Volume 45 — Illinois Reports

<p>Weit of Ebboe to the Circuit Court of Union county; the Hon. J. H. Mulkey, Judge, presiding.</p>

<p>Malice — when may be inferred from acts of a pa/rty. In an action on the case for revoking a person’s certificate of qualification as a school teacher, in order to show malice in such act, the plaintiff need not prove personal hatred or ill-will toward him. Evidence that the defendant acted rashly, wantonly and wrongfully, in the exercise of his authority, is sufficient, whereby malice may be inferred.</p>

<p>1. Want of service — an error personal to the parties not served. Where a bill of review was filed to reverse a decree in chancery, only charging that the ancestor of the complainants in the bill of review was not served with process, those complainants cannot make the point in the Supreme Court that other parties were not served, as a reason for setting aside a decree; for it appears that if the others were not served, it is for them to complain, and the error is personal to them, with which others can have no concern.</p> <p>3. Service of process—what the record must show. And in such a case, where the record shows a return of service on the ancestor of the complainants indorsed on the process, by leaving a copy with his wife, a member of his family, and is in all respects formal, it is sufficient.</p> <p>3. Recitals of record—when considered sufficient. Where the record recited that one defendant to a bill of foreclosure was defaulted on a failure to answer as ruled by the court, “ and the other defendants having answered admitting the allegations of the bill of complaint, it was, therefore, ordered, adjudged and decreed by the court that the same be taken as confessed by all of said defendants, and that the cause be referred, etc.,”— held, that, while this was a very inaccurate and informal mode of making out a transcript of a record, not containing the answers, still the Supreme Court will infer from it that the answers were filed and were before the court; and if they were not filed, it follows that the other branch of the statement is the true one, namely, that the bill was taken as confessed against all the defendants, since service on them is recited.</p> <p>4. Bill of review—necessary allegations of. The settled doctrine is, that a bill of review must either deny the justice of the demand established by the decree sought to be reviewed, or the complainants must allege that they have paid it and the costs, or else give a reason for omitting to do so.</p> <p>5. Same—when this objection must be made. But an objection of this kind should be made in the court below by a motion not to receive the bill; and where answers were filed and the case went to a hearing on its merits, it was held that the defendants had treated it as a bill properly filed, and must be bound by it.</p> <p>6. Creditors — their rights in chancery. Where some of the complainants in- a bill of review were simply contract creditors of the defendant in the decree which was attacked, and some of those who answered the bill of review were also creditors of the same person, but did not show that they had any judgments, it was held, thai neither of these classes of creditors had any status in a court of equity even to file a creditor’s bill, and that the bill of review must stand or fall on its own merits and could not be converted into a creditor’s bill.</p> <p>7. Fraudulent deed—conclusive as to the grantor and his hei/rs. Though a deed may be fraudulent and void as to the creditors of the grantor, it is valid and binding as to the grantor himself, and his heirs cannot set it aside; and if set aside by other parties they can have no interest in any controversy arising thereon, whatever bona fide judgment creditors may have.</p> <p>8. Decree op strict foreclosure—when proper. Upon a bill for foreclosure, where the proof shows that the premises at that time were not of greater value than the amount of the claim then belonging wholly to the complainants, and a strict foreclosure is prayed for in the bill, it is not error in the court to approve a decree of strict foreclosure.</p> <p>9. Decree—-may be changed to a strict foreclosure at the second term. And where a decree was passed that the defendants pay the amount found by the report to be due, and that the premises be sold if the money was not paid in thirty days, and the cause continued, the complainant might properly make his motion for a strict foreclosure at the next term, and on making proof that the premises were worth less than the amount found due, the court might then properly order a strict foreclosure.</p> <p>10. Bona fide purchaser — Ms rights under a decree. And where, under such a decree, the premises were conveyed by the master in chancery to the complainant, and he afterward sold and conveyed the same upon full consideration to a bona fide purchaser without notice, and such purchaser answered a bill of review under oath, and his answer was allowed to stand uncontradicted and unquestioned, it was held that the position of the purchaser could not be assailed by any further proceedings under the bill of review, and that he was not affected by any error in the decree, should there be one.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. William H. Green, Judge, presiding.</p>

Writ or Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. This was a suit commenced before a justice of the peace in Marion county, by William A. Latham, as the assignee of a promissory note, against John E. Smith, the maker. The cause was removed into the Circuit Court by appeal, where a trial resulted in a verdict and judgment for the defendant. The plaintiff thereupon sued out this writ of error.

Silas L. Bryan, Judge, presiding. This is the same case referred to in the preceding opinion, which, upon being remanded, was again tried in the court below, the trial resulting as before, in favor of the defendant, and the plaintiff appealed to this court. The principal question arising on the record is, whether the congress has the power to require that an instrument shall be stamped, as a condition precedent to its admissibility in evidence in a State court.

Writ of Error to the Superior Court of Chicago. This was an action of assumpsit brought by Isaac Wells, survivor of Isaac Wells, and John Sears, plaintiff in error, against Mercie H. Miller, administratrix of Joseph C. Miller, deceased, defendant in error, to recover a balance due them upon the purchase price for lumber sold to the deceased.

Whit of Error to the Circuit Court of Woodford county; the Hon. Samuel L. Richmond, Judge, presiding. This was a prosecution for bastardy. A trial was had by a jury, who found that the defendant, Samuel Allison, was the father of the child. A motion for a new trial was made, and overruled. The defendant brought the case to this court by writ of error.

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

Charles R. Starr, Judge, presiding. This was an action on the case brought by the appellee in the court below, against the appellant, to recover the value of a mare, alleged to have strayed on the track of the appellant, and killed by their ' cars, through the negligence of the company to maintain a sufficient fence. The case is sufficiently presented in the opinion.

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

<p>1. Contract—performance of—wlien place of delivery is not mentioned. Where a party contracted with another for the delivery of a certain quantity of corn, at a specified time and place, at an agreed price, to be paid on delivery and inspection, which contract was fulfilled by both parties, and a short time after the vendor addressed a telegram to the Vendee, offering to sell him another quantity of corn at a different price, which offer was accepted, but no mention was made of the place of delivery and inspection, or the terms of payment,—held, that such subsequent contract will be considered to have been made upon the same terms as the first one, as to payment, place of delivery and inspection.</p> <p>3. Same — to excuse performance of—contract must so provide. The rule is well established, that, where a party by his own contract creates a duty or charge upon himself, his undertaking must be substantially complied with under any and all circumstances. To excuse a performance his contract must provide for it.</p> <p>3. Agency—when agent mil not beheld liable to his principal. Where a party-contracted. to deliver to another, at a specified time and place, a certain quantity of corn, to he paid for on delivery and inspection, and upon its delivery and inspection a portion of it was rejected, which portion the vendor directed the vendee to dispose of to the best advantage, and a sale was made,— held, that the vendee thereby became the agent of the vendor for the disposal of the corn; and, the proof showing it to have been done to the best advantage, the proceeds thereof fully accounted for to his principal, and no negligence or fraud being shown, the principal must suffer whatever loss accrued by such sale.</p> <p>4. Instructions—wnen may be refused. It is not error for the court to refuse to give the instructions asked by a party, provided those given covered the entire case and submitted it properly to the jury.</p> <p>5. Contracts—extension of time of performance of—creates no release of the liabilities of the vendor. Where a party agrees to accept of an article contracted to be delivered at a place or time other than that agreed upon, a performance of this is equivalent to a performance of the original undertaking. Such agreement to deliver at a different time or place creates no new contract by which the liabilities of the vendor on the original contract are changed.</p>

<p>Appeal from, the Circuit Court of Knox county; the Hon. John S. Thompson, Judge, presiding.</p>

John S. Thompson, Judge, presiding. The facts in this case are the same as those stated in the opinion delivered in the next preceding case.

<p>Appeal from the Circuit Court of Henry county; the Hon. Ira O. Wilkinson, Judge, presiding.</p>

<p>1. Husband and "wive—in suits to recover for injuries to wife—when need not be joined. In a suit to recover for injuries inflicted on the wife, or her property, where it appears that at the time of 'its commencement, they were living separately, without fault on her part, the husband need not join.</p> <p>2. Same—when will be presumed as living together. And when, in such case, it appeared that the husband had consented that the suit might be brought in their joint names, it will he presumed that they were living together at the time of its commencement, and when his consent was given, and he will not be permitted to show to the contrary, and that such suit should have been brought in the wife’s name alone.</p> <p>8. Same — husband may dismiss suit—unless indemnified. After suit brought in such case, he may, however, have it dismissed, unless indemnified against liability for future costs, for its further prosecution.</p> <p>4. Same — cannot claim, indemnity for costs already accrued. But he cannot require indemnity for costs already accrued in the suit.</p> <p>5. Same — of the bond of indemnity—wife joining in—not liable to husband. In such case, the wife joining in the execution of the bond of indemnity to the husband, does not render her liable to the husband. The act of 1861 in no wise changes the relations of husband and wife in this respect.</p> <p>6. Same—nor vitiated by h&r joining in. Nor would such bond be vitiated by her joining therein, as in' a suit upon it, she might be disregarded as a party, by averring that she was feme covert.</p>

Writ of Error to the Circuit Court of Bureau county; the Hon. M. E. Hollister, Judge, presiding. This was an action of replevin, originally brought by John Shugart, Jr., against Frederick Stoner and William Stoner, before a justice of the peace, to recover the possession of a colt which was taken up by the defendant while in their field, and which they refused to give up until their charges were paid. The trial before the justice resulted in favor of the plaintiff.

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

Erastus S. Williams, Judge, presiding. This was an action of covenant brought in the court below by the appellee, Maria Anapow, for the use of Albert Michelson, against the appellant, the Peoria Marine & Eire Insurance company, upon a policy of insurance, for $3,000, on a stock of tobacco, which had been destroyed by fire. The case was tried before a jury, who found a verdict for the plaintiff for $3,090.

These were actions commenced by the appellant against the appellees, in the police court of the city of Chicago, for an alleged violation by them of an ordinance concerning slaughtering within the corporate limits. Appellees were fined in the police court, and appealed to the Superior Court, where a trial was had before the court, who rendered judgment for the appellees, from which appellant has prosecuted appeals to this court.

Charles B. Starr, Judge, presiding. This was a bill in chancery filed in the Livingston county Circuit Court, by Nelson Buck, against Sarah Beekly and Cyrus Bnrhans.

Charles R. Starr, Judge, presiding. This was an action of debt on an injunction bond, brought in the court below by the appellees, John P. Hart and others, against Buckingham Sturges and John Stillwell, appellants, which resulted in that court in a verdict and judgment for the appellees, to reverse which the case is brought to this court by appeal. The facts in the case are sufficiently stated in the opinion.

Theodore D. Murphy, Judge, presiding. This was a bill in chancery, filed by the appellees against the appellants, in the Circuit Court of McHenry county, to set aside a will, on the ground that the testator had lost his reason and was incapable of making a will, and that his wife, having him entirely under her control and influence, fraudulently and by undue means caused him to make the will. The defendants filed their answer denying the material allegation of the bill.

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

Writ of Error to the La Salle County Court. This was a bill in chancery filed in the County Court of La Salle county, by Cushman against Michael Grob and others. The bill alleges, that one Michael Minehard was the owner of certain lands in La Salle county, subject to a mortgage of $1,400, to one Wylie, dated in 1861; that in October, 1864, one Wm.

<p>1. Cause of action—contract and tort—money had and recei/oed. When mineral has been obtained by a trespass upon the lands of another, and con verted into money, the trespass may be waived, and an action of assumpsit brought for the proceeds.</p> <p>2. Same—for money had and received—when may be brought. An action for money had and received maybe maintained, whenever a party has obtained money from another, which in equity and good conscience he ought not to retain, or has sold the property of another and converted it into money.</p> <p>3. Instructions—not based upon evidence, may be refused. It is proper for the court to refuse an instruction which is not based upon any evidence introduced.</p> <p>4. Assumpsit—action of—when privity between parties. A and B were owners of adjoining mineral lands. C went upon the land of B, sunk a shaft, and drifted upon the land of A, and sold the mineral raised -from A’s land to B without retaining the royalty due to A. Held, that there was such privity between the parties as would create a liability, it being a custom among miners to sell the mineral raised by them, the buyer, if a smelter, retaining the royalty due to the owner of the land. C must, therefore, be considered the agent of A in the sale of the mineral to B.</p>

Ebastüs S. Williams, Judge, presiding. This was a suit in attachment, commenced by the appellant in the court below, against one Samuel Nicolson, under chapter 9 of the Eevised Statutes, entitled “ Attachments in Circuit Courts,” and the appellee, the City of Chicago, was summoned as garnishee. July 20, 1867, the city, without having answered, was, on motion, discharged as garnishee, and judgment rendered against appellant for costs.

This was an action in assumpsit, brought by the appellants against the appellees, in the Superior Court of Chicago, for the breach of a contract made at Chicago, January 3, 1865, for the purchase by them of the appellants of 20,000 bushels of corn, at $1.30 per bushel, to be delivered in sacks at Cairo, within a reasonable time thereafter; the plaintiffs to guarantee weight and government inspection at Cairo; the corn to be paid for, less the cost of transportation, as the…

John $. Thompson, Judge, presiding. This was an action of assumpsit, brought by William Hub-hard. against the hoard of supervisors of Mercer county, to recover on coupons issued by Mercer county. The declaration contains only the common money counts. A jury being waived, the case was submitted to the court and a judgment rendered in favor of the plaintiff for $2,820. The board of supervisors bring the case to this court by appeal.

Madison E. Hollister, Judge, presiding. This was a bill in chancery filed by the appellant in the court below, against the appellee, formerly his copartner, to compel the payment of a certain book account against him, which it was alleged was due and owing to the firm, composed of these par-dies, at the time of the dissolution of the same, and the sale of all the partnership property to appellant by appellee, and which account passed to appellant by said sale, with the…

E. Gr. Montony, Judge, presiding. This was an action on the case, brought by Thomas Hewlan and James Hennessy, the appellees, against Lawson A. Wins-low and Stephen C. Grillett, the appellants, for deceit, in the Court of Common Pleas of the city of Aurora. On the trial in the court below, the jury found for the plaintiffs, and assessed their damages at $2,284. A motion for a new trial being overruled, a judgment was rendered upon the verdict.

Wbit of Ebbob to the Recorder’s Court of Chicago; the Hon. Evebt Van Buben, Judge, presiding. The plaintiff in error was indicted for forgery at the October Term, A. D. 1866, of the Recorder’s Court of Chicago. On being arraigned, he pleaded not guilty, and entered his motion for a continuance, which being overruled, exceptions were taken. . . The affidavit for a continuance was as follows : “ State of Illinois, Recorder's Court of the city of Chicago. “ J. R. Steele ads.

Wbit of Ebbob to the Circuit Court of Warren county; the Hon. H. M. Wead, Judge, presiding. This was a petition filed in the Circuit Court of Warren county, on the 2d day of August, A. D. 1853, for the sale of real estate, by Eleazer A. Payne, administrator of the estate of Bushnell Willey, deceased. A decree was rendered at the October Term, 1853, in accordance with the petition.

This was an application to this court for a peremptory writ of mandamus, in the name of the people of the State of Illinois, on the relation of Benjamin S. Prettyman and others, constituting the board of directors of the Pekin, Lincoln and Decatur Railroad company, against the board of supervisors of Logan county, to compel them to submit to the legal voters of that county a proposition for subscription to the capital stock of said company to the amount of $300,000, and to…

Writ or Error to the Circuit Court of Peoria county; the Hon. Sabin D. Puterbaugh, Judge, presiding. This was a proceeding instituted by Matilda Wightman for an attachment against John Wightman for a contempt of court in refusing to pay alimony as provided in a decree for divorce between the parties. An attachment was issued, upon which the defendant was arrested and brought into court. The defendant moved to he discharged, which was refused.

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

Isaac G. Wilson, Judge, presiding. This was a hill in chancery filed by the appellant in the court below, against the appellee, to redeem certain premises theretofore quitclaimed by him and his wife to appellee; appellant claiming, that such conveyance was made for the purpose of securing the payment of a certain indebtedness of appellant to appellee. The further facts in the case necessary to its understanding, are fully presented in the opinion.

Sabot D. Puterbaugh, Judge, presiding. This was an action of trespass for an assault and battery, commenced by George Pageter against Nelson Clark. On the trial a verdict was rendered in favor of the plaintiff for §125. A motion for a new trial was overruled, and judgment entered upon the verdict. The defendant below brought the case to this court by appeal.

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

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by John Muldoon, appellee, against Mary Ann Adlard, appellant, in the Superior Court of Chicago, to recover the balance on a contract for furnishing materials and building several cottages.

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

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

<p>New tbial—verdict against the evidence. When there exists a great conflict of evidence on both sides, this court will not undertake to determine the weight of the evidence, the facts, by a fair intendment, warranting the verdict of the jury.</p>

Writ of Error to the Circuit Court of Livingston county; the Hon. Charles E. Starr, Judge, presiding. This was an action of covenant, brought by the defendant in error, in the Circuit Court of Livingston county, against the plaintiff in error, to recover upon a policy of insurance for a loss sustained by him. In the court below, judgment was rendered in favor of the plaintiff for $180 and costs of suit, to reverse which a writ of error has been sued out of this court.

Benjamin E. Sheldon, Judge, presiding. This was an action of assumpsit, brought by Thomas Stover against James Mitchell, in the Circuit Court of Stephenson county. The case was tried by a jury, and a verdict found for the defendant. A motion for a new trial being overruled, a judgment was rendered upon the verdict. The case was brought to this court by appeal.

<p>1. Evidence—town records—what sufficient identification of to admit in emdence. Where, from the bill of exceptions, it appeared that a witness testified that he was then acting as town clerk, and stated, “ this is the town record,” and thereupon such record was offered in evidence, which was objected to, but no specific objection assigned,—held, that such identification was sufficient to admit the record to be read in evidence.</p> <p>3. Statutes—penal—must he strictly construed and observed—in proceedings under to divest title. In all penal and summary proceedings for the divestiture of title to property, the law must be strictly construed, and its requirements rigidly observed.</p> <p>3. Ordinances — authorizing summary proceedings, for appraisement of damages, and prohibiting a trial by jury—void. An ordinance of the town of Chatsworth, restraining stock from running at large, provided, among other things, that if the owner failed to reclaim them within a certain time, “ and pay all costs of impounding, and the damages which the stock may have done, the damages to he assessed by three disinterested men, citizens of said town,” they should he sold to satisfy such costs and damages,—held, that the ordinance was unconstitutional and void; that, the proceeding being one for damages, the owner was entitled to a trial by jury, the same as in any other case at law, and could not he deprived of such right.</p>

This was an action of debt, brought upon a judgment, recovered against the appellants by appellee, in the Superior Court of the city of New York, at the November Term thereof, 1856, for $97.82 damages, and $42.38 costs of suit. The court below rendered judgment for appellee, to reverse which the case is brought to this court by appeal. The further facts appear in the opinion.

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>This was an application to the court below for a writ of mandamus, in the name of the people of the State of Illinois, on the relation of William F. Whitmore against Herman Silver, the clerk of the Circuit Court of La Salle county, and ex officio recorder of deeds, to compel him to allow the relator access to his office and the records thereof, for the purpose of transcribing the same, in conformity to a resolution of the board of supervisors of Grundy county.</p>

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

Erastus S. Williams, Judge, presiding. James A. Parsons, the appellant, filed his bill in equity against David J. Ely and others, appellees, in the Circuit Court of Cook county, on the 28th day of April, A. D. 1863, to compel them to convey to him certain premises in the city of Chicago, to which he claimed title as the heir of his deceased child, Sarah Ely Parsons, the legal title to said premises being vested in the appellees.

ChAkles E. Stake, Judge, presiding. This was an action of assumpsit, brought by the appellee against the appellant, upon three promissory notes given for the purchase money of land. The defendant filed a plea of non assumpsit, and three special pleas of failure of consideration. A demurrer was interposed to the special pleas, and sustained by the court. A trial was had, which resulted in a verdict for the plaintiff for $2,687.80.

John S. Thompson, Judge, presiding. This was an action of forcible entry and detainer originally brought by John B. Hoag, the appellee, against John C. Smith, the appellant, before a justice of the peace, and taken to the Circuit Court of Mercer county by appeal. The defendant was found guilty as charged in the complaint. A motion for a new trial was overruled, and judgment rendered upon the verdict.

<p>1. Acknowledgment oe deeds in another State—certificate of conformity. A deed for land lying in this State, wherein the parties were described as of the State of Massachusetts, purported to have been acknowledged before a notary public, appended to which was the following certificate: “ Commonwealth of Massachusetts, Superior Court, Suffolk county, ss.: I, F. H. Underwood, clerk of the Superior Court in the county of Suffolk, State of Massachusetts, being a court of record, do certify that Seth Frinkham was, on the 11th day of April, 1818, a notary public in the county of Lincoln, in the State of Massachusetts, duly commissioned and qualified to act as such. And I further certify that the signature of the said Seth Frinkham to the annexed acknowledgment is genuine, and that said acknowledgment is in conformity with the laws of said State of Massachusetts, in force on the 11th day of April, 1818.” In witness, etc., with the seal of the court attached. This was held to be a certificate of conformity in exact compliance with our statute, and the deed was admissible in evidence, without further proof.</p> <p>2. Notary public — evidence. Proof of the official character of a notary public, using a notarial seal, is not required.</p>

Writ op Error to the Circuit Court of Peoria county ; the Hon. Sabin D. Puterbaugh, Judge, presiding. This was originally a suit brought by Eliza Murphy against John Murphy, defendant in error, for divorce and alimony. The bill charges extreme and repeated cruelty. The complainant having returned to her husband and abandoned her suit, her counsel, the plaintiffs in error, filed their petition for additional attorneys’ fees.

Writ of Error to the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding. This was an indictment presented by the grand jury of Will county against Luke Fant, the plaintiff in error, for keeping open a tippling house on the Sabbath day. The defendant was tried by a jury and found guilty. A motion for a new trial was overruled. The defendant was fined $100. The ‘case is brought to this court by writ of error.

<p>Writ of Error to the Oircnit Court of Henry county; the Hon. Ira O. Wilkinson, Judge, presiding.</p>

Charles H. Wood, Judge, presiding. This was a hill in chancery for an injunction, filed in the Circuit Court of Kankakee county, by Felix Beauchamp, the appellant, against the board of supervisors, the county treasurer, the county clerk, and Charles B. Starr, appellees, enjoining the payment of a county order issued to the Hon. Charles B. Starr, for his services as circuit judge.

<p>1. Estoppel. A decree in equity, upon the same points, between the same parties, where the matters in controversy were specifically determined, is good as a plea in bar, and when given in evidence constitutes an estoppel in a subsequent suit.</p> <p>2. Where a party fails to make his rights known, where fairness and good conscience require that he should do so to protect the interests of others, he cannot be heard as against them to assert such rights.</p> <p>3. Equity op bedemptioh. The purchaser of an equity of redemption succeeds to all the rights of the vendor.</p>

<p>Writ oe Error to the Circuit Court of Iroquois county; the Hon. Charles R. Starr, Judge, presiding.</p> <p>This was a bill in chancery, filed by Jonathan J. Lyman, the plaintiff in error, in the Circuit Court of Iroquois county, against Lucy Russell, Frank Russell, and Lora Russell, heirs of William E. Russell, deceased, setting forth that on the 27th day of June, 1855, one William Bandy sold and conveyed to Samuel Lyman the north-east quarter of the north-east quarter of section 25, town 28 north, range 13 west; and that said Samuel Lyman took and continued in the actual possession until February 17, 1860, when he sold to Jacob Lyman, who then took possession and continued to hold the actual possession of the same until February 18, 1863, when he sold it to the plaintiff in error, Jonathan J. Lyman; that all of said Lymans were and continued in the open and notorious possession of the land from June 1855. The bill alleges that on the 20th day of January, 1858, while said Samuel Lyman was in the actual and notorious possession, the said William Bandy mortgaged said land to O. L. Davis, executor of William E. Russell, deceased, and the mortgage was subsequently foreclosed, and the land sold to pay the amount due thereon. Hone of the Lymans were made parties to the bill of foreclosure.</p> <p>The bill alleges, that the deed from Bandy and wife to Samuel Lyman, was not filed for record until August, A. D. 1864. The bill prays that the mortgage and the proceedings to foreclose be set aside. The oath of the defendants was waived.</p> <p>The answers denied all knowledge of the deed from Bandy and wife to Samuel Lyman, and the subséquent conveyances; and denied all knowledge of any interest of said Samuel Lyman and others in the land, until after the foreclosure of the mortgage. The complainant filed a general replication.</p> <p>The cause was heard upon bill, answer, replication and proof submitted upon the trial, and a decree rendered dismissing the bill. The proofs fully sustained the allegations of the bill.</p>

Writ of Error to the Circuit Court of Mercer county; the Hon. Arthur A. Smith, Judge, presiding. This was an action of ejectment commenced by William Clark, the plaintiff in error, against Thomas L. Powers, the defendant in error, in the Circuit Court of Mercer county, to recover the H. E. -j- of the S. E. \ of section 14, town 13, H. E. 1 W. in Mercer county. A jury being waived, the cause was submitted to the court and judgment rendered for the defendant.

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

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

S. W. Harris, Judge, presiding. This was an action of trespass, brought by the appellee in the court below, against the appellant, sheriff of Grundy county, for levying a writ of attachment, sued out of the Circuit Court of Grundy county, against one William T. Stewart, in favor of Charles Beardslee & Bros, upon the stock of goods alleged by appellee to have been purchased by him from said William T. Stewart. The further facts in the ease are stated in the opinion.

<p>1. Pleading at law—of pleas in dbatement—mustie accurate and precise in their structure. Pleas in abatement require accuracy and precision in their structure, and must be certain to every intent, and devoid of any repugnancy.</p> <p>2. Same — certainty of a pa/rticular plea. In an attachment suit, the defendant pleaded, “that he was not a non-resident at the time the writ issued,” and it appeared by the record, that the affidavit for the attachment was filed, and the writ issued and bore date, on the same day: held, that the plea was certain, and in effect was equivalent to one denying the non-residence at the time of making the affidavit, both having been made on the same day.</p>

<p>Heaizth depabtmeht—construction of statutes. The act of 1867, organizing the health department of the city of Chicago, conferred upon the commissioners power to appoint sanitary inspectors, and do Whatever to them seemed necessary to carry out the objects of that act.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding.</p> <p>This was an action of assumpsit, brought by the appellant against appellee, in the court below, on a policy of insurance against loss or damage from fire, in the sum of $1,250. The cause was tried by the court, who found for the defendant, whereupon an appeal was taken to this court. The further facts in this case are fully stated in the opinion.</p>

<p>Insurance—of the policy—description of property. A policy of insurance on a stock “ contained in the two story frame building occupied by the assured as a chair manufactory situated on the north side of Superior street,” etc., covers only such stock as is contained in the specific building named in the policy.</p>

W. W. Heaton, Judge, presiding. This was an action in assumpsit, originally brought by the appellee, before a justice of the peace, against the appellant, on a negotiable note, made by him, and payable to the Union Dispatch company, or bearer, and indorsed by the said company to the appellee.

Writ of Error to the Circuit Court of Cook county; the Hon. Erastus.S. Williams, Judge, presiding. 'This was an action brought by the plaintiffs against the defendant to -recover commissions on the sale of real estate. ‘.The verdict and judgment were against the plaintiffs. The case is brought to this court by writ of error. The facts appear in the opinion.

John A. Jameson, Judge, presiding. This was an action of assumpsit, brought by John S. Voshurgh, against the Chicago and Great Eastern Railway company, in the Superior Court of Chicago, to recover for work and labor done, and materials furnished, in the construction of an embankment. The cause was tried before the court and jury, and a verdict found for the plaintiff, and his damages were assessed at $5,639.42.

Joseph E. Gary, Judge, presiding. This was an action of ejectment, brought by Porter against Hague, to recover the possession of lot No. Y3, in the S. E. £ of B. 33 in the canal trustees’ subdivision of section Y, T. 39, N. B. 14, E. of the 3d P. M., in Cook county. A jury being waived, the case was tried by the court. The court found the defendant guilty, and that the plaintiff is the owner of the premises in fee.

Benjamin E. Sheldon, Judge, presiding. This was a bill in chancery filed in the Circuit Court of Stephenson county, by Patrick Bellew, against Matthew Henderson and Jacob Eeigard.

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

William W. Heaton, Judge, presiding. This was an action of trover brought in the court below, by the appellee against the appellant, to recover back a certain sum of money, alleged to have been fraudulently taken from him by appellant.

Writ of Error to the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding. Harriet Steel, the defendant in error, filed her petition in the Circuit Court of Cook county, against George I. Stow, the plaintiff in error, for the assignment of dower. The defendant answered the petition, and a replication was filed.

Writ or Error to the Circuit Court of Stephenson county; the Hon. Benjamin R. Sheldon, Judge, presiding. This was an action of trespass, brought in the court below, by William D. Carver against J. Russell Jones and Frederick L. Kent, for false imprisonment. The declaration contains four counts.

Charles H. Wood, Judge, presiding. This was an action of assumpsit, brought by Allen against Payne, to recover for certain household goods and furniture sold by Payne to Allen, then in a hotel in Kankakee, for which he paid $1,500. Payne, after having received the purchase price agreed upon, removed, or permitted to be removed, a portion of the furniture claimed by Allen to be included in his purchase.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding.</p> <p>This was a hill in chancery, filed in the court below by the defendant in error, as a judgment creditor of one Richard P. Morgan, against the plaintiffs in error, Dennis Beach, Peter W. Beckham and Ezra M. Prince, to enforce the satisfaction of his judgment out of certain funds in the hands of plaintiffs in error, alleged to have been received by them in trust for the payment of this, together with other claims, by reason of an assignment made by Morgan to Peckham.</p>

Ebastus S. Williams, Judge, presiding. This was an action of trover, instituted in the court below, by the appellee, Silas H. Sherman, a minor, by his next friend, Joel S. Sherman, against appellant, to recover the value of two certain war fund bonds belonging to the appellee. • The cause was tried before a jury, who found the appellant guilty, and assessed the damages against him at the sum of $226.J2.

Writ of Error to the Superior Court of Chicago; the Hon. John M. Wilson, Chief Justice, presiding. This was an action of debt, commenced January 6, 1860, on a promissory note made out of this State, the cause of action accruing out of this State, and which matured October 4, 1843, of which the following is a copy: “£96 15s. 2d. c’y. Kingston, August 4th, 1843. “ Two months after date, I promise to pay Messrs.

<p>1. Chancery—eases in—when issues of fact should he tried by a jury. In suits in chancery, where the evidence is contradictory, and of such character as to .render it a difficult task to arrive at any definite conclusion concerning the merits of the case, the court should require the issues of fact to be determined by a jury.</p> <p>2. Same—when court may require issues to be tried by a jury. It is within the discretion of the chancellor, to require the issues of fact arising in equity cases, to be tried by a jury at any time before decree.</p>

Erastus S. Williams, Judge, presiding. This was an action of forcible detainer, by Hoffman against Bulger and Walsh, commenced before a justice of the peace in Cook county, and on appeal to the Circuit Court was dismissed. The cause was brought to this court, and the order for dismissal assigned for error.

Writ of Ebbob to the Circuit Court of Putnam county. This was a proceeding instituted in the name of the people, against Andrew C. Nixon, for bastardy. Pending the suit, the mother of the child died, and, the court below holding that the suit was thereby abated, it was dismissed, and the cause is brought to this court by the people, and the question is presented whether the death of the mother should abate the suit.

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

<p>1. Judgment for costs—a lien upon real estate. Under section 1 of chapter 54 of the Bevised Statutes, a judgment for costs is a lien upon the real estate of the party against whom such judgment is rendered, from the last day of the term of the court in which it was entered.</p> <p>3. Creditors—who deemed to he. A creditor, within the meaning of section 33 of chapter 34 of the conveyance act, is one, who, without actual or constructive notice of a prior conveyance or incumbrance, institutes such proceedings and takes such steps as effect a lien on the land before the recording of such conveyance or incumbrance, whether the debt be prior or subsequent to them, and whether the vendor, at the time of conveying or incumbering, had other property sufficient to pay the debt or not.</p> <p>3. Same. And a plaintiff in a judgment for costs, is a creditor within the meaning of this section of the recording act.</p> <p>4. Subsequent purchaser—under execution, without notice of a prior con veycmce. A purchaser of land at an execution sale is protected in his title against a prior unrecorded deed of which he had no notice.</p> <p>5. In such case, the court cannot go behind the judgment to ascertain the subject matter of the controversy; it is sufficient that the defendant is enabled to show a valid judgment, under which the property was sold, it being the settled rule of this State, that judgment creditors are within the protection of the 23d section of the conveyance act, and stand as purchasers, and are to be regarded as such.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding. This was an action of ejectment brought by Potwin against Cades and others, to recover thirty acres of land situate in section 13, town 39, range 13 east, in Cook county, Illinois. The plaintiff claimed title under a sale in the nature of a tax sale for drainage assessments, levied by the Cook county drainage commissioners, under the act of June 23, 1852.

Eeastüs S. Williams, Judge, presiding. This was an action of trespass vi et armis, brought by the appellee against the appellant, for an assault and battery. The case was tried in the Circuit Court of Cook county, at the October Term, A. D. 1866, and resulted in a verdict in favor of the plaintiff for $300. A motion for a new trial was overruled and judgment rendered upon the verdict. The case was brought to this court by appeal.

<p>Damages—measure of—affected Try time—when deemed material. In an action upon an injunction bond, the declaration alleged that the writ issued September 22,1864, and was dissolved October 24th following. Held, that proof of the market value of the grain affected by the injunction, on the 30th of November, 1864, was inadmissible; that the liability of the defendants was to be measured by proof of the value at the time the writ issued and when it was dissolved.</p>

Writ op Error to the Circuit Court of Iroquois county; the Hon. Charles R. Starr, Judge, presiding.

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

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

Erastus S. Williams, Judge, presiding. This was an action of trover, brought by Mercie H. Miller, administratrix of Joseph C. Miller, deceased, against Isaac Wells and John Sears, impleaded with John S. Moble, for the tortious taking of a certain quantity of lumber. This case was before the court at a former term, and is reported in 37 Ill. 276, where the facts of the case may be found fully stated in the opinion then delivered.

<p>1. Limitation of actions—sewn years’limitation act—when the statute begins to run. Under the seven years’ limitation act óf 1889, the concurrence of three things is required before the limitation begins to run,—namely, color of title, possession, and payment of taxes.</p> <p>2. Same—payment of taxes—when cannot relate bach to date of possession taken. And where the first payment of taxes was made after the acquisition of color of title and possession, such payment cannot relate back to the time when possession was acquired.</p> <p>3. Same—before the bar is complete—smenfull yea/i’s must home passed since the first payment of taxes. The payment of taxes for seven years, coupled with color of title and possession, is not sufficient to create the bar; a period of seven full years must have intervened between the day when the first payment of taxes was made and the day of the commencement of suit.</p> <p>4. Same—twenty years’ adverse possession—party claiming under, what he must show. Where a party claims to have held adverse possession for a period of twenty years, in order to avail himself of that defense he must show, that he, and those under whom he claims, have had the actual possession of the premises for twenty years before suit is brought.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. George Manierre, Judge, presiding.</p>

Wbit op Ebbob to the Superior Court of Chicago. This was a proceeding by information in the nature of a quo warranto, instituted in the court below by the defendant in error, against the plaintiffs in error, Jacob Bunn, John W. Smith, James H. Beveridge, James C. Bobinson, William T. Vandeveer, Phillip Wadsworth and William L. Hambleton, to test the constitutionality of the act of the legislature of 1867, providing for the erection of a new State house, upon the ground that…

Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward T. Bice, Judge, presiding. This was a bill in chancery originally filed in the Circuit Court of Tazewell county, by the plaintiffs in error, Caroline M. Waldo and Josiah C. Waldo, against the defendants in error, Sarah C. Cummings and Columbus B. Cummings, for a construction of the will of one David Mark.

<p>1. Partnership—liability of the firm for money borrowed by one of the partners. Where the managing partner of a firm engaged in the lime business borrowed of another his check, which he directed to be made payable “ to currency,” upon his promise to return the amount within an hour or so, and as soon as he should collect some lime bills due the firm, which he then had in his possession, and afterward the partnership was dissolved, it appearing by the proof, that such managing partner had been in the habit of so borrowing money from time to time to meet the firm liabilities, and that the money so borrowed was for such purpose, whether afterward applied in the partnership interest or not, — such partners were individually liable to pay it.</p> <p>3. Evidence—what admissible. So, where the bookkeeper who wrote the check entered at the time, upon the stub of the check, that it was drawn payable to the firm, it was held, that the stub was evidence of the fact that the credit was extended to the firm.</p>

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

Benjamin It. Sheldon, Judge, presiding. This was an action of replevin brought by Israel Underwood, the appellant, in the Circuit Court of Stephenson county to replevy from Miles White, the appellee, cattle, hogs, etc. The defendant filed five pleas, viz.: first, non cepit; second, non detinet; third, that property was not in the plaintiff; fourth, property in defendant; fifth, property in William Corning, Daniel W. Hays and Alanson P. Kenedy.

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

<p>1. Ne&ligence. Where a person receives an injury occasioned by the negligence of another, he will be entitled to recover, unless by his own fault he has materially contributed to the injury.</p> <p>2. Landlord and tenant—of an entry by the former to make repairs or improvements. A tenant does not lose possession in any sense that would impair his own rights, merely because a person enters under the direction of the landlord to make repairs or improvements; and if, during the progress of such repairs or improvements so being made by the direction of the landlord, the tenant received personal injuries by reason of the negligent manner in which such repairs or improvements were being done, the tenant not materially contributing to the injury by his own fault or negligence, the party whose negligence occasioned the inquiry must respond to him in damages.</p> <p>3. And if an employee of such tenant, while in the line of his duty as such, receives injuries from such negligence on the part of the person doing the work, the latter must respond to him also in damages. So, where the tenant was occupying the premises as a retail merchant, and a person under the direction of the landlord entered thereon to excavate a cellar under the building, and, while such excavation was in progress, a lady customer of the store, while in passing, had her hat blown off and into the excavation, and the clerk in the store, at her request, went under the building to get the hat, and while in the act, the building fell, in consequence of the negligent manner in which the landlord’s servants did the work, and the clerk was injured thereby; it was held, that the clerk was in the line of his duty as such, as an act of civility and courtesy, and the party who so negligently did the work was liable to him in damages for the injuries so received, the clerk not materially contributing to the injury by any fault or negligence of his own.</p>

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

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

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

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

<p>Appeal from the Circuit Court of Will county; the Hon. Sidney W. Harris, Judge, presiding.</p>

<p>Negligence — degrees of compared. In actions for negligence the plaintiff to recover, must show, that the injury sustained, resulted from the negligence of the defendant, and not from any default on his part, which materially contributed to it; or, if not wholly free from fault himself, that his negligence was slight in comparison with that of defendant.</p>

<p>1. Debt—meaning of the term. Any liability to pay money, growing ont of a contract, express or implied, constitutes a debt, within the meaning of the 15th section of article 13 of the Constitution of this State, concerning imprisonment for debt.</p> <p>2. Imprisonment for debt—capias ad respondendum. Before a person can be held to bail on a capias ad respondendum, for debt, it must appear, by affidavit, that he has been guilty of fraud, or that there is a strong presump, tion, from facts stated, that he has been guilty.</p> <p>3. Same—affidavit for capias ad respondendum—what it must contain. An affidavit to hold to hail must show both the constitutional and statutory grounds for issuing a capias ad respondendum.</p> <p>4. The substance of an affidavit which is held to be sufficient for a capias ad respondendum is stated in the opinion.</p>

<p>Writ of Error to the Circuit Court of Kankakee county; the Hon. Charles R. Starr, Judge, presiding.</p> <p>This was an action of replevin, instituted by the defendant in error, as administratrix of Emilien Boudreau, in the court below, against the plaintiff in error, the father of the deceased, to recover two bay mares, claimed by defendant in error, to have been a gift to her deceased husband by his father. The cause was tried before a jury, who found a verdict for the plaintiff, whereupon the defendant made a motion for a new trial, which was overruled by the court, and judgment entered upon the verdict, to reverse which the cause is brought to this court by writ of error.</p>

This was an action of assumpsit, instituted in the court 'below by the appellee, Isaac Marks, against one M. Myers, : against whom judgment was rendered, and the appellee summoned as garnishee. Appellant had issued a policy of insurance to one M. Morris, by the terms of which it agreed to insure him against loss by fire to the extent of $2,000, upon a -certain stock of goods, then in the store, No. 227 Clark street, in the city of Chicago.

<p>1. Evidence—concerning undue influence exercised over the mind of a testator — what inadmissible. A party charged with having exercised undue influence over the mind of a testator, whereby the will in controversy was executed, cannot be permitted to introduce in evidence, to disprove such charge, a will executed by the testator prior to the one in question, and which he had canceled, the testamentary disposition made by it being totally variant from the one in dispute.</p> <p>3. Same—what admissible to show mental capacity of a testator. Where a witness had expressed a decided opinion as to the mental capacity of a testator, it is proper, on cross-examination, to inquire as to any business transactions which the witness may have had with him, at the time he testifies such opinion was formed, and the manner in which the testator then conducted.</p> <p>3. Same—concerning opinions of witnesses—not experts. A person who is not an expert, may give his opinion concerning the mental capacity of a testator, after first detailing the particular facts and circumstances upon which he bases his judgment, leaving the jury to fix such value upon the opinion expressed-as the intelligence and capacity of the witness to form it will warrant.</p> <p>4. Former decisions. The case of Van Horn v. Keenan, 28 Ill. 449, is not, nor was it intended to be, decisive of this question.</p> <p>5. Same—of testamentary capacity—what will be considered. A testator possesses testamentary capacity¡ within the meaning of the law, when he has an understanding of the nature of the business in which he is engaged, of the kind and value of the property devised, and of the persons who were the natural objects of Ms bounty, and of the manner in which he desires it to be distributed, unless affected with some morbid and insane delusion as to some one of those natural objects of his bounty.</p> <p>6. Wills—formalities in execution of—a question of law. The question whether a will has been executed with all the proper formalities, is one of law, and not of fact which a jury can consider.</p> <p>7. Instructions—must be concise—and not present am argument of the case. An instruction wMch has incorporated into it an argument of the case, and extended to great length, is objectionable. Instructions should be concise, and briefly state the point of law on wMch the party relies.</p> <p>8. Evidence — concerning undue influence—nature of defined. On the question of undue influence exercised to obtain the execution of a will, the rule is, that the influence must be of such a nature as to deprive the testator of Ms free agency.</p> <p>9. Same—allegation of undue influence—burden of proof on the pa/rty asserting it. The allegation of undue influence is tantamount to that of fraud, and like it, the burden of proving such fact rests upon the party alleging it.</p>

<p>Appeal from the Court of Common Pleas of the city of Aurora, Kane county; the Hon. Richard G. Montony, Judge, presiding.</p>

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