Volume 46 — Illinois Reports

Appeal, from the Circuit Court of Woodford County; the Hon. S. L. Richmond, Judge, presiding. This was a proceeding originally commenced before a Justice of the Peace of Woodford county, for the violation of a certain ordinance of the town of Minonk, and appealed to the Circuit Court.' In each.of the courts below, the appellant was found guilty, and a fine imposed; and he now brings the case to this court by appeal.

<p>1. • Limitation on Actions—seven years limitation act—when party claiming under may show diffei-ent titles. Where in an action of ejectment, the defendant proved possession of the premises, under color of title and payment of taxes for seven successive years, it is no objection, that, before the expiration of the. limitation, he acquired the title of another to the premises, no connection by the plaintiff with such subsequent title being shown. Mor, as to the payments of taxes, made by him after the acquisition of such title, will he be held to have made such payments under the subsequently acquired title.</p>

<p>1. Lease—executed by a guardian—no implied covenants in. A as the guardian of B executed a lease of certain premises to 0 and afterwards A was removed and one D appointed in his stead, who evicted C from the premises, and thereupon C brought an action of covenant against A on the words, “ demised and leased” contained in the lease: Held, that in such a lease there are no implied covenants; and there being no express covenants contained in the lease, A. could not be held liable.</p> <p>2. Deeds—by officers and agents of the law—where there are no express covenants— not liable. Where a deed is made by an officer or agent of the law, which contains no express covenants, and which simply purports to be, and is, but the mere execution of a power conferred by statute, and in which the grantor does not assume to have, or convey, any title of his own, no implied covenant arises upon which such officer or agent can be held liable.</p>

Joseph E. Gary, Judge, presiding. Joseph Saunders filed his petition for a mechanic’s lien in the Superior Court of Chicago, against John J. Schwartz and wife. On the trial the jury found in favor of the petitioner, and assessed his damages at $2,094.84. A motion for a new ■i trial being overruled, a decree of sale was rendered in accordance with the verdict. The defendants brought the case to this Court by appeal. The facts are sufficiently stated in the opinion.

<p>1. Pleading at law—of the isms'—need not be lajeen as to mere recitals in a plea. It is not necessary, that a traverse should be made as to matter set up in a plea by way of mere recital. .</p> <p>2. Partnership—one partner may mortgage and give possession of partnership effects to secure firm creditors. One of the .partners of a firm may mortgage the partnership stock in trade, and deliver possession thereof, to secure a firm creditor.</p> <p>3. Mortgage—of chattels in possession—when may hold against junior lien. A bona fide mortgagee of chattels, in possession, and so entitled by the terms of his mortgage, cannot be deprived of his property thus acquired, under any junior lien.</p>

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

<p>1. Practice—court may amend record of cause after judgment and during term. During the term of court at which a judgment is entered, the court, of its own motion, may afterwards, make such amendments of the record of the cause, as it may think proper, and the justice of the case requires.</p> <p>2. Partnership—interpretation of a particular agreement. A & B of the one part, and C. D. E. & F. of the other, made an agreement in writing, whereby A & B sold to 0 the exclusive right to manufacture and sell a certain article secured by letters patent, together with all the stock and fixtures then on hand pertaining to the business, in consideration that thirty-seven and one-half per cent, of the net profits realized should be paid to them; and in order that profits might arise out of it, D E & F were to furnish §16,000 as capital for carrying on the same; A &B agreeing that they would neither make nor sell the said article, nor in anywise interfere with the management of the business, which was agreed should be left exclusively with 0 as superintendent, who was to receive a certain stipulated compensation for his services, the party of the second part guaranteeing to A & B the payment of said per cent., after all expenses should be paid, such expenses to include 20 per cent, on the capital furnished by D E & F , to be paid to them for the use of the money, and which capital it was agreed they might at any time withdraw, with the consent of C. Held, that this agreement did not constitute a partnership between A & B and the other parties.</p> <p>3. Same—conceding one existed—rights and liabilities of the parties between themselves and as to third persons. Conceding a partnership to have existed, the withdrawal of the capital furnished, with the consent of C effected a dissolution of the firm. D. E & F could not be held liable on a note executed by 0 as superintendent of the concern, ten days after they had with 0’s consent, withdrawn the capital paid in by them; under the agreement, the giving of a note was not within the scope of his authority.</p> <p>4. The person receiving such note, having inspected this agreement prior to taking it, was chargeable with notice that C was thereby acting without authority, and also, of the dissolution of the firm, by putting him on inquiry as to it.</p> <p>5. To charge the parties so withdrawing from the concern, with the payment of the note, it must be shown, that the funds received, for which the note was given, were used in payment of the firm debts, incurred prior to their retirement.</p> <p>6. If the partnership were not dissolved by the withdrawal of the capital, the fact, that C at the time of the execution of the note, also executed to the same party a bill of sale of all the property belonging to the concern and of which he took immediate possession, worked a dissolution of the firm.</p> <p>Í. If these parties were to be held liable on such note, they would be entitled to a credit thereon to the amount of the real value of the assets conveyed by 0.</p>

<p>1. Assessments—-for what cause will be deemed void. An .order for an assessment, which requires the entire estimated cost of the proposed improvement to be assessed on the real estate deemed benefited thereby, absolutely, and without its being shown that there was any real estate which would be specially benefited to that extent, over and above the city at large, is void.</p> <p>2. Same—property assessed—must be shown to be specially benefited. Under such an order, property benefited in any degree, would be liable to be taxed, much beyond the extent of the benefit conferred, there being no proof that any property would be specially benefited to the extent of the entire damages and costs.</p> <p>3. Former Decisions—constitutionality of special assessments. The cases of The City of Chicago v. Larned, 34 Ill. 203; The Caned Trustees v. City of Chicago., 12 ib. 406; and others, decided in this court, must be regarded as having settled the question affirmatively, as to the constitutionality of the power to make these special assessments.</p>

<p>1 Evidence—parol—inadmissible to vary the terms of a written instrument. In an action, on a promissory note, where the defendant pleaded a verbal agreement made with the payee, the plaintiff, at the time of making the note, that the payee would himself pay it at maturity -. Held, that such an agreement constituted no defense to the action, for if allowed to be proved, it would contradict the terms of the instrument.</p> <p>2. Same. It is a well established rule, that a written instrument cannot be altered, changed, or varied in its terms, by parol evidence.</p> <p>3. Same—what inadmissible—as varying terms of a written instrument.—In an action on a promissory note, proof that some person, other than the maker, was in fact the payor; or of an agreement-that the payee would never collect the note, or that he would pay it himself, is inadmissible, as contradictory of the terms of the instrument.</p> <p>4. Payment—what foots may he pleaded in proof of. Where in an action on ■ a promissory note, the defendant pleaded that when the note was given, the payee, plaintiff, had claims in his hands for collection, for defendant, and that plaintiff agreed that when he made such collections, the same should be applied in payment of the note, and that such collections had been made in amount sufficient to pay it: Held, that such plea was good as constituting a defense of payment, and that such facts might be given in evidence, either under a plea of payment, or perhaps under the general issue.</p>

This was an action of assumpsit, brought in the Superior Court of Chicago, by the appellee against the appellant, for services alleged to have been rendered by him as a traveling agent of appellant in soliciting business. The case was tried before the court, and a jury, who found a verdict for appellee for the sum of $1,245.84.

<p>1. New Trial—verdict against the evidence. Unless the verdict of the jury is manifestly against the evidence, it will not be disturbed. It is not sufficient, that the court would have hesitated to find such verdict, upon the evidence, to grant a new trial.</p>

This was an action of assumpsit, brought in the Superior Court of Chicago, by the appellees, John Stephani and Jacob Stephani, against Frederick Yoltz and Philip Schaffner, appel-, lants, to recover for a bill of goods alleged to have been sold by them to appellants. The case was tried before a jury, who found a verdict for the plaintiffs.

Writ of error to the Circuit Court of Marshall county; the Hon. Samuel L. Richmond, Judge, presiding. This was an action of assumpsit, brought in the court below, by the plaintiff in error, as assignee of certain promissory notes, against the defendant in error, the assignor. The process was sent from Marshall to LaSalle county, and served upon the ‘defendant. The defendant filed his plea in abatement to the jurisdiction of the court.

<p>1. Wills—acknowledgment of by testator—need not be in language. The statute does not require that the acknowledgment of a will by the testator, shall be in language. Any act, which indicates the same thing with unmistakable certainty, is sufficient.</p> <p>2. Same—what acts a sufficient acknowledgment—attesting witnesses need not see the testator sign. It is not necessary, that the attesting witnesses to a will should actually see the testator sign it; it is a sufficient acknowledgment of it by him, where, in the hearing of the testator and the witnesses, the attesting clause is read, reciting that he had executed the instrument as his will, and the testator thereupon, handed the subscribing witnesses the pen, and saw them sign as such, although the testator uttered not a word during the whole time the witnesses were present. o</p> <p>3. Same—the substance to be considered—rather than the form. In matters of this character, clear and explicit acts are to be regarded, rather than mere form.</p> <p>4. Same—before admitted to probate—proof of sanity of testator must be made. Our. statute requires, that before a will can be admitted to probate, the subscribing witnesses shall swear they believe the testator to have been of sound mind and memory, at the time of the execution thereof.'</p> <p>5. . Same—proof of soundness of mind indispensable. When a witness testified, that “he did not know, whether the testator was of sound mind or not—that he might have been or might notHeld, that the -proof was defective. That although a witness might not be able to swear positively and as a matter of fact, what the condition of the testator’s mind was, yet, he undoubtedly had an opinion on this point, and this opinion, or belief of the witness, the law requires, as indispensable to probate.</p>

<p>1. New Trial—verdict against the evidence. The rule is well established, that where the verdict of the jury is manifestly against the evidence considered as a whole, a new trial will be granted.</p>

<p>Appeal from the County Court of LaSalle County; the Hon. P. K. Leland, Judge, presiding.</p> <p>The facts are stated in the opinion.</p>

Writ of Error to the Circuit court of LaSalle county ; the Hon. M. E. Hollister, Judge, presiding. The facts in this case are sufficiently stated in the opinion.

<p>Appeal from the Circuit Court of Henry county; the Hon. Tea. O. Wilkinson, Judge, presiding.</p> <p>The facts in this case are stated in the opinion.</p>

<p>1. Witnesses-—weight given to testimony of. In determining the weight of testimony between two witnesses, the .preponderance should be -given to the one whose advantages for being correctly informed as to the matters in controversy are the best.</p> <p>2. Same.—credibility of. A jury cannot wilfully, or from mere caprice, disregard the testimony of an unimpeached witness. While they may judge of the credibility of a witness, they must exercise their judgment while doing so, and not their will merely.</p> <p>3. New Trial—verdict against the evidence. Where there is a strong preponderance over that, on which a verdict is based, such verdict will be set aside, and especially so, when it appears that injustice has been done.</p> <p>4. Negligence—where plaintiffs negligence concurs in producing injury. In an action for negligence, where the facts proved show great negligence on the part of the plaintiff, the proper question to be submitted to the jury is, did plaintiff’s negligence materially contribute to the injury, or rather was it so slight, and that of defendant so gross in comparison, as to incline the balance in plaintiff’s favor and entitle him to a verdict.</p> <p>6. Same—concerning carelessness of persons in crossing a railroad trade. It is the duty of every person about to cross a railroad track, to approach it cautiously and ascertain if there is danger in crossing, as all such persons are bound to know that such an undertaking is dangerous, and they must take all proper precaution to avoid accidents in so doing, otherwise, they cannot recover for an injury thereby received. Both parties must use care.</p> <p>6. Evidence—positive evidence when entitled to more weight than negative. It is an established rule, that positive evidence as to any fact not improbable in itself, is entitled to more weight, than negative evidence in relation to such fact.</p> <p>7. Negligence—comparative—doctrine of—modified. In the case of C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 255 ; Same v. Hazzard, 26 ib. 373, and Galena & C. U. R. R. Co. v. Jacobs, 20 ib. 478, the doctrine of comparative negligence, is somewhat modified, from that announced in the cases of Aurora Branch R. R. Co. v. Grimes, 13 Ill. 585 ; Dyer v. Talcott, 16 ib. 300; Galena & C. U. R. R. Co. v. Fay, 16 ib. 558, and C. B. & Q. R. R. Co. v. George, 19 ib. 510.</p> <p>8. Same.—comparative—doctrine of—how established. The doctrine of compar ative negligence as established by this court is, that there must be fault on the part of the defendant, and no Want of ordinary care on the part of the plaintiff; and when both parties are at fault, the plaintiff may in some cases recover, as, where it appears that bis negligence is slight and that of the defendant gross.</p> <p>9. Same—where plaintiffs negligence concurred—when he may recover. And this rule holds, even where the slight negligence of the plaintiff in some degree contributed to the injury. If the defendant has been guilty of a higher degree of negligence, slight negligence on the part of the plaintiff, does not absolve the defendant from the use of all reasonable efforts to avoid the injury.</p> <p>10. Same—railroad crossings in populous cities—greater vigilance required of persons attempting to cross.' Where railways cross public streets on the same level, greater vigilance is demanded by persons attempting to cross them, than will be required where the crossing is over a country road. What precautions taken, will be considered sufficienti-^ Quere.</p> <p>11, S.&aiE-’-care and diligence required on the part of all parties. Persons attempting to cross a railroad track, as well as those engaged in the running of trains, must exercise all proper care and diligence, and use every reasonable means to prevent accidents.to life ^nd property, their rights, as well as their, obligations to each other, being mptual.</p> <p>12. $¡vidence,—admissibility of. In an action for negligence against a railroad company, the plaintiff introduced in evidence certain rules of 'the company, for running its trains, among which was the following: “a red flag by day, or .a red light by night, waved upon the track, signifies that the train must come to a full stop,” whereupon the defendant offered to prove, that such rule did not apply as tq the signals used within the corporate limits of the city, where the injury happened} to plaintiff, but that other and different signals were employed, which proofs the court excluded; Held, that such evidence was proper, and should have been admitted, for the purpose of determining the question as to whether the defendant was chargeable with negligence, by reason of the disobedience by its employees of the proper signals.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Madison E. Hollister, Judge, presiding.</p> <p>The facts are stated in the opinion.</p>

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

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

Erastus S. Williams, Judge, presiding. This was a hill in chancery filed in the Circuit Court of Cook county, by the appellees, Caspar Pfeiffer, trustee, etc., Catherine Weber and John C. Weber, against the appellants, ¡Nathaniel Douglas, George T. De ¡Roe and John Y. Le Moyne, to remove a cloud from the title to certain real estate, occasioned by a trust deed given to secure the payment of a certain note for the sum of $800.00, payable to said George T. De Poe, said Le…

Benjamin B. Sheldon, Judge, presiding. - This was a claim filed in the County Court of Stephenson county, by Sarah A. Wright, against the estate of Chancellor Martin, deceased. The claim was allowed. The administrator appealed to the Circuit Court. The case was tried by a jury, and verdict rendered in favor of claimant for $500.

<p>1. New trial—verdict—where the evidence is conflicting. In eases where the testimony is conflicting, the verdict of a jury will not be disturbed, unless it is so manifestly against the weight of evidence as to compel the inference that they were influenced by passion, prejudice or partiality, or did not comprehend the case.</p> <p>2. Petit jury—their province. In trials by jury, the weight of testimony is to be decided by them, according as it preponderates.</p> <p>3. Assumpsit—waiver of tort. The rule is well settled, that a party whose property has been taken from him tortiously, or unlawfully detained from him, whereby an action of trespass or trover has accrued, may, if the wrong-doer sell the property and receive the money, waive the tort, affirm the sale and sue in assumpsit for the price actually received.</p> <p>4. Same—concerning proof of price received—how made and determined. In an action of assumpsit- to recover the proceeds of the sale of property tortiously taken from the plaintiff, the fact, whether or not the defendant received the money, need not be proved beyond all doubt; it is sufficient, if the testimony creates a reasonable presumption that the defendant did receive the proceeds, and like all other facts, must be determined on the weight of evidence.</p> <p>5. Instructions—when complained of—the record must contain all the instructions given on both sides. When a party assigns for error certain instructions given on behalf of the appellee, and the record fails to disclose those given for the appellant, such assignment of error will not be considered, as this court cannot determine the true situation of the case as presented on the instructions given.</p> <p>6. New trial—will not be awarded, when it appears substantial justice, has been done. When it appears from the whole record that substantial justice has been done, this court will not award a new trial.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. Samuel L. Richmond, Judge, presiding.</p> <p>The opinion states the case,</p>

Writ of Error to the Circuit Court of He Kalb county; the Hon. Theodore H. Murphy, Judge, presiding. This was a bill in chancery, filed by Thomas Hale, the defendant in error, in the He Kalb Circuit Court, to restrain the sheriff of that county from • selling certain lands under an execution. Answers and replications being filed, and the cause coming on for hearing, a decree was rendered setting aside the levy, &c., and making the injunction perpetual.

<p>Witnesses—credibility—instructions. If there is no evidence in a case tending to corroborate a witness, it is not error for the court to instruct the jury that, if they believe from the evidence that a witness has willfully sworn falsely upon any material point, they have the right to disregard his entire testimony.</p>

John S. Thompson, Judge, presiding. This was a bill in chancery, filed by the appellant in the court below, against the appellee and others, to compel a specific performance of a certain contract made by appellee, with Holloway and Boggess, for the conveyance to the last named parties, of a tax title held by him, to the S. W. ¿ of section 33 in township 8, north of range 1, west of the 4th P. M., lying in Warren county. The facts in the case are. fully stated in the opinion.

<p>1. Instructions—must embrace the issues presented by the proofs. In a suit for a divorce, upon the ground of extreme and repeated cruelty, where the main issue presented by the proof was, whether the complainant had been guilty of like conduct, or of conduct which provoked the acts charged, it was error for the court to instruct the jury, “that if they find that the defendant has been guilty of extreme and repeated cruelty, they should find for complainant,” as such an instruction presents only a partial view of the case, and in the absence of any explanatory clause, wholly ignores the question presented by the evidence.</p> <p>2. Divorce—mere physical comfort—no ground for a divorce. And an instruction is equally erroneous which makes the right of the complainant, in a suit brought by the wife, to a verdict, depend on her mere physical comfort.</p> <p>3. Same—motive for violence done—a material subject of examination. In such case, it was error for the court to instruct the jury, “that "where violence is used, it is immaterial what the motive was.” The motive is a most material subject of examination. No court will dissolve the marriage tie at the prayer of the wife, because of violence provoked by her own misconduct, even though such violence should proceed to blows.</p> <p>4. Same—no degree of provocation will excuse a blow given in a mode to endanger life or limb—except in what case. Where a blow is given in a mode to endanger life, or cause a serious bodily injury, unless given in strict defense of life or limb, no degree of provocation can excuse the act.</p> <p>6. Witness—concerning impeachment of. Where a person", on her examination as a witness, swore to certain facts, and to impeach her testimony an affidavit was introduced made by her previous to her examination on the trial, in which she swore to a state of facts totally opposed to her testimony, it was error for the court to instruct the jury, evidence having been introduced to show that she did not comprehend the statements of the affidavit, that, if the witness did not understand the whole import of the facts stated "in the' affidavit, they were to give it no effect; because the rule is, if the witness swore knowingly to any one statement in the affidavit, and testified differently concerning the same matter, to such extent her testimony was impeached.</p> <p>6. Divorce—concerning defenses to suit for—when conspiracy is charged—a failure to sustain—incurs no peril. Where a defendant in a suit for a divorce, charges the complainant with .having conspired with other members of her family to procure the divorce, as a means of obtaining money from him by way of alimony, the failure to sustain such charge of conspiracy constitutes no additional act of indignity, to be taken into account by a jury in rendering their verdict.</p> <p>1. . Alimony—in what casts—the allowance of property absolutely—will not be sanctioned. Where the property of the husband was accumulated by him before marriage, and the wife brought no property to him upon the marriage, it would .be unjust to decree to her as alimony, after decree of divorce pronounced, a large amount of the husband’s property, absolutely.</p> <p>8. Same—what considered the better practice in such case. In such case, the alimony should be left in snch shape that'it can be reduced, or withdrawn, in case the wife should misconduct herself, and the statute evidently contemplated an allowance to be paid at stated intervals for the wife’s support, which, in the present case, is regarded as the better practice; there being no difficulty in making the payment of such allowance secure.</p> <p>9. Verdict—should embrace.a finding upon each issue raisedby the pleadings and proof. In cases of this character, it would tend to promote justice, and greatly aid the court in its decree, if the jury were instructed to find upon each issue-raised by the pleadings and proof, instead of finding a general verdict.</p>

M. E. Hollister, Judge, presiding. This was an action of a'ssumpsit, brought by Henry Hayes against Cushman & Torce, in the Circuit Court of LaSalle county, on the following instrument: “February 9, 1860. “We hereby agree to store ear corn for Henry Hayes till the first of June next, for three cents per bushel; two cents for shelling ■; and receiving 75 pounds and deliver 58 pounds.

This was a hill in chancery, filed by the appellee in the court below, against the appellant, to restrain the removal of a carpenter shop off certain premises which had been previously mortgaged by appellant to one Aaron Gibbs.

Writ of Error to the County Court of LaSalle county; the Hon. P. K. Lelatto, Judge, presiding. The facts in this case are sufficiently stated in the opinion.

<p>1. Administrator's sale of real estate to pat debts—notice of application for order of court. In determining the sufficiency of a notice of an administrator of ■ his intention to apply for an order to sell real estate to pay debts, courts will consider whether a reasonable person, in the exercise of his ordinary faculties, on reading the notice, would be apprised by it, in what court, and at what time the petition would be presented.</p> <p>2. Where a notice specifics that the administrator “will apply at the December term of the County Court, of the county of Mercer, State of Illinois, for an order,” &c, and the notice bears date “Sept. 6,1862,” it will be presumed that the application would be made at the December term, A. D., 1862, of said court, although the year in which the term was to be held, is not specifically stated.</p> <p>8. It is' not necessary that the notice should specify the day of the term when the application will be made.</p> <p>4. If no specific day is named in the notice when the petition will be presented, and the heirs wish to resist the application, they can take a rule on the administrator to file his petition by a certain day, if they are inconvenienced by his delay.</p> <p>6. Same—printer's certificate. An objection to a printer’s certificate of publication of a notice for an application to sell real estate, cannot be raised in a collateral proceeding.</p> <p>6. Titles—will not be overturned, on 'mere technical grounds. Courts will not overturn titles acquired in good faith, on mere technical objections.</p>

<p>1. Pleadings—of the declaration—unnecessary allegations rejected as surplusage. Where a count in the declaration described the plaintiff as an executrix, but was not on a liability to her as such, the action being brought to enforce a contract made with her in her individual capacity, such words of description can be rejected as surplusage.</p> <p>2. Tender—party accepting of—when not concluded by. Where a party accepts of a tender, if it be not accepted in full of all demands, such acceptance will not conclude him from proceeding for more.</p> <p>3. Time—proper mode of computing—instruments to take effect from a specified day named therein. The rule adopted by this court for the computation of time, where an instrument is to take effect from a particular day, is to exclude the day named therein, and include the day assigned for its termination. And this rule applies to a notice given to terminate a tenancy.</p> <p>4. Landlord and Tenant—tenant from year to year—consequences of parly holding over. Where a tenant under a lease from year to year, is notified by his landlord before the expiration of his term, that if he occupies the premises another year, he must pay a certain increased rent, and the tenant holds over, such act will be construed as an implied agreement that he shall hold the premises upon the new terms imposed.</p> <p>6. Former Decisions. The following cases are cited as sustaining this doctrine: Prickett v. Ritter, 16 Ill. 97; McKinney v. Peck, 28 ib. 178.</p> <p>6. Landlord and Tenant—relation, not changed by tenant holding over. And in such case where the tenant continues in possession after notice imposing new terms, such act of holding over after the expiration of his. term, paying rent, in no wise changes the relation between the parties of landlord and tenant, and an action for use and occupation upon the new terms, will lie.</p> <p>7. Former Decisions. The ease of Dudding v. Hill, 15 Ill. 61 and McNair v. Schwartz, 16 ib. 24, are not in conflict with this doctrine.</p>

<p>1. Release of Errors—acceptance of money wider a decree. A party cannot avail himself of that portion of a decree which is favorable to him, and secure its fruits, and then reverse in an appellate court such portions as militate against him. If a decree is to be reversed, the parties should be placed in statu, quo.</p> <p>2. Lease—by mortgagee in possession is terminatedby redemption. A lease made by a mortgagee in possession is necessarily terminated by a redemption of the mortgage, unless there has been some express or implied authority from the mortgagor to lease for a given time.</p> <p>3. If the mortgagee has been let into possession, and makes a lease, and at a subsequent period all the parties-are before the court of chancery, the court would not direct the delivery of possession at a time that would work great hardship to the lessee.</p>

Charles H. Wood, Judge, presiding. This was an action of assumpsit, commenced by Robert L. Hannaman against Thomas and Asa Demoss, on a promissory note, dated September 27,1864, for $1000, due one day. after date, on which several payments were made. A jury being waived, the case was tried by the court, and judgment rendered in favor of the plaintiff, for $271 74-100. The defendants brought the case to this court by appeal.

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

<p>1. Postponement of trial—of the rights of parties. When, during the pendency of a trial, the defendant dies, and a scire facias issues to the widow and heirs, and they appear and defend, and after the death of the defendant, the plaintiffs file a new declaration, a postponement, granting leave to the defendants to plead to the new declaration, and present additional testimony, was in aid of justice in the new aspect of the case.</p> <p>2. Evidence—of refreshing a witness’ recollection. A witness can testify only to such facts as are within his own knowledge and recollection, though he is allowed to refresh and assist his memory by the use of a written instrument, memorandum or entry in a book; but after inspecting the writing, he must be able to speak to the facts from his own recollection.</p> <p>3. Limitation act of 1839—what constitutes color of title. All that is necessary under the act of 1839, is, that the instrument relied on as color of title, ■ shall purport on its face to convey title to the grantee.</p> <p>4. So that a party who is defending his possession under claim and color of . title, need not resort to the most remote link in the chain of title under which he claims, but it is enough if he commences to deduce his color of title from any intervening deed, which was executed prior to the commencement of the seven years, during which he expects to show possession and payment of taxes.</p> <p>6. Where a party holding color of title to land, sells the same and receives the purchase money, and executes the deed to the purchaser by a wrong name, the deed being intended for the purchaser, and he receiving it as his deed, and entering into possession under it, such deed will be color of title to the purchaser, though in a wrong name.</p> <p>6. But if there is no such person as the one named as grantee in the deed, then the legal title will not pass out of the vendor, but will be held by him as. trustee for his vendee, and a payment of taxes by the latter, as the cestui que trust will be regarded as a payment under that title and in protection thereof</p> <p>I. Same—of the payment of taxes—and the evidence thereof. Under the act of 1839, the important question is, were the taxes duly paid, and by the person claiming title, or by some person for him, it being sufficient to show the fact by such evidence as will satisfy a jury trying the case.</p> <p>8. A receipt, unless coupled with a contract, is only prima facie evidence, and may be rebutted or explained by parol.</p> <p>9. So where a tax receipt is alleged to be signed by a person not having an official character, it is proper to show by parol, that the receipt was given in good faith on the payment of the taxes, and by a person connected with the collection of the revenue, and duly credited on the collector’s bo'oks.</p> <p>10. And if the receipt mis-describe the premises upon which the taxes were intended to be paid, such mis-description may be so explained by parol, as to show what premises were intended to be embraced in the receipt.</p> <p>II. And erasures and alterations appearing on the face of the receipt, may be shown to have been made by the person giving it, and under circumstances which rebut any allegations of fraud on the part of the holder.</p> <p>12. So, too, if the receipt does not specify the year for which the taxes were paid, such omission may be supplied by parol evidence.</p> <p>13. Where a party claims under color of title, the statute requires the payment of all taxes “legally assessed” upon the premises, for seven successive years, and the omission to pay them for any one year will not be excused because of some technical defect in the assessment for that year, which would have vitiated it if the question had been made.</p> <p>14. The proper construction of the statute in that regard is, that there must be, in all cases, an actual payment of taxes for seven successive years, and when this is shown, the purpose of the statute is answered, even though it may appear, that for some of those years, or for all of them, the assessment was illegal.</p> <p>15. Though in a case where a party shows an actual payment of taxes for seven successive years,, but during one or more of the years he had left a part of the tax, as for example, the road tax,- unpaid, on the ground it was illegally assessed, perhaps he might claim the benefit of the phrase “legally assessed,” and that by paying all other taxes, he is within both the letter and the spirit of the statute; but when he shows that he has paid none of them, on the plea that they were illegally assessed, he cannot claim to be within its spirit.</p> <p>16. Limitation act of 1835—-of its construction. The act of 1839 was designed to protect a different grade of title from that embraced in the act of 1835 ; and while mere color of title would be sufficient under the former, something more would be required under the latter; the act of 1835 requires a prima facie title.</p> <p>11. So where a defendant in ejectment deduces title from a tax deed, but failed to produce the judgment and precept upon which it was based, while the tax deed is color of title, and as such sufficient under the act of 1839, it is not, without the judgment and precept, a prima facie title, such as is required by the act of 1835.</p> <p>18. Former decisions. The case of Irving v. Brownell, 11 Ill. 402, giving a different construction to both those acts, was overruled by the case of Woodward v. Blanchard, 16 ib. 426, not only upon the construction given to the act of 1839, but also upon that given to the act of 1835.</p> <p>19. Tax title—of the judgment and prior proceedings. It has been held, and is the settled rule in this State, that a judgment for taxes, in which the amount of the taxes does not appear, either by the use of apt words, or of the recognized dollar mark, cannot be sustained.</p> <p>20. But this rule does not apply to the want of a word or a character to the numerals to indicate the amount of taxes due, as a defect to anything prior to the application of the collector for a judgment against delinquent lands.</p> <p>21. So the want of the dollar mark in the assessment roll, to designate the amount of the valuation or the taxes, will not render the assessment, or the col. lector’s warrant, invalid and illegal.</p>

<p>Writ of Error to the Circuit Court of Kane county; the Hon. I. G. Wins on, Judge, presiding.</p> <p>The facts appear in the opinion.</p>

Benjamin R. Sheldon, Judge, presiding. This was a bill in chancery, filed by George Thompson, the appellee, against William Ennor, the appellant, William B. Green and William Fiddick, in the Oircuit Court of Jo Daviess county. The land in controversy is described as the éast half of the north-east quarter of section 85, town. 29, north range 1 east, and was claimed in fee and as a homestead.

<p>1. Contract.—one party may waive his 'own, and adopt the version of the otherir of its terms. In a contract for the sale of a quantity of coal tar, the parties, in a subsequent conversation, admitted that a contract had been made, and agreed ais to the terms and, price to be paid, but disagreed as to the quantity ; the plaintiff claiming that he had bought 2,500 barrels, and the defendant insisting. that he had only sold 1,000. Before the time for the performance had expired, the plaintiff accepted the defendant’s version of the contract, tendered the money, and demanded the 1,000 barrels: JMd, that the plaintiff had the right to waive' his claim to the larger quantity, and to'hold the defendant to his own statement of the contract.</p> <p>2. When the defendant’s own views of his rights and liabilities have been acceded to, he should not be allowed to give the different understanding of the plaintiff as a reason for being excused from performance.</p> <p>3. When a plaintiff comes into court for the assertion of Ms legal rights, the defendant cannot complain because those rights are asked to be determined according to his own views.</p>

Ebastus S. Williams, Judge, presiding. This was a proceeding instituted by Frances B. Hicholl, the appellee, in the Circuit Court of Cook county, against Hary E. Whiting, the appellant, to recover dower in land owned by her, situated in that county, and a decree having been entered in favor of the appellee’s right of dower, an appeal was taken. by the defendant to this court.

<p>1. Agent—power of to convey land. A party may by letter authorise amotbeif to make a contract for the sale of real estate.</p> <p>2. A power to convey land must be in writing, and of equal dignity with the deed to be executed.</p> <p>3. An agent is not authorized by a letter not under seal to make a d.eed for his principal.</p> <p>4. A person purchasing, of an agent is bound at Ms peril to see the authority of the agent before he purchases.</p>

<p>1. Evidence—wHiten contracts cannot be varied by parol. Parol evidence is not admissible to vary, contradict, strike out, add to or explain a written eontract.</p> <p>2. Contracts—cannot rest partly inwriting andpartly inparol. An agreement cannot rest partly in. writing and partly in.parol.</p> <p>3. Same—sales—place of ddiveiy. The 12th section of the chapter entitled “negotiable instruments,” declares that where the maker of an instrument of' writing for the delivery of articles of personal property, specifies no particular place of delivery, it shall be lawful for the maker to tender, them on the day mentioned in the writing, where the obligee or payee resided when the agreement was entered into ; but if the articles are too' ponderous to be easily moved, or if the obligee or payee had not, at the time of executing the writing, a known place of residence in the county where the maker resides, then the maker may tender them at the place where he himself resided at the time of its execution.</p> <p>4. It is error for the court to instruct the jury that the purchaser should neither have a place of residence or business in the county, at the time of making the agreement, before the seller could tender the articles to be delivered at his own place of residence. The statute referred to has said nothing about a place of bus'mess, it only speaks of place of residence.</p> <p>6. Evidence—when parol may be introduced in reference to a written contract. It is a rule of uniform application, that parol or other extrinsic evidence, may he resorted to for the purpose of identifying the property sold. This evidence does not infringe upon the rule that a written agreement cannot be contradicted, enlarged or varied by parol.</p> <p>6. When a contract on its face seems to be explicit and certain, but is rendered uncertain by extrinsic evidence, then it may be explained by the same character of testimony by which the uncertainty was created.</p> <p>1. Where the uncertainty appears from the instrument itself, it cannot be explained by parol evidence.</p>

Writ of Error to the Court of Common Pleas of the city of Aurora, Kendall county. This was a suit in chancery, instituted by the plaintiffs in error, against the defendants in error, in the Circuit Court of Kendall county, and by consent, the venue was changed to the Court of Common Pleas of the city of Aurora. The case was heard at the March term A. D., 1866, of that court. The injunction was dissolved, and the bill dismissed at the cost of the complainants.

Ira O. Wilkinson, Judge, presiding. This was an action of assumpsit, brought by John Emery against E. C. Hoyt, conservator of Samuel Reynolds, to recover the amount of a promissory note executed by Samuel Reynolds, for §1,000, bearing date, April 24th, 1866. The defendant filed a plea of non assumpsit. The parties stipulated that the defendant might give in evidence, under the general issue, any fact which he could under any plea properly pleaded.

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

<p>1. Former adjudication-parties are bound by. Parties to a suit, in a court of competent jurisdiction, where they labor under no disability, are bound by the determination of their rights, if fairly before the tribunal.</p> <p>2. Where the rights of parties have been once adjudicated in a court having jurisdiction, they cannot be again litigated in the same or other courts.</p> <p>3. The object in making a person a party to a suit, is to enable him to be heard, and to assert his rights, and if he fails to set" them up, that he may be concluded from again litigating them.</p> <p>4. Same—Homestead-—when it must be claimed. In a proceeding for partition by heirs, the widow was made a party, the partition alleged that she was entitled to dower, and the court adjudged it to her. Commissioners were appointed to assign dower; they reported that it could not be done, and the court therefore decreed her a yearly allowance in lien of dower, and made it a lien upon the lands. The lands were sold under the partition proceedings, subject to the payment of the annuity. The widow made no claim of homestead. It was held that she could not afterward set up the homestead right against the purchaser under the partition sale.</p> <p>5. Where an unmarried woman, the head of a family, capable of releasing the homestead, and occupying it, fails to assert the right, when a court is called upon to pass upon it, in a suit in which she is a party, she will be concluded.</p> <p>6. When a person, not under a disability, is sued, and the homestead is involved, it will be affected by any neglect to assert it, precisely as any other right.</p> <p>T. Where a husband and wife are made parties to a suit, and they are enti- . titled to homestead rights, and they are not relied upon, the wife is not concluded from asserting the right. And, inasmuch as she cannot sue alone for the right, it may be asserted by the husband and wife, notwithstanding 'the decree or judgment.</p> <p>8. This exception grows out of the statute • conferring the right, which declares that the husband alone cannot release the right, but that he must be joined by the wife.</p> <p>9. After the death of the husband, the widow, being under no disability, may abandon the homestead precisely as could the husband.</p> <p>10. If .from sickness, or other necessary cause, the widow leaves the homestead temporarily with the intention of again returning, the right would not thereby be affected.</p> <p>11. A person cannot have two homesteads at the same time, both exempt, nor can he have two, either of which, at his election, would be exempt.</p>

<p>Writ of Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>The facts in the case fully appear in the opinion.</p>

<p>1. Judgments by confession—motion to vacate—exceptions, when, to be taken. . Where a motion is made for an order to stay execution on a judgment by confession, and for leave to plead to the merits, and both parties are present in court when the motion is sustained, and no objection is made as to the time when the motion was interposed, and no exceptions taken, the objection cannot be raised in the supreme court.</p> <p>2. If no exceptions are taken to the action of the court below in staying execution, and letting the defendant in to plead to the merits, this court will presume that sufficient grounds appeared for the action of that court.</p> <p>3. Pleading—averment of endorsement of a note. Where a declaration avers that a note was assigned after due, the court will presume that the assignment was on the note, and not on a separate piece of paper.</p> <p>4. Same—pleading must -be construed, most strongly against the pleader. The court recognize the doctrine that a plea must be taken most strongly against the pleader, and if an allegation in it be equivocal, or presents two meanings, the one should be adopted most unfavorable to the pleader.</p> <p>6. Judgments—form of. Where a defendant has been let in to plead to the merits in a judgment by confession, and the original judgment remained in force as security for the amount really due, and the amount was reduced, it is proper for the court to direct that only the amount the jury found due should be collected on any execution which might be issued on that judgment.</p>

J. McRoberts, Judge, presiding. This was an action of ejectment, instituted in the Circuit Court of Will county, by Edmund S. Holbrook against Mathias L. Cook, and Ellen Eellows, afterwards intermarried with Charles Dickinson, was let in to defend as landlord. A trial resulted in a verdict and judgment for the defendant. The plaintiff brought the case to this court by appeal. The case was previously before the Supreme Court, and is reported in 38 Ill. 440.

<p>1. Landlord and tenant—distress for rent—liens. Under our law, the landlord has the lien and a right to distrain in all cases where the rent is certain, whether the right to distrain is reserved or not in the lease.</p> <p>2. This statutory lien in favor of the landlord is superior to other junior liens, and may be enforced against all but prior liens and bona fide purchasers, without notice.</p> <p>3. If the goods of a tenant are seized under execution or attachment, the landlord’s lien for rent is superior, and will hold the property.</p> <p>4. Same—assignment—rights of assignee. The rule of law is well settled, that an assignee, to whom property is transferred for the- payment of the assign- or’s debts, takes it as a volunteer, and subject to all liens to which it is then' liable. ■</p> <p>4. If liens exist upon the property when the assignment is made, they must be first discharged in the order of their priority and the remainder, thus freed from the liens, must then be applied according to the trust as disclosed in the deed of assignment.</p>

<p>Appeal from the Circuit Court of Stephenson County; the Hon. Benjamin R. Sheldon, Judge, presiding.</p> <p>The facts are stated in the opinion.</p>

<p>1. Parol evidence—to vary a contract. A written contractbetween partiesmust speak for itself. It cannot be enlarged or diminished in its terms, by parol evidence. A contract cannot rest partly in writing and partly in parol.</p> <p>2. Conveyances—ambiguity. Where the premises in a deed are so described that they cannot be identified, the conveyance is void.</p> <p>3. But where the grantee has gone into possession, and the parties have given a construction to their contract, by the manner in which they have executed it, the objection of uncertainty would be removed.</p> <p>4. If a vendor gives a bond for a deed for ten acres, part of one hundred and sixty acres, without any other designation of the particular portion, such a contract would be inoperative for want of certainty, nor could the purchaser, or a stranger to the contract, do any act by which the uncertainty could be aided or removed.</p> <p>6. Biit if the vendor and vendee were to select the number of acres, and separate them from the remainder, and the purchaser were permitted to enter into the same, malee improvements thereon, and to hold possession, the contract would thereby be so far executed as to remove the uncertainty, and a court of equity would compel the execution of a deed.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding This was a proceeding in chancery, by original bill, filed by the heirs of Edward A. Mulford, by their next friend, against the defendants in error, and others, to set aside conveyances of real estate, founded upon certain proceedings of the Cook county Circuit Court, on an application of Catharine Mulford, guardian of the plaintiff's in error, for a decree authorizing her to…

Writ of Error to the Circuit Court of Lee county ; the Hon. W. W. Heaton, Judge, presiding. This was a suit of chancery, commenced by the defendants in error in the Circuit Court of Lee county, against the plaintiff in error, and Josiah B. Williams.

Writ or Error to the Circuit Court of Coles county; the Hon. James Steele, Judge, presiding. The facts, so far as they relate to the points decided in the case, appear in the opinion.

Writ of Error, to the Circuit Court of Logan county; the Hon. John M. Scott, Judge, presiding. The facts in this case are sufficiently stated in the opinion of the court.

Silas L. Bryan, Judge, presiding. This was an action of ejectment, brought by Matthew McClurken against the widow and heirs of Thomas McClurken, deceased, in which there was a judgment against the plaintiff, who brings the cause here by appeal.

<p>The facts are fully stated in the opinion.</p>

Writ of Error to the Circuit Court of Mason connty; the Hon. Charles Turner, Judge, presiding. This was an action of assumpsit, brought by the plaintiff in error against the defendant in error, in the Mason county Circuit Court. A trial was had before the court, a jury being waived, and a judgment rendered against the plaintiffs for costs, to reverse which, the case is brought to this court by writ of error. The facts in the case are fully stated in the opinion.

<p>1. Exceptions—when necessary. The correctness of a decision of the Circuit Court upon a question of admissibility of evidence, not preserved by an exception taken in that court, will not be inquired into in the appellate court.</p> <p>2. Where it appears from the record, that no exception was taken to the" admission of the evidence complained of, such evidence will be regarded as legitimate and proper.</p> <p>3. License—when issued to a person other than the one making the application— who executes the bond in the name of such other party—without disclosing the fact— effect of. Where a person, named M. Nathan, applied for a license to keep a saloon, and had the same issued to N. Nathan, his wife, and signed the bond in her name, without disclosing the fact that the license was not for himself, or that the name so signed by him was not his own, and it appeared from the testimony of the clerk who issued the same, that he believed at the time he granted it, that it was for the husband; and the personal pronouns used in the bond and license, indicating the masculine gender: Held, that the license must be regarded as having been granted to the husband, and that he was bound thereby, the same as if he had given his note, or other obligation, by such name.</p>

Clair county; the Hon J. Gillespie, Judge presiding. This was a proceeding commenced in the Circuit Court of St. Clair county, for an alleged violation of the following city ordinances: Art. 1. Seo. 1 provides that no person shall engage in, or carry on, any business or calling thereinafter mentioned, without license. Sec. 2 provides that merchants shall pay $10 for each license for one year or five dollars for sis months.

Writ of Ebbob to the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding.- This was an action of assumpsit, brought by the plaintiff in error against the defendants in error, the board of supervisors of Hancock county, to recover the sum of $41 81, alleged to have been paid out by him, as county clerk of said county, for blanks and other stationery, for the use of his office as such clerk.

<p>Appeal from the Circuit Court of Peoria county; the Hon. Marion Williamson, Judge, presiding.</p> <p>The facts in this case are stated in the opinion of the court.</p>

.This was a proceeding in the name of the People, on the relation of “ The Illinois Institution for the Education of the Deaf and Dumb ” against Orlin H. Miner, auditor, on an application for mandamus. The points in the case are sufficiently stated in the opinion of the court.

Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward Y. Rice, Judge, presiding. The points raised in this case are sufficiently stated in the opinion of the court.

Writ of Error to the Circuit Court of Cumberland county; the Hon. Hiram B. Decius, Judge, presiding. This was a proceeding by scire facias, to revive a judgment obtained by the people upon a recognizance. Upon triál in the Court below, judgment was rendered against the defendants, who bring the cause to this Court by writ of error. The facts appear in the opinion of the Court.

This was an application for a writ of mandamus, in the name of the people, on the relation of Lorenzo Bull, against Orlin H. Miner, Auditor of Public Accounts. A statement of the case is sufficiently given in the opinion of the court.

<p>Appeal from the Circuit Court of Adams county; the Hon. Joseph Sibley, judge, presiding.</p> <p>The facts are' sufficiently stated in the opinion of the court.</p>

<p>Writ of Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>The facts are stated in the opinion of the court.</p>

This was a proceeding in the name of the People of the State of Illinois, on the relation of Charles Becker, against Orlin H. Miner, Auditor, on an application for mandamus. A statement of the case is fully given in the opinion of the court.

<p>1. License—not a tax, and may not be uniform. A license required by an ordinance of a municipal corporation, of all persons selling intoxicating liquors within the corporate limits, is not a tax in the constitutional sense of that term, compelling uniformity in that regard, but may be differential in its character, based upon the advantages of locality; but the ordinance must not discriminate as between persons having equal facilities for profit.</p> <p>2. Same—tender in payment of. A tender of the certificates of the police commissioners, whose office is created by law, and which provides that their certificates of indebtedness shall be receivable in payment of all city taxes, in payment of license, is not a sufficient tender, a license not being a tax.</p>

Writ of Error to the Court of Common Pleas of the City of Cairo; the Hon. John H. Mulkey, Judge, presiding. The facts are sufficiently stated in the opinion of the court.

<p>1. Sheriff—liability for failure to levy execution. Where a sheriff receives an execution from a foreign county, against a party defendant, residing in his county, who is in possession of land, of sufficient value in excess of the incumbrance upon it to make the debt, the reasonable diligence which the law requires, will not excuse such officer from making a levy, and filing a certificate of the same in the recorder’s office of his county.</p> <p>2. So, in regard to personal property found in the defendant’s possession; the fact that he is informed that such property, then in the defendant’s possession, is not the property of defendant, will not exempt him from liability for not levying, if it afterward appear that the property at the time was the property of defendant.</p> <p>3. Notice—of levy. It is the duty of the officer having an execution in his hands, before he proceeds to take or seize any of the personal property of the defendant in the execution, by a levy thereon, to notify such defendant, if practicable, of his having such execution in his hands, and on so doing, the right arises to the defendant to select such property as he desires to retain under the statute, surrendering to the officer all his other property not thus selected or specifically exempt, for the satisfaction of the execution; and if the defendant so neglects or refuses to make a selection of property, the officer may proceed to levy upon any of his property not specifically exempt, and sell it, regardless of any claim the defendant may subsequently set up to such property as having been selected by him. But in case if tiie absence of the defendant from the county, while the sheriff had the execution, and could not therefore be notified, it was the duty of the sheriff to make a levy'on all property not specifically exempt, and thereafter the defendant may make his selection of the property so levied on, of the same quality and value as before the levy. But in such case, the defendant should surrender, or offer to surrender, an amount of other property sufficient to satisfy the execution, and failing to do this, the officer may proceed with the sale, unless the aggregate value of the property selected did not exceed the value of the property exempted under the statute.</p> <p>4.. Bükden op pkoop—in a failure to make a levy. Where a sheriff fails to make a levy on the personal property in the possession of the defendant, he can only discharge himself from liability by showing the property was not subject to levy. The onus probandi is upon the officer.</p>

Clair county; the Hon. J. Gillespie, Judge, presiding. This was an action of ejectment, brought by the heirs of Brady, to recover certain lands sold and conveyed by the administrator, under authority of the act of January 8, 1823, upon the ground that the act itself was unconstitutional. The facts are presented in the opinion of the court.

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>The facts are fully stated in the opinion of the Court.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. Charles Emerson, Judge, presiding. This was an action of trespass, brought by Stockton, against Churchman, an officer, who levied upon and sold the property of Stockton, which was exempt by law, from levy and sale on execution, to recover three times the value of the property so levied on and sold, under sec. 35, chap. 57, B. S. It appears that Stockton consented to the sale, and did not claim exemption.

<p>1. Dower—right of the widow in the purchase money paid for lands. Where the administrator of an estate pays the purchase money for certain lands out of the money of the estate, and receives the deed therefor, executed prior to the death of his intestate, and in pursuance of a contract entered into before his death, such contract being a valid claim against the estate for such purchase money, the widow cannot elect to claim her dower in this land, or in lieu thereof, one-third of the purchase money so paid out of the personal estate of her husband. The money has gone in payment of the lands, and the widow must be content to take her dower.</p> <p>2. Attorneys fees—taxed as costs. In a suit for partition and the assignment of dower, which was not of an amicable character, but was litigated between the parties, the attorneys fees paid by the parties prosecuting cannot be taxed as costs in the proceeding.* </p>

<p>1. Mandamus—when the wit may be employed. The writ of mandamus can only be employed where the party injured has a legal right, clearly established, but has no other remedy. If he has an action at law, or a remedy in equity, or there is doubt as to the relator’s right to the relief sought, then this writ will not be granted. So, where the proper officer whose duty it is to announce the result of an election, refuses so to do, a writ of mandamus to compel him to perform his duty in that regard, will issue, upon the relation of any voter and tax payer of the locality, whose interests are affected by his refusal.</p> <p>2. Elections—what is an expression of the will of the people. Where it is required by an act of the legislature, that, before it shall become operative, it shall be submitted to a vote of the legal voters of a designated district to be affected thereby, if the election which is attempted to be held in pursuance of such requirement, proves to have been illegally held in certain precincts within such district, those precincts containing a majority of the voters of such district, then the act will not be deemed to have been submitted to such a vote as its provisions required, and the result will not be declared upon the votes legally cast, adverse to what it would have been if no illegality had intervened.</p>

Writ of Error to the Circuit Court of Mason county ; the Hon. James Harriott, Judge, presiding. This was a bill in chancery, filed in the Circuit Court of Mason county by Holzgrafe, against the Winnesheik Insurance Company, to recover for loss by fire- on his application for their policy of insurance.

Writ of Error to the Circuit Court of Douglas county; the Hon. Charles H. Constable, Judge, presiding. This was an action of debt, brought in the name of Edward Talbott, late sheriff of Cumberland county, for the use of Foreman Brothers, against Geo. W. Albin et al. The action was commenced in the Circuit Court of Cumberland county, and, was removed, on change of venue, to the Circuit Court of Effingham county, and afterward to the- Circuit Court of Douglas county.

<p>Appeal from the Circuit Court of McLean County ; the Hon. John M. Scott, Judge, presiding.</p> <p>The opinion fully states the case.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Joseph Sibley, Judge, .presiding.</p> <p>The material facts are fully stated in the opinion.</p>

<p>1. Mistake—correction thereof in chancery. A court of chancery will not interpose to reform an instrument upon the simple fact that there was an understanding between the parties of a character materially different from that deliberately and knowingly expressed in the terms of the instrument itself, under a mis-apprehension of its legal effect, where it does not appear that the mistake occurred in the use of terms which the parties did not intend to employ in expressing their contract.</p> <p>2. Parol evidence—to change a mistake in a contract. The negotiations and conversations had between parties to a contract, prior to its execution, cannot be heard to change its character.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. Charles Emerson, Judge, presiding.

Writ of Error to the Circuit Court of Champaign county; the Hon. Charles Emerson, Judge, presiding. The facts are sufficiently stated in the opinion of the court.

James Steele, Judge, presiding. This was a petition filed by tax payers and residents of the town of Danville, in Vermilion county, to restrain the Board of Supervisors of Vermilion county from levying a tax for the construction of a bridge over the north fork of Verrnilion river, and the commissioners of highways of the town of Danville, from letting the contract for the same, alleging .in their petition that the erection and construction of said bridge at the place…

D. M. Woodson, Judge, presiding. This was an action, brought by Hamilton against the St. Louis, Jacksonville and Chicago Eailroad Company, to recover damages for killing a cow. The declaration was demurred to, on the ground that it did not contain certain allegations. The court below decided that the declaration did contain those allegations in substance, and the demurrer was overruled.

<p>Writ of Error to the Circuit Court of Scott county ; the Hon. Charles D. Hodges, Judge, presiding.</p> <p>The opinion folly states the facts.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Edward Y. Rice, Judge, presiding.</p> <p>The facts are fully stated in the opinion.</p>

Writ of Error to the Circuit Court of Champaign county; the Hon. Charles Emerson, Judge, presiding. This was an action for trespass, brought by one Harnit, against Thompson, Atwood and Bentley, in the court below, for the removal o,f a house from the land of the plaintiff, without his consent.

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

<p>1. Recognizance—of judgment upon before sci. fa. can issue. It has been held that a judgment of forfeiture, upon a recognizance, must be entered before a writ of scire facias can issue against the cognizors.</p> <p>2. Same—what is a sufficient judgment of forfeiture. And where it appears the cognizors were duly called and made default, “ whereupon it was ordered by the court that judgment of forfeiture be taken of their said recognizance, and that a scire facias issue,” that will be regarded as a sufficient judgment of forfeiture.</p>

Writ of Error to the Circuit Court of Jefferson county; the Hon. James M. Pollock, Judge, presiding. The facts are fully stated in the opinion of the court.

<p>1. Lunatic—of petition to restore property. Where a party who has been duly declared a lunatic, files his petition in the Circuit Court in which the original proceedings were had and continued, alleging his sanity, and asks that his property be restored to him: Hdd, that the continuance in the former case and the petition, being between the same parties, and relating to the same subject matter, the proceeding under the petition was, in substance, further proceedings in the original cause.</p> <p>2. Docketing suit—of its form. The mere form of docketing a suit cannot prejudice the merits in such a case. The appointment of a conservator is in the nature of an information, and is not technically a suit, involving adverse rights, or the recovery of property.</p> <p>3. Transcript of record—-for the Supreme Court—of its form and requisites. Where the clerk certifies the original proceedings, and the petition, in parts as two records, it does not change the record as it exists in the court below. It constitutes a transcript in but one case. The manner in which a clerk may divide a record and certify in parts, cannot deprive parties of important rights.</p> <p>4. Petition—the hearing, and herein of the rights of parties. On the filing of the petition, the court below may require the original case to be re-docketed—an issue formed and trial of the merits—and if found that the petitioner has regained his reason, order the conservator to return his property to him, otherwise to refuse the relief</p>

Joseph Sibley, Judge, presiding. This was a bill in chancery, filed in the court. below by the appellees, against the appellants, to obtain a lien for their claim to compensation upon certain real estate, recovered in an action of ejectment, prosecuted by them as the attorneys of appellants.

A. J. Gallagher, Judge, presiding. This was an action of replevin, brought by the appellant against the appellee, at the October term, A. D. 1867, of the Circuit Court of Moultrie county, the subject of which was a piano forte. The case was tried by the court, a jury being waived, and a judgment rendered for the defendant, awarding a return of the property. The facts in the case are fully stated in the opinion.

<p>1. Municipal corporations—special powers—to regulate and establish market homes. Under the authority conferred upon municipal corporations to erect, establish and regulate markets, and market places, whenever the power is exercised, it must be reasonable and uniform in its operation, and be calculated to promote the general welfare of the inhabitants, and must not create monopolies, nor restrain trade.</p> <p>2. Same—what deemed an unreasónáble exercise of power under such authority. The charter of the city of Bloomington empowered the Common Council “to erect market houses, establish markets and market places, and provide for the government and regulation thereof,” under which an ordinance was passed, designating two'certain lots, and the ground floor of the building thereon, as a market place, and prohibited any, and all persons, at all hours of the day, from keeping a private market, outside of the designated market place, for the sale of fresh meats in any quantity, excepting a few certain kinds, under a penalty of §20.00 for each offense. Held, that the ordinance was unreasonable; that it "was in restraint of trade, and tended to create a monopoly.</p> <p>3. Same—what would háve hem. reasonable. Had the ordinance fixed a reasonable number of hours of each day within which such article should be sold in the market limits,.and under the regulations thereof, and left all others, outside of these limits free to sell the same in the due course of trade, it might then be unobjectionable.</p> <p>4. Same—power to impose a license. And in such case, when authority of this nature is conferred, the corporation possesses the power to impose a reasonable license for the privileges granted.</p>

<p>1. Negligence—liability of a railroad company for killing stock. In an action against a railroad company for killing stock, it appeared that the animals were on the track near a culvert, and were seen by the engine driver; that he sounded the whistle to frighten them off, but that they ran along the track into a cut, and instead of stopping the train, as he might have done, it.was driven among them, and two of the animals were- killed before reaching the cut, and the remaining ones killed in the cut and along the track to the first crossing beyond it: Sdd, that this was culpable negligence on the part of the engine driver, for which the company was liable.</p> <p>2. Same—when plaintiff not considered equally in fault. And in such case, where the proof showed that the plaintiff had made use of one side of the company’s fence along the roadway, for an inclosure, in which the stock was penned, and through which they had broken and got upon the track, such act of carelessness on the part of the plaintiff, will not lessen the defendant’s liability, where the exercise of ordinary care and skill upon its part would have prevented the injury sustained.</p> <p>3. Former decisions—overruled. The contrary doctrine, announced in the cases of the Central Military Tract R. R. Co. v. Rockafellow, 17 Ill. 541; Great Western R. R. Co. v. Thompson, ib. 131; Ill. Central R. R. Co. v. Reedy, and Chi. & Miss. R. R. Co. v. Patchin, 16 ib. 198, overruled.</p> <p>4. Railroad companies—duties of—to prevent injury to the property of another. It is the duty of corporations, as well as of all persons, in all the business and avocations of life, each to so exercise his rights as to cause no unnecessary injury to another, each one using ordinary care and diligence to prevent injury to the other.</p>

<p>1. Evidence—in ejectment—that the lands were school propei-ty—what insufficient. Where, in an action of ejectment, the defendant proved color of title, and payment of taxes, for seven successive years, and the plaintiff claimed that the premises were school lands, and, therefore, not taxable, but, in proof of which, the record simply disclosed the fact, that the plaintiff, with others, received a deed of the property, as “ Trustees of the Carlinville School Union," and that thirty-five years ago, it had a log school house upon it, and was then known as the school lot: Held, that this was not sufficient evidence to show that it was school property, to take the case out of the statute of limitations.</p>

Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward T. Rice, Judge, presiding. This was an action of assumpsit, brought by Oarrigan against Hardy, to the April term of the Sangamon Circuit Court, 1865, to recover for the board of defendant, alleged to have been given him by the plaintiff. A trial was had before a jury, who found a verdict for the defendant, to reverse which the case is brought to this court by writ of error.

<p>1. Pleading at law—demurrer. The principle is well established, that judgment will be rendered against him who commits the first error in pleading.</p> <p>2. Same—concerning a plea under the act of Feb. 16, 1857, relative to the liability of vessels—pleader must bring himself strictly within its terms. Under the act of Feb. 16, 1857, relative to the liability of vessels, for debts contracted on account thereof, a pleader, in order to avail himself of the statute, must show himself clearly within its terms and spirit, as nothing will be presumed in that direction in his favor.</p> <p>3. Statutes—act of 1857—relative to vessels—in proceedings against vessels— giving bond—discharges lien. In a proceeding against a vessel, under the act of Feb. 16, 1857, the giving of the bond, as provided for by section five of that act, effects a clear discharge of the lien first obtained under the statute.</p> <p>4. Conflict of laws—concerning jurisdiction of State courts oven' contracts not maritime. The act of the general assembly of Illinois, passed Feb. 16, 1857, relative to the liability of vessels for debts contracted on account thereof, is not repugnant to the 9th section of the act of congress of Sept. 24th, 1789, conferring exclusive jurisdiction upon the- district courts of the United States, in all admiralty causes arising on the navigable waters of the United States.</p> <p>6. Contracts—what will not be considered maritime. Contracts made with the proper person for furnishing supplies to boats and vessels, and performed at the home port, are not maritime contracts, and for a breach of such contracts, actions can be maintained in the manner provided by the act of 1857.</p>

D. M. Woodson, Judge, presiding. This was an action of ejectment, brought in the Scott County Circuit Court, by appellant, at the March term, 1866, against the appellee, to recover eighty acres of land, situated in that county.

<p>1. Acknowledgment of deeds—by a feme covert—what is sufficient to pass her title. A certificate of acknowledgment stated that the husband was personally known to the officer, and that his wife appeared and acknowledged the deed, but omitted to state that she was personally known to the officer: Held, that such acknowledgment was insufficient to pass the wife’s title to the land thereby sought to be conveyed.</p> <p>2. Same—wife's identity. A certificate of acknowledgment must show that the wife was known to the officer to be the person who signed the deed.</p> <p>3 Former decisions. The case of Gove v. Cather, 23 Ill., 634, cited as in. support of this rule.</p> <p>4. Deeds—by a feme covert—statute must be complied with. The rule is inflexible, that a, feme covert can only convey her real estate by a strict compliance with the statute providing for such alienations.</p> <p>5. Former decisions. The cases of Mariner v. Saunders, 5 Gilm., 125 ; Russell V. Ramsay, 36 Ill., 370 ; Hughes v. Lane, 11 ib., 128 ; Lane v. Soulard, 15 ib., 123 ; Mason v. Brock, 12 ib., 273; Garrett v. Moss. 22 ib., 363, cited in support of this doctrine.</p> <p>6. Acknowledgment of deeds—identity. A certificate of acknowledgment . must show that the grantor was personally known to the officer before whom it ■ was taken, otherwise, it is fatally defective, and the deed inadmissible in evidence.</p> <p>7. Same—rule not affected by the act of 1853. And default is not cured by the act of 1853, commonly called the confirmatory act.</p> <p>8. Same—defect in, cannot be cured, by parol evidence. Mor is it competent to correct such defective certificate of acknowledgment, by the parol evidence of the officer making it.</p> <p>9. Limitation of actions—seven years limitation act—when does not apply to a feme covert. The seven years limitation act of 1839, does not apply to titles held by femes covert, provided, they commence an action for the recovery of the premises, within three years after the disability shall cease to exist.</p>