the relator, and in favor of one Peter Fob, in an action on the- ease, for an alleged seduction of Fob’s daughter.

John M. Scott, Judge, presiding. This was an action of debt, instituted in the court below, by the board of supervisors of McLean county, against Thomas Fell and his sureties, on his bond as treasurer of said county, to recover a certain sum of money which he had retained as commissions on a war fund raised by a special tax, during the years 1861, 1862 and 1863, under the act of 1861, entitled, an act, “ To encourage the formation and equipment of volunteer companies.” The…

This was an application to this court for a peremptory writ of mcmdamm, on the relation of James Clemens, Jr., against George W. Smith, State treasurer, and O. H. Miner, auditor of public accounts. The facts in the case are fully stated in the opinion.

Oliver L. Davis, Judge, presiding. This was an action of assumpsit, commenced on the 21st of February, 1865, by Milton W. Howard, in the Vermillion Circuit Court, against John H. Gass and Harvey Sandusky. The declaration contained a special count upon the assignment of a note, with the common counts. At the return term, the cause was continued on the application of the defendants, based on an affidavit.

'Writ of Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding. The facts in this case are fully stated in the opinion of the court.

<p>1. DEED-h es~e~d-Te~e~se of-ft~ effeet. Where the owner of land, residing upon it, since the passage of the ainendatory homestead law of 1857, with his wife, executes a deed of conveyance therefor, but they fail to relin~uishthehomeeteadexemption; ?~eZd, that such a conveyance operated to pass the fee, but suspends its operation until the grantor abandons the premises, or surrenders the possession to the grantee.</p> <p>3. Where a party conveys the homestead, and the exemption is not relinquished in the mode prescribed by the statute, the grantee does not acquire such a title as would authorize a recovery in ejectment, or to defend against his grantor still remaining in possession, in an action for trespass to the premises.</p> <p>3. Homestead—judgment lien. It is the law of this court, that the homestead, when occupied by the debtor, as such, is not subject to the lien of a judgment, and its sale by the debtor and a surrender of the possession to the purchaser, who was a junior judgment creditor, is valid against a prior judgment.</p> <p>4. Same—excess above the exemption. Where the homestead exceeds §1,000 in value, a judgment, mortgage, or deed of trust becomes a lien and may be enforced against the overplus; and the same is true of the excess, where there is a conveyance without a release of the exemption, as the grantee may enforce his rights to the surplus.</p> <p>5. Same—homestead exemption not an estate. The homestead act has not created a new estate, but simply an exemption, and where the holder of the homestead conveys, without relinquishing the exemption, he transfers the fee, but the operation of the deed is suspended until the premises are abandoned or possession is surrendered. The act will not bear the construction, that an estate is created which may be transferred and held by others than those specified in the statute. Such was not the legislative intention.</p> <p>6. Same—sale —possession. Where a sale by a trustee, and the trust deed . under which the sale is made, does not release the homestead exemption, and the grantee is let into possession, he will hold the premises against a subsequent purchaser under a sale on a deed of trust which does release the exemption.</p>

Writ of Error to the Circuit Court of Gallatin county; the Hon. Wesley Sloan, Judge, presiding. , The facts in this case are fully stated in the opinion.

<p>■Appeal from the Circuit Court of Madison county; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>At the Hovember Term, 1865, of the probate court of Madison county, the will of one Andrew Black, after full consideration thereof by the court, upon proper proofs, was admitted to probate and record. At the same term, one of the devisees under the will, and child and heir-at-law of the said Black, prayed an appeal to the Circuit Court, from the order admitting the said will to probate, which was granted. On the appeal, the will was sustained, whereupon the case was brought to this court by appeal, and by agreement of counsel, only two points are presented by the record for its decision, w'hieh are stated in the opinion of the court.</p>

<p>1. Sheriff’s return—lecme to amend.- Seld, that the. court may grant leave to a sheriff to amend his return to process either before or after a decree is rendered in the case, and that it is not error to grant such leave without notice to-the opposite party. The return is not the service, hut only the evidence of it. The officer makes the return to process at his peril; if false, he is .liable to an action for the false return.</p> <p>2. Decebe—error on a, bill of review. Where a decree of foreclosure finds the amount of the debt due, and under a provision in the mortgage authoriz,ing a decree for an attorney’s fee, and for expenses of the mortgagee in bringing suit, and the master reports an attorney’s fee of ten dollars, and the mortgagee two dollars for expenses, which is approved, hut the court, in rendering the decree, added twelve dollars as an attorney’s fee, but nothing for expenses: XLeld, the amount being the same,, there was no error in the decree.</p> <p>3. Same—error removed by sale of property. Where the purchaser of ■the equity of redemption of .mortgaged property is made a defendant to a hill to foreclose, it seems to he error to render a decree, that he pay the mortgage -debti The decree should he against the mortgagor, but by the sale of the ■mortgaged premises in satisfaction of the'debt, the error is removed, and aá the purchaser of the equity of redemption thus ceases to he liable, he-cannot ■impeach the decree on a bill of review.</p> <p>4. Decebe—sale under—redemption. Under the statute a mortgagor- has twelve months within which to redeem the premises sold under a decree of ■foreclosure, and the purchaser of the equity of redemption succeeds to the rsame rights, and where he is made a party to a foreclosing, he mhst redeem-within that time or he barred. Not being a judgment Creditor he cannot ■claim a longer period.</p>

<p>1. Partnership—as between the parties—what is .not. R, residing ia Mississippi, made an offer in writing to M., a resident of Illinois, to form p. co-partnership in the buying and selling of twenty horses, the same to be purchased by M. and sent to R, to he sold by him in Mississippi, which said offer M. accepted, and afterward in transacting the business, purchased twenty-seven horses, all of which he disposes of at other places, and without the knowledge of R., and a loss occurred r—Meld, that M. could not maintain a bill as partner of R. for an accounting, or contribution for the loss sustained.</p>

<p>Vendos—when cannot defeat Ms own sale by a subsequent acquisition of title. Where a vendor sold chattels, which, at the time of such sale, he had no title to, but afterward acquired the title, and without having paid any new consideration therefor, he cannot, by virtue of such subsequently acquired title,- defeat the sale to his vendee.</p>

<p>1. Hbed—mental weakness of grantor. Where a bill is -filed fey a part of the heirs of a deceased person, to set aside a deed of conveyance to another heir, on the ground, that the grantor was mentally too wéak and imbecile to be capable of executing such an instrument,.and it appears from the evidence, that he manifested prudence and judgment in determining the best mode of having the conveyance take effect after his death, it will not fee’ presumed, that he was Mentally too weak to execute such a conveyance.</p> <p>3. Same—consideration. Where a father-in-law makes a deed to his son-in-law, to be held as an escrow until after the death of the grantor, before delivery, with the agreement, that the grantee pay a price fixed by them, and that the grantee and wife shall reside near him, and he shall render assistance and contribute to the comfort of the grantor and his wife so long as they live courts will not be rigid in scrutinizing the relative value of the property and the money paid as the consideration. The owner of property has the legal right to dispose of it as he may choose, and may distribute it among his children during his life, instead of by will, and if in doing so, he makes a part of his heirs the recipients of his bounty beyond others, the remaining heirs have no legal right to complain.</p> <p>3. Same—mistaJce— corrected im equity. Where, in preparing a deed for execution, the scrivener misdescribes the property, when made satisfactorily to appear, a court of equity will correct the mistake and reform the deed.</p>

<p>1. Stipulations—binding force of. Where the parties to a suit, enter into a stipulation, and agree, that a decree shall be entered therein according to the case made by the pleadings, and that said decree shall be entered of the term at which said agreement was made, — held, that, the agreement being a mutual one, neither party could take any further steps in the cause, and that a decree should have been entered in conformity with it.</p> <p>2. Same—verbal agreement to dismiss suit. This court has held, in a suit at law, that a verbal agreement between the parties to dismiss the suit, must be complied with.</p>

<p>Writ of Error to the Circuit Court of ¡Richland county; the Hon. Aaron Shaw, Judge, presiding.</p> <p>The facts in this case are fully stated in the opinion of the court.</p>

<p>Tbtjstee—what constitutes. The mere fact, that a purchaser is the son-in-law of the grantor does not constitute the purchaser a trustee of the vendor. And when it appears, that the vendor and vendee while on friendly terms were not intimate, and when the purchaser had not acted as the agent or business adviser, and it does not appear, that the vendor said any thing which implied that she relied upon the vendee to act as her agent in the matter, it will not be presumed, that such confidence was reposed as required the purchaser to disclose the fact, that he had superior knowledge of the value of the property^ or that he was authorized by the remaindermen to offer more than he gave for the life estate of the vendor in the property.</p>

<p>National banks—shares of stock in, exempt from taxation. The action of a board of supervisors, in abating taxes levied under the laws of this State, upon shares of stock in national banks, will be affirmed by this court, in accordance with the decision of the Supreme Court of the United States in the case of Bradley v. The People of the State of Illinois, 4 Wallace, 457.* </p>

Writ of Error to the Circuit Court of Jersey county; the Hon. David M. Woodson, Judge, presiding. This was a proceeding instituted in the court below, by Joshua Neely, the appellee, under the forty-sixth section of the practice act of 1845, asking for an order to stay an execution issued on a judgment in favor of David T. Bonnell, the appellant, against one Philip English.

<p>Writ oe Error to the Circuit Court of Clark county; the Hon. Charles H. Constable, Judge, presiding.</p> <p>This was a bill in chancery, filed by Joseph S. Allison, John Bartlett, Frederick Quick, William McKeen, Robert Houston, Stephen Archer, William Keel men, Henry T. Rautt, William B. Leslie, James McCabe, Franklin Mark and William Reddick, in the Clark Circuit Court, against Allen B. Briscoe and Charles Stroever, to restrain, the collection of a tax levied on property in the town of Marshall, in that county.</p> <p>The hill alleges, that the hoard of supervisors of the county, on the 28th day of January, 1865, passed a series of resolutions by which the county offered a bounty of $100 to each person who would volunteer, and be accepted into the military service, and be credited to the quota of the county. Also, a like bounty to all such persons who might be drafted, and should furnish a substitute accepted into the service on such quota.</p> <p>On the 7th day of January, 1865, the general assembly 'adopted an act applying to Clark, and some other counties, by which the county authorities were empowered to levy a tax for bounties to be paid to persons enlisting in the military service of the United States.</p> <p>At the March Term, 1865, the board of supervisors passed resolutions confirming those adopted in January, and offering a like bounty to any person who might enlist, or be drafted, or who might, after being drafted, furnish a substitute, who should be received into the service on the quota of any town in the county. The clerk of the County Court was authorized to issue a county order for that sum, to each person coming within the provisions of the resolutions.</p> <p>It appears, that a number of such orders were issued after the adoption of the order in January, and before the passage of the law in February. That others, were issued after the adoption of the law, and before the passage of the resolutions at the March Term. Still other orders were issued ^after the adoption of these latter resolutions, and there were a few orders issued to drafted persons.</p> <p>The board of supervisors laid a tax on the taxable property of the county, to raise a sufficient fund to redeem these county orders. The tax was extended upon the collector’s books, which were placed in his hands for collection, and he was about to enforce the same, when this bill was filed to restrain him therefrom, upon the alleged ground that the levy was illegal and void.</p> <p>. A temporary injunction was granted. Answers were filed, and replications thereto. A hearing was had on the bill, answers, replications and exhibits, when the court rendered a decree, making the temporary injunction perpetual. To reverse which, defendants prosecute this writ of error.</p>

Writ or Error to the Circuit Court of Edgar county; the Hon. O. L. Davis, Judge, presiding.

Writ of Ebeob to the Circuit Court of Mason county; the Hon. James Harriott, Judge, presiding. The facts in this case are sufficiently stated in the opinion.

Edward Y. Rice, Judge, presiding. This was a proceeding commenced by the St. Louis, Jacksonville and Chicago Railroad company before a justice of the peace of Morgan county, for the purpose of condemning a portion of the grounds owned and used by the State, for the maintenance of the institution for the education of the blind, situated in the city of Jacksonville, for depot purposes. Three commissioners were appointed to examine and condemn the property.

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

D. M. Woodson, Judge, presiding. This was a suit in chancery instituted in the Morgan county Circuit Court, by the appellee, as administratrix of the estate of her husband, George H. Richards, to foreclose a certain mortgage, executed by one William Lamb and wife, to the said George H. Richards. The facts in the case are fully stated in the opinion.

Writ of Error to the Circuit Court of Montgomery county; the Hon. Charles Emebsoft, Judge, presiding. This was a bill in chancery, filed by Ebenezer Hoyes, in the Coles Circuit Court, against Frederick E. Radcliff, David V. H. Radcliff, William Wyman, the Illinois Central Railroad company, and the Terre Haute and Alton Railroad company.

<p>1. Parties—suing as joint contractors—must show joint interest. Where plaintiffs sue as joint contractors, they must show a joint interest in the subject matter of the suit.</p> <p>2. Same—common law not changed. And section 7, chapter 40, of the act entitled, “Evidence and depositions,” does not change the common law in this respect; it simply dispenses with certain proofs, which, at common law, persons suing as joint obligees partners or payees were required to make, under the.general issue.</p> <p>3. Same—objection—how taken, as to nonjoinder, or misjoinder, of parties plaintiff. In actions on contracts, if there are too few or too many parties plaintiff, it is fatal to a recovery, and the objection may be taken either by plea in abatement, or as a ground of nonsuit, upon the trial, under the plea of the general issue.</p> <p>4. Evidence—variance between and declaration—effect-of. Where, in an action on a contract, the declaration alleges, that four persons, plaintiffs, made it, with the defendant, and the proof shows, that but three of them made it, or that the four named, together with another not named, made it,' such allegations are not supported by the proof, and the variance is fatal. A plaintiff, under the plea of the general issue, is bound to prove his case as stated in his declaration.</p> <p>6. Partnership—what constitutes—effect of particular agreements between parties. Where A and B, as partners, and C and D, as partners, comprising distinct firms, make a contract with E, to funish him a certain quantity of wool, and agreed among themselves, to share profit and loss in the speculation, each firm to furnish a certain proportion of the wool,—Meld, that as to such transaction, they could not be considered as partners between themselves, or as to third persons.</p>

<p>1. Insurance—of a mortgage interest—what constitutes the same—agreement to redeem—effect of—rights of mortgagor. A owned certain premises and mortgaged them to B; afterward, he procured insurance upon them, and then sold to C, at the same time assigning to him the policy of insurance, by consent of the company. B commenced suit for the foreclosure of his mortgage, making A and C parties, but the litigation was subsequently compromised, by an agreement in writing, that B should take a decree for an amount equal to the face of the claim, and, in consideration therefor, A and C should have two years from the day of sale to make redemption. A decree was entered, providing for redemption, within fifteen months; and sale was accordingly had, and the premises bid in by an agent of B, the mortgagee, and afterward, in about fourteen months and eight days after the sale, were destroyed by fire. In an action by C against the insurance company, to recover the amount of the insurance, held, that, had a third person, for a valuable consideration, and without notice, acquired title under the decree, within the two years, his rights would be governed by it, without reference to the ageeement.</p> <p>3. The premises having been purchased by the plaintiff's in the foreclosure suit, as against them, the agreement is operative.</p> <p>3. The proof shows, that the decree and agreement were made together, one being the consideration for the other, and there is no inconsistency in permitting both to stand, it being the undoubted intention to give the defendants two years’ redemption.</p> <p>4. Under this agreement, the subsisting relation of mortgagor and mortgagee was substantially continued, and a tender by defendants of the redemption money at any time within the two years, would have been good.</p> <p>5. At the time of the fire, C’s position was that of a mortgagor, with a right to redeem; and, as such, he had a substantial, insurable interest, which estate could not have been lost until the expiration of the time for redemption.</p> <p>6. It was not necessary, that the insurance company should have been a party to the agreement, and the proceedings in the suit of foreclosure and sale determine clearly that C did not thereby lose his right of redemption.</p> <p>7. Sale—at sheriff’s or master’s sade—when purchaser acquires new title. In this State, a purchaser at sheriff’s or master’s sale acquires only a lien; no new title vests until the period of redemption has passed.</p> <p>8. Deed—relates back to commencement of lien. But, his deed will relate back to the beginning of his lien, in order to cut off intervening incumbrances. The title only becomes absolute when the right to a deed accrues.</p> <p>9. Mortgagor—estate of before and after decree and sale. By a sale under a decree of foreclosure, the estate of the mortgagor remains the same, with this qualification, that the decree and sale, the amount and time of redemption, have become fixed, and a failure to redeem within the allotted time, divests his estate.</p> <p>10. Same—may insure full value of the property, and homing right of redemption, may recover loss. It is well settled, that a mortgagor may insure to the full value of the property, and recover the sum insured, if, at the time of the loss he had the right of redemption; and this, even though the premises have been taken by the mortgagee.</p>

Wett of Error to the Circuit Court of Sangamon county; the Hon. Edward T. Bice, Judge, presiding. This was a suit in equity brought by Phineas W. Taintor, in the Sangamon Circuit Court, against Isaac Keys, David L. Phillips, Alexander Edgeman and George Carter. The bill alleges that complainant was, on the 15th day of July, 1861, the owner of the equity of redemption of forty acres of land lying near the city of Springfield.

<p>Pleading. A, who was city marshal, arrested B for violating a city ordinance against obstructing a street. In an action of trespass by B against A for making the arrest, A pleaded justification under the ordinance; but the ordinance, as set out in the plea, simply declared the obstructing of a street a misdemeanor, without declaring a penalty, or giving to municipal authorities jurisdiction of the offense. On demurrer to the plea, — held, that such plea did not show that the city was entitled to recover a fine, impose a penalty, or issue process of any kind for the offense, and was therefore bad.</p>

<p>Appeal from the Circuit Court of Jersey county; the Hon. David M. Woodson, Judge, presiding.</p> <p>The facts in this case are sufficiently stated in the opinion.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. O. L. Davis, Judge, presiding.</p> <p>The facts of this case are fully stated in the opinion of the Court.</p>

James Steele, Judge, presiding. This was an action of assumpsit brought by the appellant against the appellee, in the Clark County Circuit Court, and taken thence by change of venue to the Edgar County Circuit Court. The facts in the case are fully stated in the opinion.

<p>Appeal from the Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding.</p> <p>The facts in this case are fully stated in the opinion of the court.</p>

Isaac G-. Wilson, Judge, presiding. This was a suit in chancery, instituted in the court below by the appellants, Daniel B., Mary E. and Armeda Heartrunft, by their next friend, Levi Heartrunft, against the appellees, Hamilton C. Daniels and Allen C. Tundt, to compel the execution of an alleged trust.

Writ of Error to the Circuit Court of Lee county; the Hon. W. W. Heaton, Judge, presiding. The facts in this case, are fully stated in the opinion.

<p>Appeal from the Court of Common Pleas of the city of Aurora; the Hon. B. Gr. Montony, Judge, presiding.</p> <p>The facts in this case are fully stated in the opinion.</p>

Joseph Sibley, Judge, presiding.. This was an agreed case, in the Knox Circuit Court, for the purpose of obtaining the opinion and judgment of the Circuit Court upon a chattel mortgage. A declaration was filed by George B. Babcock against John McFarland averring a trespass by taking certain articles of personal property of the plaintiff which he refused to return on demand. A plea of not guilty was filed.

Writ of Ebbob to the Circuit Court of Livingston county; the Hon. Charles R. Starr, Judge, presiding. The facts in this case are fully stated in the opinion.

Erastus S. Williams, Judge, presiding. This was an action of assumpsit, brought by the appellee against the appellant, in the Recorder’s Court of the city of Chicago, and subsequently transferred to the Circuit Court of Cook county, upon six promissory notes, amounting in the aggregate to $553.30, and which notes were made and executed by the appellant, who delivered the same to one Henry McKenzie, by whom they were indorsed, and assigned to the appellee.

<p>Appeal from the Superior Court of Chicago.</p> <p>The facts in this ease are sufficiently stated in the opinion.</p>

Writ of Error to the Recorder’s Court of the city of Chicago; the Hon. Evert Vae: Burén, Judge, presiding. This was an indictment for larceny, found against the defendants, George Stinson, Thomas Perkins and W. H. Farmer, in the Recorder’s Court of the city of Chicago. A trial was had at the January Term, 1867, and the defendants found guilty, and each sentenced to six years’ imprisonment in the penitentiary at hard labor.

<p>1. Highways—what sufficient description of road ordered tote laid out. The description of a road proposed to be laid out is sufficiently certain, where from the whole proceedings had thereon, taken together, there appears no difficulty in locating the same.</p> <p>2. Same—of assessment of damages for laying out road. Where a road was ordered to be laid out, through lands belonging to an estate, an assessment of the damage to the heirs of such estate, is proper and legal.</p> <p>. 3. Same — separate damages to widow—cannot be assessed. In such case, separate damages cannot be assessed to the widow on account of an unassigned dower interest. An adjustment of the equities between the fee and the contingent right of dower must be left to the widow and the heirs.</p> <p>4. Public officers—mil be presumed to have performed their duties, unless the contrary appears. In support of a bill for an injunction against public officers, this court will presume that they have performed their duties as required by law, where the record discloses no proof to the contrary.</p>

Sidney W. Harris, Judge, presiding. This was a hill filed in chancery, by the appellant, in the county of De Kalb, against the appellee, to set aside a conveyance of certain lands in De Kalb county, which had been made by appellant to appellee, under and by virtue of an .agreement made between them to exchange property.

Writ of Error to the Circuit Court of Grundy county. This was a suit in chancery instituted by Alexander M. Bruen and Louisa J. Bruen, in the Circuit Court of La Salle county, against Philo Lindley and Herman Bruen, to set aside and cancel a certain deed for lands, which Herman Bruen had caused to be put upon record, by Lindley, the recorder. Lindley had no interest in the subject matter of the suit.

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

<p>Appeal from the Circuit Court of Livingston county; the Hon. Charles R. Starr, Judge, presiding.</p> <p>The facts in this ease are fully stated in the opinion.</p>

Writ of Error to the Circuit Court of Tazewell county; the Hon. James Harriott, Judge, presiding. This was an action on the case brought by defendant in error, in the Circuit Court of Tazewell county, to recover damages for stock alleged to have been killed by the cars, on the railroad of the plaintiff in error, by reason of the failure of the company to fence its line of road.

<p>Appeal from the Circuit Court of Marshall county; the Hon. Samuel L. Richmond, Judge, presiding.</p> <p>The facts in this case are sufficiently stated in the opinion.</p>

<p>Appeal from the Superior Court of Chicago.</p> <p>The facts in the case are fully stated in the opinion.</p>

Charles E. Starr, Judge, presiding. This was a bill in chancery filed by Cleghorn in the Circuit Court of Iroquois county to restrain the town collector from collecting taxes on $10,000 wrongfully assessed against him. The bill alleges that the complainant commenced his residence in the town of Lodi, Iroquois county, in December, 1863 and remained there until December, following.

This was a suit brought on a check dated Hiles, Michigan. May 8,1861, drawn by E. C. Paine on E. I. Tinkham & Co., Chicago, for $450, payable to St. Joseph Iron company, and indorsed to A. W. Tipton, and by him to J. L. Hartson, at Hew Boston, 111., and by him to Wells Willetts. The check was protested for non-payment June 4, 1861. The evidence is stated in the opinion of the court. The trial in the court below resulted in a judgment for the defendant.

Writ of Error to the Superior Court of Chicago; the Hon. John M. Wilson, Chief Justice, presiding. The facts of the case sufficiently appear in the opinion of the court.

John M. Wilson, Judge, presiding. This was an action of assumpsit commenced by George H. Fergus, in the Superior Court of Chicago, on the 15th of September, 1865, agaiust John Parker and William Fagan. Plaintiff filed his declaration, containing the common counts only, with a bill of particulars. Defendant Parker filed the plea of the general issue. A default was taken against Fagan. A trial was had at the November Term, 1865, before the court and a jury.

<p>Writ oe Error to the Superior Court of Chicago.</p>

<p>Appeal from the Circuit Court of Ogle county; the Hon. W. W. Heaton, Judge, presiding.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

This was an action commenced before a justice of the peace by Yan ¡Nortwick, to recover back money paid to Goodrich for a fanning mill, and the case was taken by appeal to the Circuit Court of Kane county. The venue was changed to the Court of Common Pleas of the city of Aurora, where the case was tried by a jury, and a verdict found in favor of the plaintiff for twenty-five dollars. A motion for a new trial being overruled, a judgment was rendered upon the verdict.

Writ of Error to the Circuit Court of Kankakee county ; the Hon. Charles K. Starr, Judge, presiding. The facts of the case sufficiently appear in the opinion of the court.

This was an action of trespass, commenced before a justice of the peace, by Daniel Carr against Daniel Westgate, to recover for injuries occasioned to his crops by the cattle of the latter. The trial before the justice resulted in a judgment for the defendant. On appeal to the County Court, the plaintiff recovered a judgment for $35.83. The defendant appealed to this court. The facts are sufficiently stated in the opinion.

Appeals from the Circuit Court of Henry county; the Hon. Iba O. Wilkinson, Judge, presiding. ■ The above cases involved the same facts, and were considered together. At the June Term, 1866, of the County Court of Henry county, the appellees appeared and objected to the rendition of judgment against certain lands belonging to themselves, and situated in the four towns of Loraine, Yorktown, Phoenix and Atkinson, in said county.

John S. Thompson, Judge, presiding. In the year 1849, Batekin had a pre-emption right to the land in controversy, except twenty-four acres; not being able to enter it himself, he borrowed $200 from Hanna, and to secure him, entered the same in Hanna’s name, giving his note for the amount borrowed, with an agreement to pay fifteen per cent per annum. Batekin was in possession of the land at the time, and up to March, 1863.

Writ of Error to the Circuit Court of LaSalle county; the Hon. M. E. Hollister, Judge, presiding. This was a suit in chancery commenced by Archibald. Young, and Elbert H. Van Kleek, the defendants in error, in the Circuit Court of LaSalle county, for the purpose of foreclosing a trust deed, executed by Joshua Cushing and wife to Orville N. Adams, to secure a note for $1,600.

<p>1. Constitution—valid laws under. A law authorizing the levy of a ■•town tax to raise a fund to procure volunteers and substitutes for the United :States army, to exempt the town from a draft, is constitutional. The case of Taylor v. Thompson, 43 Ill. 9, approved.</p> <p>3. Towns—what is a town fund. Held, that a tax raised for such an ■object is for a town purpose,'and might be audited as such. It is for a corporate purpose when specially authorized by law. But, in the absence of such authority, such a tax is not warranted. The case of Drake v. Phillips, 40 Ill. 388, considered and approved.</p> <p>3. Bounty fund — law authorizing. The act of the 18th of January, 1865, authorizes the boards of supervisors in the several counties therein named, to levy at their regular sessions, a special tax not exceeding three per cent, as they deem necessary, to discharge any part or all indebtedness then incurred, or which they might afterward incur, on account of any appropriation which had been or might be made to pay bounties to volunteers, substitutes or drafted men, who had been or might be mustered into the service.</p> <p>4. The second section confers the power to prescribe the time when such special tax shall be collected. The third confers authority to levy and cause to be collected such special tax, on any town or towns, as may be necessary to pay bounties to relieve them of indebtedness for bounties paid by the town or individuals to volunteers who had or might enlist and be credited to the town.</p> <p>5. The fifth section declares, that before such tax shall be levied to pay indebtedness named in the third section, persons holding such indetedness are required to submit their claims to the town auditors for liquidation and allowance, the town clerk shall, when allowed, certify the same to the county clerk, stating the action of the board of auditors, which is required to be filed within four days from the time the auditors make their decision. Held, that the power conferred by this act was ample to authorize the board of supervisors of Kendall county to levy this tax, and when levied, it is for a corporate purpose. The Constitution authorizes a corporate tax to be levied, but has not specified what are corporate purposes, leaving that to be otherwise determined.</p> <p>6. The act authorizes the board of supervisors to levy the tax, but requires as preliminary thereto, that the town auditors must first pass upon the claims for money advanced to procure volunteers. Until such claim has been so acted upon the board have no power to make the levy.</p> <p>7. Tax—levied for town purposes. Where the board of town auditors have acted upon and allowed such claims, and they were properly certified to the county clerk, the board of supervisors were required to levy the tax on the property in the town, and it was valid without reference to the election to vote the tax, it not having been required by the statute.</p> <p>8. Injunction—dissolution of—damages. On the dissolution of an injunction, where a suggestion of damages shall be filed, the statute requires the court to assess the damages, — held, that it is not error to allow a counsel fee in such assessment.</p>

<p>Appeal from the Circuit Court of De Kalb county; the Hon. Theodoee D. Murphy, Judge, presiding.</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

<p>1. BAILROAD-~iaZn~bUy of, for fa~2ure to wM~t~ or ring be'l. Under our statute imposing a penalty of fifty dollars on railways for failure to sound a whistle or ring a bell for eighty rods before' arriving at a crossing, the action may be brought either by the prosecuting attorney in the name of the people, or qui tam by an informer.</p> <p>2. Degbee oe feoo3? BEQiJiBED xs such cases. In an action qui tam in such a case, it is error to instruct the jury, for the plaintiff, "that a preponderance of evidence, only, is required, and that it is not necessary a jury should be satisfied of the guilt of the defendant beyond a reasonable doubt.” While the same completeness of proof is not required in such cases, as in cases where life or liberty is in jeopardy, yet there must be a reasonable and well fimnded belief of the guilt of the defendant,&emdash; a very slight preponderance will not suffice.</p>

Writ of Ebbob to the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding. Phillip F. W. Peck brought an action of forcible detainer against Thomas Ball, before a justice of the peace of Cook county, on the 8th day of June, 1865, to recover possession of a house in the city of Chicago.

Writ of Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding. The facts of the case sufficiently appear in the opinion of the court.

<p>Appeal from the Circuit Court of Livingston county; the Hon. Charles R. Starr, Judge, presiding.</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

<p>Pees and salaries—duties of clerics—and fees for entmng suits for trial. The statute makes it the duty of the clerks of the Circuit Courts to prepare and keep a docket of all causes pending in their respective courts, in which shall be entered the names of the parties, the cause of action, and name of the plaintiff’s attorney; and to furnish the judge and the bar, at each term, with a copy of the same; and provides, that for this labor the clerk shall be entitled to a fee of ten cents for entering each suit on the docket for trial. The Circuit Court overruled a motion to retax a bill of costs, charging ten cents each for entering a cause on the docket of the judge, the bar, and the clerk— held, that only one charge of ten cents can be made for docketing each cause on the trial docket, and that no charge can be made for entering a cause on the copies for the judge and the bar.</p>

<p>1. Pleading—estoppel. In an action upon a repIevinbond.it was objected by the obligor, upon general demurrer, that the declaration did not aver that th® justice of the peace before whom the action of replevin was tried had of the cause: Held, that, having sought that jurisdiction, he was estopped by his own act and admission.</p> <p>2. Practice — default — assessment of damages. Where a defendant demurs to a declaration, and his demurrer is overruled, and he fails to obtain leave to plead, a default for want of a plea is the necessary consequence. The judgment on the demurrer in such case is, that plaintiff recover his debt, and damages occasioned by detention of the same, to assess which a jury should be called.</p> <p>3. Verdict — informality of. Where a verdict does substantial justice, and the party against whom rendered shows no merits, informality should not vitiate it.</p>

<p>Evidence—irrelevancy—and inadmissibility of. In an action for an injury sustained through the overturning of a carriage, by reason of a hole made and left in the street by city authorities, evidence that the injured party, during the following winter, went to Cuba, for the more perfect restoration of health, without showing that the change was necessary to a complete recovery—held inadmissible and improper, as tending to influence the jury in giving damages.</p>

Joseph E. Gaet, J udge, presiding. This was an action of assumpsit brought by Archibald Leckie, George H. Sellers and William A. Leckie, partners, under the name and style of Leckie, Sellers & Co., in the Superior Court of Chicago, against John S. Brown, to recover the amount of a check for $3,380.24, drawn by defendant, in favor of plaintiffs, on Solomon Sturgis’ Sons. The declaration contained two special counts on the check, and the common counts.

<p>Appeal from the Court of Common Pleas of the city of Aurora; the Hon. E. G. Montony, Judge, presiding.</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. E, S. Williams, Judge, presiding.</p> <p>The facts in this case are fully stated in the opinion.</p>

Josiah McRoberts, Judge, presiding. This was an action on the case brought by Hugh Martin against Martin O. Walker and Guy H. Cutting, in the Cook Circuit Court, for malicious prosecution. A change of venue was taken to Will county, where the case was tried before a jury, and resulted in a verdict and judgment in favor of appellee for twenty thousand dollars. The declaration contains three counts.

John A. Jameson, Judge, presiding. This was an action of assumpsit brought by the Chamber of Commerce against Sollitt, for damages for the non-performance of a contract for the carpenter work on a building. This contract was made June 30,1864. On the 13th of July, following, Sollitt notified the building committee of his entire inability to comply with his contract, ip. a letter which appears at length in the opinion.