Volume 44 — Illinois Reports

<p>1. Chancery—motion to dismiss before answer. Although irregular and unknown to correct chancery practice, a motion to dismiss a bill, interposed before answer, and acted upon by the court, must be held to have the same effect as a demurrer.</p> <p>2. Tax—lemy of special. To make the levy of a special tax valid, every requirement of the law authorizing it must be strictly complied with.</p> <p>3. Injunction—io restrain collection of tax. A court of chancery will take jurisdiction and restrain by injunction the collection of a tax, if not authorized by law, or imposed on property exempt from taxation, or where the assessment was vitiated by fraud, or the tax-payer likely to suffer irreparable injury, or if the persons levying the same are not officers de jure or de facto.</p>

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

E. S. Belaud, Judge, presiding. This was an information in the nature of a quo warranto, by James A. McKenzie, State’s attorney for the tenth judicial circuit, on the relation of David H. Frisbie, of Knox county, against Arthur A. Smith, judge of said tenth judicial circuit. The first count of the information charges that on the 19th day of February, 1867, Arthur A..

<p>Appeal irom the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>This was an action on the case commenced to the August Term, A. D. 1866, of the Superior Court of Chicago, by the appellee against the appellant to recover the value of a colt killed upon the road of the appellant at a place called Hinsdale, in Dupage county.</p> <p>The case was tried at the November Term, and a verdict and judgment obtained against the appellant for the sum of $400.</p> <p>The action was brought under the act of February 14, 1855, requiring railroad companies to fence their road in certain localities.</p> <p>The declaration contained two counts, and sets forth, in substance, that the killing was caused by the careless and negligent conduct of defendant in not fencing the road as required by law, and the careless, negligent and improper manner it ran its locomotive and train.</p> <p>To which the defendant filed its plea “not guilty.”</p>

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

<p>1. Judgments—conclusmeness of. A judgment of a sister State which, by the laws thereof, is conclusive on the parties, is equally so, when sued on in this State,</p> <p>2. Variance—idem sonans. Courts at the present day are not confined to the rigid rules of idem sonans, but inquire whether the variance is material. Stevens v. StSMns, 3 Scam. 25.</p> <p>3. Parties — swvimng partners. The administrator of a deceased partner should not join with the surviving partner in a suit to recover a debt due to the firm. At the common law, the surviving partner, alone, could sue.</p> <p>4. Practice—time to object to misjoinder of parties. But, should the administrator improperly join in such a suit, the misjoinder should be objected to in the court in which the suit was brought,—it is too late to take the objection in a suit brought upon the judgment rendered in the action in which the misjoinder occurred.</p>

<p>Wbit oe Ebbob to the Circuit Court of Will county; the Hon. Jesse O. Hobton, Judge, presiding.</p>

<p>Attachment—what facts mamfest a residence. Whether a person who moves from New York to Illinois gains a residence in this State, within the meaning of our attachment law, is a question of intention deducible from facts and circumstances.</p> <p>In 1859 a party, formerly a resident of Medina, New York, came to DeKalh county, Illinois, and purchased a farm which he cultivated and lived on from the spring of 1861 to August 1864, but never moved his wife thereto from Medina.</p> <p>While thus living on his farm he voted in this State and spoke of Illinois as his residence, and declared his intention to make the farm his permanent home, and said his wife would join him on the decease of her mother, who was then too old to be removed. In May, 1864, his property was attached on the ground that he was not a resident of Illinois.</p> <p>Held, that these facts and circumstances manifest a residence, and, therefore, that the attachment would not lie.</p>

Benjamin B. Sheldon, Judge, presiding. Augusta Young brought an action on the case for slander, in the Circuit Court, against Ludwig Baker, and Caroline Baker, his wife.

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

<p>Ejectment—convey anee by plaintiff pending suit. Under our statute, a conveyance of plaintiff’s title to a third person, pending suit, does not defeat his right of recovery. In such case the recovery in ejectment inures to the benefit of the grantee of the plaintiff.</p>

<p>1. Mortgage—on two funds. Where a person takes a mortgage on property a portion of which is incumbered at the time and a portion is not, he thereby acquires the right to satisfy his debt out of the portion not previously incumbered. And this right passes to an assignee of the debt and security. And on a foreclosure he could be compelled to resort for satisfaction, first, to lands upon which the debtor did not reside.</p> <p>2. Same—homestead—subsequent ineumbrance. A person taking a deed of trust on the lot of ground occupied as a homestead by the debtor and also on a tract of land not so situated may resort, for satisfaction of his debt, first, to the land; nor is his right impaired by the debtor subsequently giving a mortgage on the land. The law will not compel the first incumbrancer to advance a thousand dollars to reach the surplus of the homestead before resorting to the land for satisfaction.</p> <p>3. Incumbrances—different funds. The law does not require a person having a lien on two funds, one of which is subject to a lien or incumbrance prior to his, and the other a lien subsequent to his, to remove the incumbrance prior to his, to enable the person holding the lien subsequent to his on the other fund, to obtain satisfaction. If a creditor having a lien on two funds, one of which was a homestead which is indivisible, and the other not subject to a prior lien, the court could not compel him to advance one thousand dollars, and sell the surplus of the homestead; to do so would be to make a new contract.</p> <p>4. Same—equity of redemption. A person taking a second mortgage on real estate, only acquires a lien on the equity of redemption, and when such mortgage is foreclosed and the property sold, the purchaser only obtains that right. And it will be presumed that such a purchaser regulates his bid with reference to the prior incumbrance, and only gave what it was worth subject to the prior lien.</p>

<p>Appeal from the County Court of La Salle county; the Hon. P. Kimball Lelakd, Judge, presiding.</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

P. Kim-ball Leland, Judge, presiding. This was an action of ejectment brought by Henry Van Riper against Solomon Cole, in the La Salle County Court to recover possession of a tract of land situate in the town of Whitfield, in La Salle county. The plaintiff) to prove title, called George JVIunroe, who was sworn as a witness.

<p>1. Quitclaim deed—failure of consideration. A quitclaim deed for land, without reference to the character of title, is, in the absence of fraud, a sufficient consideration to support a contract. Money paid for such a conveyance cannot be recovered back, or a plea of failure of consideration maintained to a note given for such a conveyance, unless fraud has been practiced on the grantee.</p> <p>2. Trust—resulting or implied. A resulting or implied trust is usually created by the purchase of land with the money of one person in the name of another without the consent of the owner of the means. Such trust is never created by agreement, but always by implication of law, from acts independent of the agreement of the parties.</p> <p>3. Practice—dismissing bill. Where a bill in chancery is not framed on a basis such as will entitle the complainant to the relief he seeks, but it is obvious to the court that he has equities which under a proper bill he could enforce, the true practice is to dismiss his bill without prejudice.</p>

<p>1. New trial—verdict against t7ie evidence. Although the correctness of a verdict may be doubtful, yet if it is not clearly against the evidence, or unsupported by it, the finding will not be disturbed.</p> <p>2. So in an action against a railroad to recover the value of a cow alleged to have been killed by a train, the proof as to the manner in which the cow was killed was, that, when found, she was lying on her back in the railway ditch, between two and three feet from the track, bloated, and the blood oozing from her nose. The jury found she came to her death from a passing train, and the court, though doubtful of the correctness of their finding, refused to disturb it.</p> <p>3. Instructions—omissions therein obviated by the proof. Although the instructions, given in such a case for the plaintiff, omit to state that it must be proved that the road had been operated for six months prior to the accident, yet no harm could result to the defendant for such omission, when it clearly appeared from the evidence that the road had been in use for a much longer period.</p>

Charles It. Starr, Judge, presiding. This was a suit commenced before a justice of the peace in Livingston county, by Samuel Wickery against the Toledo, Peoria and Warsaw Railway Company, to recover the value of a cow, the property of the plaintiff, alleged to have been killed on the defendants’ road, at a place where the law required the same to be fenced, which had not been done although the road had been in operation for several years.

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

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

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

M. E. Hollister, Judge, presiding. In September, 1864, after the passage of the act of February 16, 1863, entitled “An act to enable counties owing debts to liguidate the same ” — an extract from which will be found in the opinion of the court — the board of supervisors of Bureau county, passed the following resolutions : “ Besolmed, That the sum of fifty cents on the $100 valuation of the taxable property in the county of Bureau, is hereby levied to defray the county…

<p>Appeal from the County Court of La Salle county; the Hon. P. K. Leland, Judge, presiding.</p>

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

<p>1. Mortgage—what constitutes. The mere execution of a deed absolute on its face, and a bond for the reconveyance of the premises, upon certain conditions, does not of itself stamp the transaction as a mortgage; and when in such case, the proof shows that the parties intended an absolute sale, with right to repurchase simply, such intention must govern.</p> <p>2. Usury—when paid—cannot he recovered back. A party cannot recover hack, either at law, or by bill in equity, usurious interest which he has paid.</p> <p>3. Chancery practice—pleadings must conform to relief asked. When a complainant in chancery seeks a specific performance, his bill must he framed with that view.</p> <p>4. Purchaser—hona fide—without notice of equity. Where a party purchases, without notice of an outstanding equity in another, he is not affected by such equity.</p>

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

Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. This was a suit commenced before a justice of the peace in Cook county, by Joseph Liness against Anthony C. Hesing. The cause was removed into the Circuit Court by appeal, where a trial resulted in a judgment in favor of Hesing. Liness thereupon sued out this writ of error.

Joseph E. G-aby, Judge, presiding. This was an action of assumpsit brought by Ebenetus B. Kellogg, in the Superior Court of Chicago, on the 25th of February, 1864, against Michael Diversy, to recover the price of a pipe of Cologne gin. The declaration contained the common counts. The defendant pleaded the general issue, with notice of recoupment and set-off. On the 4th of September, 1866, a trial was had before the court and a jury.

<p>Appeal from the Circuit Court of Kendall county; the Hon. Madison E. Hollister, Judge, presiding.</p> <p>This was a proceeding commenced in the name of the City of Aurora against B. Wilder Gates, before one of the police magistrates of that city. The cause was taken by appeal to the Circuit Court of Kane county, and, before final trial, was removed into the Circuit Court of Kendall county, where a trial resulted in a judgment for the defendant, from which" he appealed to this court.</p>

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

John M. Wilson, Judge, presiding. This was an action of assumpsit brought by Murray Helson and Enoch 33. Stevens, partners under the firm name of Murray Kelson & Co., against Elias 33. Stiles and Joseph McPherson. The declaration contained three special counts on a contract for five thousand bushels of oats purchased on the 25th of February, 1865, at sixty-one and a half cents, to be delivered by plaintiffs to defendants during the month of March, 1865.

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

Writ of Error to the Circuit Court of Livingston county. On the 16th day of February, 1865, Julius Stuhl executed his promissory note as follows: “ $200.00. ' Pontiac, February 16, 1865. “ Thirty days after date, for value received, I promise to pay to the order of Jacob Countryman, $200, with interest at ten per cent per annum until due, and if not paid when due, then at the rate of ten per cent per annum, as liquidated damages, until paid.

<p>Writ of Error to the Circuit Court of De Kalb countythe Hon. Isaac G. Wilson. Judge, presiding.</p>

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

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

Benjamin B. Sheldon, Judge, presiding. This was a suit in chancery, instituted, by the appellee in the court below, against the appellant, to obtain the conveyance from appellant and wife of the legal title to the east half of the north-west quarter of section 26, T. 26, B. 10, E. of the 4th P. M., in Winnebago county, Illinois, upon the ground that appellant held the legal title to the same, as trustee for the use and benefit of appellee.

G-. S. Eldbidge, Judge, presiding. This was an action brought by the appellee against the appellant, in the court below, to recover for the alleged breach of a contract between the parties, by which appellee claims to have purchased a large number of hogs from appellant, and which he refused to deliver.

This was an action of assumpsit, brought by the appellees, Peyton E. Chandler, Samuel L. Keith, and Thomas Snell, against the appellant, impleaded with Benjamin F. Murphy, leander E. Murphy, and Eobert P. Murphy, at the May Term, 1865, of the Superior Court of Chicago. The further facts in this case are stated in the opinion.

<p>New total—verdict against the evidence. When the proof, though slight, supports the verdict, and is uncontradicted, this court will not disturb it.</p>

<p>1. Sureties—obligation of, in a supersedeas bond. The obligation of a surety upon a supersedeas bond, is limited to the prosecution of the writ of error with effect, and his undertaking is, that if the writ is not so prosecuted he will pay all resulting damages.</p> <p>3. Same. In an action of debt upon a supersedeas bond, the declaration assigned as breaches of the condition, that the writ of error had not been prosecuted with effect, but that the decree had been affirmed; and that the property mentioned in it had deteriorated in value since its rendition. The defendant filed a demurrer, which the court overruled, and-gave judgment for the amount of the penalty in the bond, and nominal damages only, refusing to hear any evidence in support of the breaches assigned of deterioration of the property. Held, that it was error for the court, after having adjudged the declaration good on demurrer, to reject evidence offered to show the deterioration of the property; that the overruling of the demurrer was a recognition of the claim.</p> <p>3. Same—extent of deterioration — the measure of damages. The extent of the- deterioration of the property would constitute the damages, which the plaintiff would be entitled to recover.</p> <p>4. Same—rents from realty — when will not be allowed. And in such case, a claim by the plaintiff for the rents received by the defendant from the real estate, after the rendition of the decree, will not be allowed, plaintiff having no right-, by the decree nor under the law, to its possession or the rents thereof.</p>

Theodore D. Murphy, Judge, presiding. This was a bill in chancery filed in the court below by the appellant against the appellee and Charles D. Boynton, John Lloyd, Catharine R. Lloyd, and Samuel Boynton, to charge certain real estate with the payment of a note for $4,200, given by Lloyd to appellant as the purchase price upon a sale of the same by him to Lloyd. The facts in the case are fully stated in the opinion.

<p>1. Errors — what may he pleaded as a release of. Where a party recovering a judgment, or decree, voluntarily accepts the benefits thereof, knowing the facts, he is thereby estopped to afterward reverse such judgment or decree. The acceptance operates, and may be pleaded, as a release of errors.</p> <p>2. Attorney and client—relations of—powers of attorney. An attorney usually has the power to receive his client’s money in a case in which he is employed, and this, by virtue of his retainer. The fact of employment implies such authority, unless limited, and even then a client would be bound, unless the party paying the money to the attorney, had notice of the limitation.</p> <p>3. Same—power of attorney ceases with the termination of the relation. The power of an attorney ceases upon the termination of the relation, after which any, and all acts of an attorney, whether in the matter of receiving the benefits of a judgment, or decree, releasing errors of record, or otherwise, are unwarranted, being without authority, and therefore do not bind the client.</p>

<p>Trust-deed—construction of a particular provision in. Under a trust-deed containing a provision to the effect that it should be lawful for the grantee, in case of default, to enter in and upon the premises conveyed, and to sell and dipose of the same at auction, after having given notice, etc., it is not necessary, in order that a legal sale of the premises may be had by the trustee, that an entry or demand for possession should first be made by him. Entry in such case is not a condition precedent to the making of the sale.</p>

<p>1. Damages — vindictive in trespass cannot be given—malice being absent. In an action of trespass, for personal injuries, when the act complained of is without malice, vindictive damages cannot be given.</p> <p>2. Same—compensatory damages, only. In such case, full compensation for the pain and suffering, loss of time, expenses incurred for medical treatment, and compensation for the injury, if permanent, is all that should he given.</p> <p>3. New trial — excessive damages. In an action of trespass, when the right of recovery is limited to compensatory damages merely, and a verdict for vindictive damages is given, a new trial will he granted.</p>

Writ of Error to the Circuit Court of Peoria county; the Hon. Amos L. Merriman, Judge, presiding.

<p>Writ oe Error to the Circuit Court of La Salle county; the Hon. Madison E. Hollister, Judge, presiding.</p>

This was an application made to this court for a peremptory writ of mandamus, to he directed to the clerk of the Circuit Court of Franklin county to compel him to issue a summons, •as set forth in the petition of the relators, and which he had refused to do. The facts in this case are fully stated in the •opinion.

<p>Appeal from the County Court of Cook county; the Hon. James B. Bbadwell, Judge, presiding.</p>

<p>1. Assignment for the benefit of creditors&emdash;power to malee, and give preferences. A debtor in failing circumstances may make an assignment for the benefit of his creditors, and in so doing, he may make a preference in favor of a portion of Ms creditors.</p> <p>2. Same&emdash;must be in good faith. But to be valid, it must be done in good faith; for, if intended to delay creditors, or otherwise for fraudulent purposes, or if the preference be a secret trust, it is void.</p> <p>3. Same&emdash;will be rigidly scrutinized. Transactions of this character are required to he fairly and honestly made, and, to that end, they will be rigidly scrutinized.</p> <p>4. Chancery practice&emdash;proof requisite, to overcome a sworn answer. Where an answer to a bill in chancery is required to be made under oath, and is responsivo to the allegations of the hill, it must he received as true, unless disproved by the evidence of two witnesses, or that of one and corroborating evidence amounting to the evidence of another, such answer being evidence of a higher grade than that of a single witness.</p> <p>5. Assignment for the benefit of creditors&emdash;of particular words in the deed. It is no objection to a deed of assignment, that it contains this language: “ deducting and retaining all such costs, charges, damages, expenses and disbursements, as shall he sustained, incurred, or reasonably due, for or in relation to the execution of the trusts.” The use of the word “ damages ” therein does not vest in the trustee power to squander the assets, by the charge of fictitious damages.</p> <p>6. Same—reasonable costs, and charges attending the execution of the trust allowed—whether provided for in the deed or not. The law allows all reasonable charges, costs, expenses and disbursements, to be paid out of the fund, but they are always subject to be reviewed by a court of equity; and such disbursements will be allowed, whether provided for in the deed or not.</p> <p>7. Same—damages awarded against a trustee—when will be allowed. Where a trustee, in an effort to execute his trust justly, renders himself liable to damages, which are awarded against him, he will be allowed to retain the amount thereof out of the fund.</p> <p>8. Same—reservation of the portion of the fund. Where the schedule of unpreferred creditors contained this item, “Jacob Baker, house account, §11.98,” and it appeared that one of the persons executing the deed was of the same name, this court will not presume that they are one and the same person, in the absence of all proof of the character of the debt, or of who such person is.</p> <p>9. Same—employment of the debtor—when will not be regarded as a badge of fraud. Where the trustee employed the debtor to assist him in the settlement of the affairs of the firm, the management of the trust fund remaining strictly under the control of the trustee, such employment will not be considered as a badge of fraud, unconnected with other facts tending to prove fraud.</p> <p>10. Same—of a debt due to a former partner. The fact that a debtor, making an assignment for the benefit of his creditors, includes in the list of preferred creditors a debt fairly and honestly incurred by him, in buying out a former partner, and for money loaned to him by-such retiring partner after his withdrawal, cannot he regarded as a fraud upon the creditors.</p> <p>11. Same—insolvency—what facts not sufficient proof of— to charge a retiring partner with a fraudulent design in selling out his interest. It is no evidence that a firm is insolvent, because, if forced to wind up its business at a particular time, it would he unable to pay all of its liabilities. And it is no fraud upon the creditors, for one of its members to sell out to the other partners at such a time his interest in the partnership, and to be so there must he proof of such fraudulent design.</p> <p>12. Same—of purchases made shortly before an assignment, arriving afterward, go to the general fund. Purchases made by a firm some time before an assignment, arriving subsequently, the title thereto vests in the assignees, the seller having failed to exercise the right of stoppage in transitu.</p> <p>13. Same—notice of failure need not be given. There is no rule of law that requires a debtor to give notice of his failure.</p> <p>14. Same—purchases before assignment—what will not be regarded as having been fraudulently made. Purchases made by a party, on credit, at a time when he knew he could not pay his debts, will not, for that reason alone, he regarded as fraudulent.</p> <p>15. Same —purchases made in contemplation of an assignment—fraudulent. But the rule is otherwise as to purchases made in contemplation of an assignment.</p> <p>16. Same—fraud must he proved. The fraudulent design of a debtor in making an assignment must he proved, and cannot he established by mere suspicion; hut can only he sustained upon satisfactory proof of the fact.</p>

Theodore D. Murphy, Judge, presiding. This was an action of trespass, originally commenced before a justice of the peace, by the appellee, against the appellant, and one Daniel Corey, for levying upon certain property, under an attachment, in favor of one Brundage, against Charles Bowman, as the property of said Bowman, which said property appellee claimed as having been purchased by him from Bowman, prior to the commencement of the attachment suit.

<p>1. Chancery—rvya/i'ian rights—when mil not interfere until after the right and its infringement—established at law. Where three persons, in possession respectively of certain lands, viz., A of those lying upon the east bank of a river, B of those lying upon the west bank, and C of an island in the center, made their respective entries for the same at the government land office on the same day, and which lands had been separately surveyed and purchased by them as distinct tracts, — held, in a suit in chancery brought by A against the others to settle their respective rigb ts to the use of the water bounding these grants, that a court of equity could not acquire jurisdiction in such case, to settle the legal rights of the respective parties to the water-course, until after the right and its infringement had been established in a court of law.</p> <p>2. Former decisions. The case of Bliss et al. v. Kennedy et al., 48 Ill. 67, cited iu support of this doctrine.</p> <p>3. Water-course—ri/parian proprietors—rights of, sufficiently certain to be determinable at law. That the rights of the respective parties in the water are sufficiently certain to be easily determined by a court of law for any infringement thereof by either.</p> <p>4. Same—boundaries. That, the mainland and the island having been separately surveyed and purchased by these parties respectively as distinct tracts, the grantees of the mainland cannot claim, that the island purchased at the same time by C was not reserved but included in the grant to them.</p> <p>5. Same. That, the grant to each being separate and distinct, neither can claim beyond the calls of his entry and patent. That C acquired the same riparian rights as A and B, two fila aqua being established, one on each side of the island.</p> <p>6. Same. In a grant of land lying on a stream not navigable, if there be a clear reservation of the islands, either expressly or by implication, they do not pass to the grantee, and the filum aguce which bounds the grant is the center thread between the mainland and the island.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. G. S. Eldeidge, Judge, presiding.</p>

<p>1. Appeals — lie from decisions made hythehoard of supervisors of county. The act of 1861, allowing an appeal to be taken by a railroad company from the determinations of the board of supervisors of a county to the Circuit Court, is constitutional and valid.</p> <p>2. Statutes—will not he held unconstitutional except in the clearest cases. This court has repeatedly declared, that it will not pronounce a statute unconstitutional, except in a case where the violation is plain and palpable.</p> <p>3. Taxation—must he uniform. The rule of uniformity of taxation prescribed in the Constitution requires that one person shall not be compelled to-pay a greater proportion of the taxes, according to the value of his property, than another.</p> <p>4. So, where the property belonging to individuals in a county has been assessed at less than its actual value, the constitutional rule of uniformity forbids that the property of a railroad company in such county should be assessed upon any greater per cent of its value than that of individuals.</p>

<p>1. Taxation—must be uniform. One portion of the tax payers of a county, owning taxable property, shall not be required to pay more taxes in proportion to its value, no matter how that may be ascertained, than another portion in the same county.</p> <p>2. So if the assessors, regardless of the strict injunctions of the law, shall place a value upon property far below its real cash value, and such a practice goes on unchallenged, and is recognized by the authorities having special charge of the revenue of the State, that misconduct must also contain within itself the great and cardinal principle of uniformity.</p> <p>3. Same—corporations stand on the same footing with individuals. If the law is not strictly observed in the case of individuals, and their property is not assessed at its actual value, the property of a corporation, situate in the same county, should not be assessed at a greater proportional value than that of individuals, even though the enhanced assessment is not on the actual cash value of the property of such corporation.</p> <p>4. Same—the rule does not apply as between counties. But one county does not furnish a rule for another, in regard to the proportion of the value of property which shall be taken as the basis for assessment.</p> <p>5. So that, on the trial of an appeal in the Circuit Court of one county, from the decision of the board of supervisors increasing the valuation upon property beyond that fixed in the schedule returned by the owner, it is not competent to give in evidence a-schedule returned by the same owner, of property of the same character, situate in another county, and which placed a higher value upon it.</p> <p>6. Same—of the rule by which to ascertain the value of property. The cost of an article is no evidence of its value on any certain day; and upon such a trial, the proof should be confined to its value at the time of the assessment, and the court should not permit evidence to be given of the first cost of the property.</p> <p>7. Same—admissibility of evidence. Where the trial is in relation to the. proper valuation to be put upon the property of a railroad company by the supervisors for purposes of taxation, a report, not under oath, made by the president of the company to the stock and bondholders, having reference, among other things, to the value of the property of the company, is not admissible in evidence.</p> <p>8. The voluminous character of such a report, in this case, was such, that the bearing it had upon the issue before the court would have to be ascertained, if at all, by a careful analysis and dissection, to which a jury would scarcely be able to subject it. Besides, if it contained any statements bearing on the issue, they could be proved by witnesses under oath.</p> <p>9. And upon the trial of such an issue it is improper to admit evidence of an advance in the rate of freights upon the railroad. That has nothing to do with the value of the property to be taxed.</p> <p>10. Evidence—admissions. The voluntary admissions of a party, no matter when or how made, if made with knowledge of the circumstances, are proper to be given in evidence.</p> <p>11. So upon the trial of the question as to the proper valuation to be put upon the property of a railroad company for purposes of taxation, it is competent to give in evidence, in behalf of the party adverse to the company, the deposition of the general superintendent of the road, which had been taken in another case and used by the company, adopting and acting on the statements therein as facts.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. W. W. Heaton, Judge, presiding.</p>

<p>1. Trial—instructions—must he hosed on the evidence. M. sold to N. eighteen hogs, and, while driving them to the town of Arlington, three of them died from heat, and, upon N.’s refusal to pay for the dead hogs, M. brought suit to recover; and, the question being, whether by the contract of sale the hogs were to be driven at the risk of M. or of N., ■— held, that the court properly refused an instruction based upon the theory that plaintiff contracted to deliver them at a place other than at Arlington, and directing the jury, that, if such was the fact, and plaintiff could by reasonable care have made the delivery at such other place, and failed to do so, defendant was not liable ; there being evidence tending to show, that, whatever may have been the original contract as to the place of delivery, it was subsequently agreed that the delivery should be at Arlington.</p> <p>2. Construction op contracts. In giving a construction to a contract, the question is, What was the bargain, by a fair and reasonable construction of the words and acts of the parties, and not what was the secret intent or understanding of either of them.</p> <p>3. Same—instructions—containing slight inaccuracies—not erroneous. An instruction, containing verbal inaccuracies, such as the use of the word “ plaintiff,” in one instance, when the word " defendant” was intended, and the omission of the word “if” in another place, are not errors calculated to mislead a jury.</p>

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

<p>1. Agency—an attorney in fact—must act strictly within the scope of his authority. The rule is an established one, that an attorney in fact can only act within the strict letter of his authority, for the purposes and in the manner prescribed, a departure from which will not be sanctioned.</p> <p>2. Judgment note — what deemed unauthorized action upon under power delegated. Where, under a warrant of attorney, to enter the appearance of the maker of a note bearing date April 24, 1846, and confess a judgment thereon, the appearance was entered and a judgment taken upon a note bearing date April 24, 1856, — held, that the action was unauthorized, and the judgment entered therein a nullity, and binding upon no person, either in a direct or collateral proceeding.</p> <p>3. Judgments—of a sale under a void judgment — no title divested. And in such case lands sold under an execution issued upon the judgment divests no title; the judgment being unauthorized, the sale is void.</p>

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

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

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

<p>1. Taxes—concerning sufficiency of specification in aparticula/r ordinance— of the object of the tax imposed. Under section 4, chapter 9, of the revised charter of 1863, of the city of Chicago, which requires the object of the tax to be specified, an ordinance was passed imposing a tax of one mill on the dollar for permanent improvements. Held, that this was a sufficient specification of the purpose of the tax.</p> <p>2. Same—mere informality in procedure—will not vitiate tax levied. An ordinance levying taxes, and passed before the tax lists were completed by the clerk and signed by the assessors, does not vitiate the tax thereby imposed, every thing having been done that was necessary to authorize the levy. It is such an informality in the procedure as the charter expressly provides shall not vitiate the tax.</p> <p>3. Notice by tax collectob—in what proceeding its sufficiency may he questioned. The charter of the city of Chicago requires that the collector, when he receives a warrant for the collection of taxes, shall give notice, that, after the expiration of sixty days, he will levy on the personal property of all persons who have failed to pay. On an application for judgment against the land assessed, whether the collector did or did not give notice that he would levy on personal property in default of payment, is wholly immaterial; so, in such proceeding, the sufficiency of the collector’s notice in that regard cannot be questioned.</p> <p>4. Fobmeb decisioh. The case of Scammon v. The City of Chicago, ante, p. 269, is decisive of the other questions presented in this case.</p>

Writ of Error to the Circuit Court of Ogle county; the Hon. William W. Heaton, Judge, presiding. This was a proceeding upon an indictment found against the plaintiff in error, for an assault upon Nancy McManus, with intent to commit a rape.

<p>1. Pleading at law —filing new pleas—after demurrer sustained,—waiver of first pleas. The practice is well settled, that where a defendant, after his pleas have been adjudged bad on demurrer for substance, takes leave to amend, and files as an amended plea a new and different plea, he thereby waives his first pleas and cannot assign for error the decision of the court sustaining the demurrer.</p> <p>2. Practice—finding upon the issue of nul tiel record—when presumed correct. The finding of a court upon the issue of md tiel record will be presumed correct in the absence of a bill of exceptions.</p>

Writ of Error to the Superior Court of Chicago. This was an action in assumpsit, brought in the court below, by the defendants in error against the plaintiff in error, to recover for a quantity of cheese, alleged to have been sold to him under a contract made with them in Cook county. The defendant resided in La Salle county, and was sued in Cook county, and process sent to, and served upon him in La Salle county.

<p>1. Measure of damages. In an action against a railroad company for a failure to furnish passenger cars, as agreed upon, for an excursion, at a stipulated price, the measure of recovery would be the amount the plaintiff would have received as passage money, if the train had gone as proposed, less the amount agreed to be paid for the use of the cars.</p> <p>2. Contracts—need not be performed in installments. Where the contract on the part of the company, in such case, was to furnish six cars, upon certain notice to be given, and there was a request for only four cars, a failure to furnish the smaller number was no breach of the contract. The company had a right to perform the contract as an entirety, or could not be required to perform it at all.</p>

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

<p>1. Contract payable in gold—construction of a contract. A contract for the payment of a certain sum of money “ in gold,” may be discharged by the payment of the same sum in legal tender notes. This rule applies as well in a suit in equity for a specific performance, as in an action at law upon the contract.</p> <p>3. Chancery—specific performance—of the decree prodding against a contingent right of dower. In a proceeding to compel the specific performance of a contract for the sale and conveyance of land, the court decreed a conveyance,. upon payment by the purchaser of §880, the amount due on the contract, and that in case the wife of the defendant should refuse to join in the deed, the purchaser might retain §350 out of the purchase money. Held, that this provision in the decree, authorizing the purchaser to retain §350 out of the purchase money, as an indemnity against the contingent right of dower, was erroneous, there being no grounds upon which to base such judicial action.</p> <p>3. Contracts—for the conveyance of lands—what must contain — to gu-arrd against this contingency. A contract for the sale and conveyance of lands in order to protect the purchaser against the consequences resulting from a refusal of the wife of the vendor to join in the deed, should specify what proportion of the purchase money he may retain, in the event the wife should refuse to release dower.</p>

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

Benjamin E. Sheldon, Judge, presiding. This was an action brought by appellee before a justice of the peace against appellant to recover the balance of an account for work and labor. On a trial before the justice of the peace, appellant recovered a judgment for twelve dollars and seventeen cents. The case was then removed to the Circuit' Court of Jo Daviess county. At the March Term, 1866, of that court a trial was had by a jury.

Writ of Error to the Circuit Court of Tazewell county; the Hon. James Harriott, Judge, presiding. This was a bill in chancery, filed by the plaintiff in error, Edmund S. Holbrook, against the defendants in error, Benjamin S. Prettyman, and others, in the Circuit Court of Tazewell county. The sole question presented by the record is as to the regularity of the proceedings had in the cause in the court below, the facts concerning which are fully stated in the opinion.

<p>Appeal from the Superior Court of Chicago; the Hon. John M. Wilson, Chief Justice, presiding.</p> <p>This was an action on the case commenced by John B. Parsons against the American Express company, on the 5th of March, 1861, in the Superior Court of Chicago.</p> <p>The declaration contained four counts, but subsequently a nolle prosequi was entered to the first and second. The third count averred, that, on the 25th of December, 1860, plaintiff caused to be delivered to defendants a certain promissory note made by one Daniel McNair, dated the 12th of February, 1859, payable to James H. Baldwin, for the sum of $545, twelve months from date; which was guaranteed by Hammett & Bro., and indorsed by Baldwin in blank and delivered to plaintiff before delivering the same to defendants; that defendants negligently, carelessly and improperly lost the note, whereby plaintiff lost the sum of money therein named.</p> <p>The fourth count is in trover and in the usual form, and is for the note described in the third count. Defendants pleaded the general issue. On the 12th day of December, 1865, the death of plaintiff was suggested and the suit was revived in the name of his administratrix. A trial was subsequently had before the court and a jury.</p> <p>William A. Baldwin testified that he took the note to the company for Parson's, and took their receipt, which is this :</p> <p>“American Express Co., Chicago, Jan. 23, 1860.</p> <p>“ ¡Received from J. B. Parsons, the following note for collection: ¡Daniel McNair, Galveston, Téxas, $545. Proceeds of collection will be returned in funds current where collections are made, and no paper protested unless we have special instructions to do so.</p> <p>“ For the proprietors, COOPEE.”</p> <p>Which was read in evidence. Baldwin stated that he had called at the office of the company, after leaving the note, several times, and they informed him they had heard nothing from it after it was sent, and finally they informed him that it had been lost. That Parsons demanded the note but the company did not return it to him. The agent of the company informed Baldwin that they were not running to Galveston, but they had such arrangements with the Adams Express Company, that they could collect the note.</p> <p>James H. Baldwin stated that the note was given to him, and he describes it as it is set out in the declaration; and he states that the maker was considered as responsible.</p> <p>Thomas Wright testified that defendant delivered the note to the Adams Express Company; defendants had arrangements with that company to make such collections.</p> <p>The court gave for plaintiff this instruction :</p> <p>“ The court instructs the jury, that, if they believe, from the evidence, that the plaintiff gave to the defendants, and the defendants received from the plaintiff, the promissory note in question, for collection, for a compensation or reward therefor to be paid by plaintiff to defendants, and that the defendants, or other persons to whom they intrusted it for collection, lost it by carelessness, then the plaintiff is entitled to recover the value of the note; and that the value, in the absence of evidence to the contrary, is the amount of the note; and that, if the plaintiff is entitled to recover the value of the note, she is also entitled to interest on that value, from the time the note became due to the date of the verdict; and that, if the jury believe, from the evidence, that the defendants, or those to whom they intrusted it, lost it, and it is not shown under what circumstances it was lost, it is presumed that it was lost by carelessness.”</p> <p>To which the defendant excepted.</p> <p>Defendant asked, but the court refused to give, this instruction :</p> <p>“If the jury find for the plaintiff under the first count, the proper measure of damages is not necessarily the amount of the note in question; and that, if the maker of the note has been all the time, and still is, responsible, good and solvent, the damages should be only such actual damage as the plaintiff’s intestate sustained under the circumstances of the case, which may be nominal only.”</p> <p>To the refusal of which defendant excepted. They also asked other instructions embodying the reverse of the rules announced by plaintiff’s instruction, but were refused by the court, and exceptions were taken.</p> <p>The jury found a verdict for plaintiff for $763. Defendant entered a motion for a new trial which the court overruled, and rendered judgment on the verdict. The case is brought to this court by appeal. A reversal is relied upon because the court gave plaintiff’s and refused defendants’ instructions, and because the motion for a new trial was refused.</p>

<p>Judgment—evidence. A judgment not supported by the evidence in the case is erroneous. Thus, where, in an action on the case against the American "Express company,” “Merchants’ Despatch,” and certain individuals by name, the court gave judgment against the American Express company and the Merchant’s Despatch, for the value of cases of plate glass which were shipped from New York to Chicago, and when there opened the glass found broken ; and the evidence offered in the case, and under which the glass was shipped, was a bill of lading purporting to be issued by the Merchants’ Despatch, without using the name or referring to the American Express company therein, and nothing in the record tending to show that the express company ever assumed any liability in regard to the carriage of the goods,—held, that, there being no proof tending to show the American Express company ever undertook the carriage of the glass, the judgment was unsupported by the evidence and was erroneous.</p>

Erastus S. Williams, Judge, presiding. This was an action of assumpsit brought by William Skinner, in the Cook Circuit Court, against Abraham F. Croskey. The declaration contained five counts, — the first on a guaranty of three notes made by Phillips to Croskey; the second on liability as indorser; the third the same liability, and the fourth and fifth on the assignment and the insolvency of the maker.

<p>1. Agency—ratification. Where an attorney compromised a debt of his principal, who, after a full knowledge of all the facts attending it, retained the money paid on such compromise, he will be held bound by it, and will not be permitted to ratify it so far as it is for his interest and repudiate the residue.</p> <p>2. Chancery pleading—objection that a bill is multifarious cannot be taken in this court for the first time. The objection that a bill is multifarious cannot be raised for the first time in this court. It should be made in the court below, either by demurrer, plea or answer.</p> <p>3. Same — what deemed a waiver of such objection. And, where a party files his answer, and goes into an examination of the testimony on the merits, he will be considered as having waived such objection.</p>

John M. Wilson, Chief Justice, presiding. This was an action of forcible detainer, brought by John Parker, before a justice of the peace of Cook county, against Charles M. Chadwick, to recover the possession of a house and lot in the city of Chicago. On the 2d of April, 1866, a trial was had, resulting in a judgment in favor of defendant. The case was removed by appeal to the Superior Court of Chicago.

<p>■ 1. Chancery—mistake in written instrument. A court of chancery will correct a written instrument, where clearly made to appear that it was entered into and executed under mistake.</p> <p>2. Practice—objections to bill in chancery—how made. Technical objections to a bill in chancery, to be available at any time, can only be raised by demurrer.</p> <p>3. Bes ad judicata—defense of. The fact that a complainant in chancery commenced an action at law, which he finally abandoned because it would be ineffectual, is no bar to the assertion of his rights in a forum where a remedy can he given.</p>

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

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

Madison B. Hollister, Judge, presiding. This was an action of forcible detainer commenced before a justice of the peace by George'W. Jackson and Henrietta A. Jackson, his wife, in the right of the latter, against William Burris. The cause was removed into the Circuit Court by appeal, where a trial resulted in a verdict and judgment for the plaintiffs. The defendant thereupon appealed to this court.

<p>1. Forcible entry and detainer—against whom the action mil Me. In case of a tenant holding over against his landlord, either the tenant, or any person claiming under him, is, by the express provision of the statute, liable to this action.</p> <p>2. But, in the case of a forcible entry, it is the person who makes it who is liable to the action.</p> <p>8. Probably, also, the action might lie against any person going in under the person who had made the forcible entry, collusively, with knowledge of such force, and for the purpose of availing himself of it, because such person might be well considered as himself committing the forcible entry.</p> <p>4. But, where a person has entered into the possession of premises, peaceably and in good faith, as the tenant of a purchaser from one who had previously made a forcible entry, the tenant, or even his landlord, not being a privy to the wrongful act of the grantor, or having any knowledge of it, such occupant is not liable to be turned out by this summary remedy.</p>

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

Charles R. Starr, Judge, presiding. This was an action of trespass brought in the court below by Cyrus Brainard, against Abram L. Small, and a trial resulted in a verdict and judgment for the plaintiff. The defendant thereupon appealed to this court.

<p>1. Measure of damages—in trespass against an officer for levying upon and selling the property of plaintiff under execution against another. While it is trae, as a general rale, that the value of property wrongfully sold on execution is the measure of damages sustained by the owner, still, that is not true -except in cases where the purchaser has obtained the property.</p> <p>2. A rule of more general application is, that in cases not requiring punitive damages, the loss actually sustained is the true measure.</p> <p>3. So, where the property of the plaintiff was levied upon and sold under an ^execution against another person, but remained in the possession of the owner, who sold it and received the benefit of the proceeds beyond the amount for which it had been sold on the execution, there being no circumstances connected with the levy and sale calling for punitive damages, the proper measure of damages in an action of trespass by the owner against the officer would be the actual damage sustained,—that is, the amount for which the property was sold on the execution.</p>

<p>Writ of Error to the Circuit Court of Warren county; the Hon. John S. Thompson, Judge, presiding.</p>

Benjamin B. Sheldon, Judge, presiding. This was an action of replevin brought in the court below, by Israel B. Holmes against Alfred Poppen, to recover a horse claimed by the plaintiff as his property.

E. S. Williams, Judge, presiding. This was a suit in chancery, instituted in the court below, in the right of Henry C. Pitney, Phoebe T. Watkins, and Mary E. Brayton, the children of Mahlon Pitney, deceased, in order to obtain a judicial construction of the will of Aaron Pitney, deceased, particularly of the fourth clause thereof, touching the equal distribution of the residuary fund therein provided for.

<p>1. Mortgage—relation of parties to each other—and as to strangers. A mortgage, as between the parties to it, is considered simply as a security for a debt, but, as between the mortgagee and a third person, the former is regarded as the owner of the freehold.</p> <p>3. Same—rights of the parties—rents and profits. A mortgagee, for condition broken, may enter upon the mortgaged premises and appropriate the rents and profits arising therefrom to the benefit of his security. But a mortgagor in possession is not required to account for the rents and profits to the mortgagee, during his possession.</p> <p>3. Same—payment of tares ly mortgagee—cannot affect the rights of mortgagor. A mortgagee cannot affect the rights of the mortgagor by purchasing the mortgaged premises at a sale for delinquent taxes; nor will he be permitted to set up as a bar to redemption the payment of taxes and possession acquired prior to a foreclosure; nor will payment of taxes and seven years’ possession by him, their relations not being adverse, create the bar of the statute.</p> <p>4. Same — rights of parties — mortgagee in possession. A mortgagee in possession is bound to pay the taxes, and will be allowed for all necessary expenses incurred to preserve the property and protect the mortgagor’s title, to be paid out of the rents and profits arising therefrom.</p> <p>5. Same—mortgagee of a lease, renewal by—inures to the benefit of the mortgagor. Where a mortgagee of a lease obtains a renewal, such renewal inures to the benefit of the mortgagor, he paying the mortgagee’s charges whether such lease expired before renewal or not.</p> <p>0. Same—sale under by mortgagee and purchase by, will not bar redemption. A mortgagee or a trustee is prevented from purchasing at his sale of the premises under a power contained in the deed, so as to bar the equity of redemption.</p> <p>7. Same — relation of the parties. Although the relation of trustee and cestui que trust may not be created by the mortgage as between the parties, yet they are-not on the same footing as to each other as a stranger to the estate; and many acts, which a third person might perform, and thereby acquire an interest in the premises, would not, if performed by a mortgagee, give him any new rights as against the mortgagor, but would inure to the benefit of the estate.</p> <p>8. Same—of the purchase by the mortgagee of an outstanding title—by consent of the mortgagor’. Where a mortgagee, by an agreement with the mortgagor, purchased an outstanding prior incumbrance against the premises, after foreclosure, and before the right of redemption by the mortgagor had expired, and with the understanding, that such title, like his own, should be subject to redemption, — held, that, under such agreement, the mortgagor had a clear right of redemption from the outstanding title, which a court of equity would enforce.</p> <p>9. Same—such agreement not within the statute of frauds. Such an agree, ment is not within the statute of frauds, the relation of the parties being that of mortgagor and mortgagee, and the purchase having been made by the consent of the mortgagor, and for the benefit of the estate.</p>

John M. Wilson, Chief Justice, presiding. On the 13th day of December, 1859, Robert Fergus, being the owner of sub-lot one (1), and the north twenty-five (25) feet of sub-lot two (2) of the subdivision of original lot six (6), in block three (3), in the fractional section fifteen (15), addition to Chicago, being sixty-five (65) feet fronting on State street, between Monroe and Adams streets, and one hundred and twenty-four feet in depth to the alley in rear, according to the…

Charles B. Lawrence, Judge, presiding. This was a suit in chancery, instituted in the court below, by Bobert Holloway against Archibald T. Graham, David Graham, Henry M. Boggess and Bobert iVIoir. The object of the bill is to enjoin the collection of a judgment recovered by the Grahams against Holloway and Boggess, and to procure its cancellation.

<p>Appeal from the Circuit Court of Lee county; the Hon. W. W. Heaton, Judge, presiding.</p>

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

E. S. Williams, Judge, presiding. • This was an action on the case, brought in the court below, by William Wood against Cumins & King, to recover the value of certain articles of household furniture, stored with the defendants by the plaintiff, and alleged to have been lost or broken while in the care of the defendants. The court found the issue for the plaintiff, and assessed his damages at $250, and judgment was entered accordingly.

<p>Writ of Error to the Circuit Court of Grundy county; the Hon. Sidney W. Harris, Judge, presiding.</p>

<p>1. New trial—of excessive damages. Where the jury, finding for the plaintiff, assess the damages at an amount in excess of what the evidence proves the plaintiff is entitled to, a new trial will be granted, unless on remanding the cause, a remittitur is entered for the damages so claimed to be excessive.</p> <p>2. Evidence—to explain a receipt.’ A written receipt is evidence of the highest and most satisfactory character, and, to do away with its force, the testimony should be convincing, and not resting on mere impressions, and the burden of proof rests on the party attempting the explanation.</p>

Writ of Error to the Circuit Court of Rock Island county; the Hon. Ira O. Wilkinson, Judge, presiding. This was a suit in chancery, brought in the court below, by William Allen against Samuel A. Strang, and others, in which the complainant sought to redeem from a mortgage.

<p>1. Evidence — authority to act as the agent of another — cannot be proven by the testimony of the parrty claiming it—uncorroborated. A party claiming that he had authority to act as the agent of another in a particular transaction, cannot establish such agency by his own uncorroborated testimony.</p> <p>2. Same—of agency—concerning acts of recognition by the principal in former cases — must have been known to the vendor at time of sale. Proof of the fact, that á person had on former occasions recognized another as his agent in making purchases for him, is not sufficient to charge him for a purchase afterward made by such person, claiming to act as his agent, without proof that at the time of such subsequent purchase the vendor was cognizant of such former acts of recognition.</p>

Silas L. Bryan, Judge, presiding. In July, 1865, George W. Whitaker, then sheriff of Lawrence county, levied an attachment on one hundred and sixteen head of cattle, and some other stock and personal property. The attachment was in favor of Mark Sunthimer, and against Charles Wheeler and Robert Potter. At the time of the levy, Daniel Wheeler claimed to own all the property, and was then herding the stock, and was in possession of the other property as the owner.

Joseph Gillespie, Judge, presiding. This was an action of assumpsit, brought by John S. Jenkins, against James M. Miller. The declaration contained the common counts for work and labor. Defendant filed the general issue with a notice of set-off. At the return term a trial was had before the court and a jury.

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.</p>

Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding.

Writ of Error to the Circuit Court of Clay county; the Hon. Aaron- Shaw, Judge, presiding. At the October Term, 1865, of the Clay Circuit Court, the grand jury presented an indictment against George Lewis and others, for stealing one mare of the value of $150, and one colt of the value of $50. A capias was issued, and defendant was arrested. The cause was tried at the Hay Term, 1867.

<p>1. Trust and trustees—resulting trust. A cestui que trust lias no preferable equity above any others in premises purchased by a trustee, where it appears that no part of the trust funds were invested in such purchase.</p> <p>2. Same. A invested trust funds in the purchase of certain premises, but only acquired an equitable title thereto, and afterward his widow, with her own funds, acquired the legal title to the same, and exchanged them for other premises. Held, in a suit brought by the cestui que trust, to subject these premises to the payment of her claim, that the equities of the parties were equal. That the one holding the legal title could pay off the claim of the other, which, if she refused to do, and the premises were not susceptible of division, they should be sold, and the party holding the legal title be first satisfied.</p>

<p>1. Quo warranto—in a proceeding by — when jurisdiction over defendant not acquired. Leave was granted a party to file an information in the nature of a quo warranto, notice of which was given the defendant, but without further process. A rule was entered requiring the defendant to plead, which he failed to do; and, proof of the service of the copy of the same upon him being made, his default was taken, and the court pronounced judgment of ouster against him. Held, that the court acquired no jurisdiction to enter the rule and render the judgment.</p> <p>3. Same —jurisdiction — how acquired. After leave given to a party to file an information in the nature of a quo warranto, the court can only acquire jurisdiction by service of a writ, under seal of the court, and running in the name of the people of the State of Illinois, or by voluntary appearance of the defendant. This was the practice under the statute of Anne, from which ours does not substantially differ.</p>

<p>1. Railroad—negligence. Where a passenger on a railroad attempts to pass from a train in motion, and not at a station, and is warned not to get off at that place, and the conductor takes hold of him to prevent him from passing from the car, — held, that the passenger is guilty of negligence if he passes from the train, and receives injury thereby.</p> <p>2. Same. It is not negligence to run a passenger train on the side track, where it is necessary to permit a freight train too long to run into the side track, to pass, when the evidence shows that such a course was not unusual.</p> <p>3. Verdict — against the weight of evidence. Where a verdict is manifestly against the weight of evidence, the court should on motion set it aside and grant a new trial, and failing to do so, this court will reverse for error.</p>

<p>Weed of Eebob to the Circuit Court of Marion county; the Hon. H. K. S. O’Melveht, Judge, presiding.</p>

William H. Green, Judge, presiding. This was an action of assumpsit instituted in the court below, by the appellee against the appellant, to recover back the sum of §1,000, alleged to have been paid by him to the appellant as a bribe. .

S. L. Betas, Judge, presiding. This was an action of debt, instituted by Bartholomew Hoy, in the Randolph Circuit Court, to the September Term, 1866, against Thomas S. Hoy. The declaration contained but one count, on articles of agreement under seal. Defendant craved oyer of the instrument sued on, and demurred to the declaration.

<p>1. Evidence—proof of formes' mcurriage—what insufficient to establish. In a proceeding to revoke letters of administration which had issued to the widow of M. deceased, upon the ground, that, at the time of her intermarriage with deceased, she had another husband, one W., then living,—held, that the proof of such former marriage, consisting simply of general report to that effect, and of the fact of cohabitation together as husband and wife, with one or more children born to them, is not sufficient to establish it.</p> <p>2. Mabriaq-e—prjeiumption that parties living together are married—may be rebutted. While the presumption of law is always in favor of a marriage between parties cohabiting together as man and wife, yet such presumption may be rebutted.</p> <p>3. Evidence—admissions—when insufficient to prove marriage. Nor, in such case, will proof of her admissions that she was married to such other person, coupled with the fact of cohabitation as man and wife, establish such former marriage.</p> <p>4. Marriage—issue of avoid marriage, have no rigid to administer on the estate of the deceased pa/rent. And in such case, if the marriage with deceased were void, the issue are illegitimate, and do not stand in a position to apply for a revocation of the letters of administration, they having no right to administer upon the estate.</p> <p>5. Same—legality of—should not be determined in a collateral proceeding. The legality of the marriage ought not to be determined in a collateral proceeding to revoke letters of administration granted to the widow; other proceedings should be instituted, whereby the whole merits of the case can be fully investigated.</p>

Clair county; the Hon. J. Gillespie, Judge, presiding. This was an action of assumpsit, originally brought by the appellee against the appellant, in the City Court of East St. Louis, where a trial was had, and judgment rendered for §71 and costs of suit. Appellant appealed from this judgment to the Circuit Court of St. Clair county, and judgment was there rendered in favor of appellee for §300; whereupon, the defendant below brings the cause to this court by appeal.

Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. At the March Term, 1865, of the Marion Circuit Court, the grand jury presented an indictment against A. Munroe and George Williams, for stealing several hundred dollars’ worth of United States treasury notes. They were apprehended, arraigned, and pleaded not guilty. On the 25th of March, at same term, a trial was had before the court and a jury.

Silas 1. Bryan, Judge, presiding. This was an appeal from the County Court to the Circuit Court of Marion county, to review the decision of that court, providing for the opening and establishing of a certain highway. In the court below, judgment was rendered for the appellee, whereupon the appellant brings the case to this court by appeal.

<p>1. New trial—improper instructions. Instructions not based upon the evidence in the case, and which were calculated to mislead the jury, constitute good grounds upon which to award a new trial.</p> <p>2. Same—nerfiiet against the evidence. Anew trial will be granted where the verdict of the jury shows a wanton disregard of the evidence.</p>

<p>1. Insanity—question of, tried by a jury. In all proceedings in chancery, involving questions of insanity, it is the duty of the court to direct that an issue be formed and tried by a jury.</p> <p>2. It seems, that, in cases involving questions of insanity, sanity is the rule and insanity the exception; and, where there is only a balance of evidence, or evidence merely sufficient to raise a doubt, the presumption in favor of sanity must prevail An instrument, therefore, made by a person of competent age, and under no legal disabilities, will, as a rule, be taken and held to be binding until incompetency is established; and the proof of that fact devolves upon the party contesting its binding force.</p>

Silas L. Bbyan, Judge, presiding, Israel Jennings, Sr., died, leaving a will, which, after declaring some specific legacies, contained the following clauses: “It is also my will, that my lands remaining undisposed of by this will shall be sold by my executors, at public sale, after giving such notice as my executors shall think necessary, upon the following terms, to wit: The purchaser paying one-fourth of the purchase money at the time of sale, and the residue in three…

Writ of Error to the Circuit Court of Lawrence county; the Hon. Justin Harlan, Judge, presiding. The facts in this case are sufficiently stated in the opinion of the court.

<p>Writ of Error to the Circuit Court of Jackson county; the Hon. John H. Mulkey, Judge, presiding.</p>

Aaron Shaw, Judge, presiding. This was an action of debt, instituted in the court below, by the appellant, against the appellee, Joseph G. Bowman, to recover the amount of a certain decree, rendered against one Ebenezer Z. Ryan, in the Circuit Court of the United States for the northern district of Illinois, for the sum of $45,467.27, and in favor of the bank of the State of Missouri.

Writ of Error to the Circuit Court of Pulaski county; the Hon. Wesley Sloak, Judge, presiding.

Writ of Error to the Circuit Court of Union county; the Hon. Walter B. Scates, Judge, presiding.

Silas L. Bryan, Judge, presiding. This was a bill in chancery filed in the court below, by the appellees against the appellants, surviving sureties of Willis Smith, deceased, guardian of the appellees, on their guardian bond, to compel an accounting for the funds of appellees. But a single question is presented by the record, which is stated in the opinion.

<p>Writ oe Error to the Circuit Court of Effingham county; the Hon. Hiram B. Deoius, Judge, presiding.</p>

<p>Delivery to one member of a firm—effect of. Where a firm composed of two members entered into an agreement to purchase a steamboat, and a third party guaranteed the payment of the notes given therefor, and the boat was afterward transferred by bill of sale and delivered to only one member of the firm, and on the trial the evidence tended to show that the transfer and delivery was in accordance with, and in fulfillment of, the original contract of purchase, it was held, that this was a transfer and delivery to the firm and not to the individual, and the guarantor was liable.</p>

<p>Distbess bob bent—warrant for—cannot issue after six months from the time of termination of lease. By the act of 1857, the common law relative to proceedings for distress for rent is so modified, as to authorize distress to be made for the period only of six months after the expiration of the lease; and, where a distress warrant issues more than six months after rent has become due, and the lease terminated, and the demised premises abandoned, such warrant is without authority of law, is null and void, and affords no protection to the officer levying it.</p>

<p>1. Partner—when unable to bind the firm. Without the consent of Ms copartners, one partner cannot bind the firm of which he is a member by giving the firm note in satisfaction of his personal indebtedness.</p> <p>2. So, where two parties formed a partnership, one putting in as stock Ms saw-mill and a quantity of saw-logs, and the other an equivalent in money, it was held, that the first party could not bind the firm by giving the firm note for a balance due upon the saw-logs, although the firm received the benefit of the logs.</p>

<p>Widow—of Tier rights upon a renunciation of the wilt. Under the fifteenth section of the dower act, the widow of a person dying testate and leaving no children or descendants of children, upon renouncing the will, is entitled to one-half the estate in fee, and to the specific articles enumerated in the statute ; hut she is not entitled to dower in the remainder of the real estate or to the whole of the personal property.</p>