Volume 47 — Illinois Reports

<p>1. Limitation of actions—seven '.years limitation act. Under the seven years limitation act of 1839, a party, in order to claim its benefits, must show, not only claim and color of title made in good faith, but also a continuous possession thereunder for seven successive years and'the payment of all the taxes legally assessed upon the land during that time.</p> <p>2. Same—color of title, possession and payment of taxes must concur. When these three things concur, color of title, possession, and the payment of taxes, for seven successive years, a party will be adjudged the legal owner of the lands to the extent of his paper title, and the bar is complete. But it is immaterial whether the deed is color of title or not, if possession and the payment of taxes the requisite time did not concur.</p> <p>3. Statutes—concerning act for the relief of the settlers in the American Bottom— to whom it applies. The act of February 2, 1859, for the relief of actual settlers in the American Bottom, does not apply to a resident on a town lot in a town located in the American Bottom, or to the owner of such 1'bt, but is expressly limited to those residents whose farms or improvements were submerged by the overflow of the Mississippi river in the summer of 1858, and whose crops were thereby damaged or destroyed.</p> <p>4. Former decisions. The case of Elston et al. v. Kennicott’s heirs, 46 Ill. 187, examined and explained.</p> <p>5. Limitation of actions—seven gears limitation act—sale of lands during the running of the statute—effect of. Where a party, seeking to acquire title under the seven years limitation act, allows the lands to be sold for taxes during the running of the statute, and afterwards redeems from such sale, he will be required to begin de novo, and wait the required time for a deed.</p>

<p>1. Harmed women—llow far husband may be agent for the wife unda• the law of 1861. Under the act of 1861, for the protection of married women in their separate property, the husband may act as agent for his wife, in a particular transaction, or generally, for the control of her property, or the investment of her funds. He may lease her property and collect the rents, or invest her money, or change the character of her investments, if authorized by her, and he may do this without subjecting her property to his debts.</p> <p>2. But she cannot make him her agent to engage in trade, to be managed by him, to which all his time and energies must be devoted, without subjecting'the property embarked in such trade and its profits, to the payment of his debts.</p>

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

Writ oe Error to the'Circuit Court of Coles county; the Hon. James Steele, Judge, presiding. This was an action of replevin, brought by Brooks against Record, to recover a mare, claimed by the plaintiff. A trial resulting adversely to the plaintiff, he sued out this writ of error.

This is an application to this Court, in the name of the people, on the relation of John Hodges, for a writ of mandamus against Orlin H. Miner, Auditor of Public Accounts.

<p>Appeal from the Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding.</p>

Joseph Sibley, Judge, presiding. This was an action of debt on a lease, brought by the appellee, against the appellant and one August Scheineman, to the April term, A. D., 1867, of the Adams Circuit Court. The facts in the case are fully presented in the opinion.

<p>1. Religious corporations—on separation—rights of majority and minority stated. In case of a division of a religions corporation, both parties still adhering to the tenets and discipline of the organization, the property should be divided between them in proportion to their numbers at the time of such separation.</p> <p>2. Former decisions. The rule adopted in the case of Ferraria v. Vasconcellos, 31 Ill. 26, applicable to this case.</p> <p>3. Religious corporations—right of voting—should not he confined to members. Upon questions affecting the property of a religious corporation, the right to vote thereon should not be confined to persons only who are members of the church. Those who have contributed to its support, although not members, should be allowed a voice in such matters.</p> <p>4. Same—partition of the property—how effected. In making partition of the property of a religious corporation, in case of a division, mathematical nicety is neither attainable nor important. The only satisfactory mode would be, to count church members by virtue of their membership, and in addition, to count as members of the congregation, all pew-holders.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. James Steele, Judge, presiding.</p>

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

<p>1. New trial—vet'dict against the evidence. Where there is no evidence to warrant the verdict of the jury, a new trial will be awarded.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Edward T. Rice, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding.</p>

<p>1. Bill for an account. In 1837, D &.H, partners in trade, loaned to the firm of J. & S. Dunlap two sums of money, taking their notes therefor. J. Dunlap, at the same time, holding a note against D. In 1839, D & H dissolved, and in 1862, shortly before D’s death, he and J. Dunlap settled, and the notes on both sides were surrendered: Held, in a suit by H, against D’s executors, to compel an accounting as to the notes so received by D, it appearing in evidence that no final settlement had ever been made between D & H, concerning their partnership affairs, and that D had stated to J. Dunlap, as late as 1852, that H was interested in these notes; that the presumption that they had been assigned to D, could not be indulged, because of the lapse of time between the dissolution of the firm of D & H, and the settlement of the notes by D, and that H, therefore, was entitled to said accounting. '</p>

<p>1. Labceny—what proof insufficient to authorize a conviction under the act of June 28th, ÍSBÍ. Where, in a trial for larceny, the evidence failed to disclose the time when the offence was committed, other than the statement of the prosecuting witness, to the effect that the property was lost “about ” eighteen months before the trial, which occurred January lith, 1868, and that “some months afterwards” it was found in possession of a party to whom the defendant had sold it: Held, that the expressions “about” and “some months afterwards," in fixing the time of the commission of the larceny, were too indefinite to warrant an instruction to the jury, authorizing the punishment to be imposed under the act of June 28th, 1861, should they find the defendant guilty, and the value of the property to be §15, or more.</p> <p>2. Same. That, under this evidence, the jury would have been warranted in finding the offence to have been committed after the adoption of the act of March 5th, 186T, and before the adoption of the act of June 28th, 1861?, and if so found, it would be petty larceny, had the jury found the value of the property to tie less than §25.</p>

<p>Writ oe Error to the Circuit Court of Clark County ; the Hon. Hiram B. Deoitts, Judge, presiding.</p>

<p>1. Insceahce—duration of risk—necessary transhipment. Under a policy of insurance for the safe carriage of stock, and which covered, with the usual exceptions, the perils of railway and river, and by special endorsement fixed the places of shipment and destination, and the route to be taken, the liability of the insurers continues during the necessary transhipment occurring on the designated route.</p>

James Steele, Judge, presiding. This was an action of assumpsit, brought by the appellees against the appellant, in the Edgar county Circuit Court. The declaration contained the common counts, to which a plea of the general issue was filed, with an agreement that any facts might be given in evidence, which would be competent under special pleas. The case was tried by the court, a jury being waived, and a judgment rendered for plaintiff for $109.00.

<p>Appeal from the Circuit Court of Macon county; the Hon. John M. Scott, Judge, presiding.</p>

Charles D. Hodges, Judge, presiding. This was an action of assumpsit, brought by the appellee against the appellant, in the court below, to recover back certain moneys alleged to have been fraudulently obtained from him by appellant, in the purchase of certain lands. The cause was tried before a jury, who rendered a verdict for the plaintiff for $430.00.

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

Edward Y. Bice, Judge, presiding. This was an action of assumpsit, brought by Ballinger against Christopher, at the March term, 1867, of the Circuit Court of Macoupin county, to recover upon a promissory note. Judgment was rendered for the plaintiff, and defendant appeals to this court. The only question made in this court is, whether a promise, with or without a consideration, to dismiss the suit, can be pleaded in bar.

Ebwabb Y. Eice, Judge, presiding. Patrick Keefe brings an action for damages, received while in the employ of the Chicago & Alton Eailroad Company, as a laborer upon a construction train. The facts, as they appear in the record, show that Keefe was at work on the construction train, unloading railroad iron; that while so engaged, the conductor signaled the engineer to run his train on the switch, to get out of the road of an approaching passenger train.

<p>1. Administrator—purchasing at his own sale. As a general rule, a person, acting in a fiduciary capacity, cannot be permitted to purchase property at his own sale. And, in such case, it does not matter whether the purchase is in the name of the person conducting the sale, or in the name of another, for his use. And, in such a sale, the law will presume fraud, and the sale will be set aside, at the instance of the party in interest, if he shall apply in reasonable time for that purpose.</p> <p>2. So, where, at an administrator’s sale, the auctioneer at such sale, bids in the premises, in his own name, and subsequently conveys to the administrator the same premises, without consideration, or the execution of notes, with security upon the premises so conveyed, it will be construed as a conveyance by the administrator, to himself.</p> <p>3. Same—of reasonable time for heir to apply to set aside the sale. In this case, the lands were sold August 25, 1855, and the administrator, as purchaser, entered into possession. A short time prior to the sale, the administrator married the widow of the intestate, and was also appointed guardian of the minor heir, then about six years old. On the 14th of August, 1863, the ward married, and in May, 1865, she died, still in her minority, leaving a son, the issue of the marriage, who also died, in September, 1865. On the Tth of April, 1866, the father, as his sole surviving heir, filed his bill to set aside the sale, and the conveyance thereunder : Held., that this was such reasonable time as the law contemplates, within which to commence suit.</p> <p>4. Same—in possession—must account for rents and profits. The administrator in possession as grantee and purchaser, is liable to account for rents and profits, in excess of taxes, necessary repairs, debts of estate paid by the administrator, and other proper charges.</p>

D. M. Woodson, Judge, presiding. This was an action brought against a railroad company, to recover damages for killing stock.

Writ or Error to the Superior Court of Chicago; the Hon. J ohm A. Jamesom, Judge, presiding. This was a suit in chancery, for partition, or sale, if not divisible, of lot 16, in block 40, school section addition to the city of Chicago, instituted by the defendant in error, William O’Meara, in the Superior Court of Chicago. The further facts in the case are sufficiently stated in the opinion.

<p>Writ of Erbob to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. John M. Soott, Judge, presiding.</p>

<p>1. Ejectment—a party entering under a defendant takes only his rights. A party who enters under a defendant in ejectment, after suit commenced, takes, subject to whatever judgment may be rendered therein, and if evicted, cannot complain that he was not made a party to such suit.</p> <p>2. Same—when a landlord cannot be said to hold under his tenant. Where a landlord resumes possession of the demised premises, after a suit in ejectment has been brought against his tenant, and after the lease of the tenant has expired, he cannot be said to hold under his tenant. In such cases, sections 29 and 31 of the ejectment act have no application, neither the title nor the possession of the landlord having accrued after suit brought.</p> <p>3. Same—a tenant sued in ejectment nvust notify hislandlord—effect of such notice. The statute requires a tenant, under a penalty, when sued in ejectment, to give immediate notice thereof to his landlord, who can appear and defend in the name of his tenant, or may be made a co-defendant in the suit.</p> <p>4. Same—-when landlord concluded by judgment against tenant. And when a landlord has received notice of the pendency of a suit in ejectment against his tenant, and-has had an opportunity to defend, he will be concluded by a judgment for the plaintiff, and liable to eviction, if the premises have been surrendered to him, notwithstanding the judgment may have been only against the tenant, in name. .</p> <p>6. Same—when landlord has received no nolice of the suit, not concluded by a judgment against the tenant. Where a landlord receives no notice of the pendency of a suit in ejectment against his tenant, and is chargeable with no fault or laches, he cannot be,evicted, possession having been surrendered to him pending the suit, by a writ of possession issued on the judgment against the tenant.</p> <p>6. Same—rights of the landlord, in such case—■entitled to a trial upon the merits. And in such case the court should, on motion of the landlord, stay the writ as against him, until he can be made a party to the existing suit, and a trial be had upon the merits, the plaintiff not being required to bring a new suit.</p> <p>V. Same—when landlord will not be deemed guilty of laches in asserting his rights, after judgment against tenant. In determining the question of laches on the part of the landlord, in failing to make application to set aside a judgment by default in ejectment, taken against his tenant, at the earliest day possible, after learning of such judgment, the fact, that up to the time of making such motion, no writ of possession had been issued, should be taken into account.</p> <p>8. Same—of the writ of possession—special order required for—when. Where a plaintiff in ejectment fails to take out his writ of possession for a year after judgment, it is doubtful if he is entitled to it, without a special order.</p> <p>9. Same—equitable jurisdiction of court over writ of possession. In the action of ejectment, the court that renders the judgment exercises a species of equitable jurisdiction over the writ of possession, recalling it, if justice requires, and sometimes, after execution, awarding a writ of restitution.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding.</p>

<p>1. Indictment—-for forging bank check—averment or proof that instrument was stamped—not required. An indictment for forging a bank check, need not aver that the instrument alleged to have been forged had the proper revenue stamp attached to it; and a conviction under such an indictment would be good, without proof of such fact, if the instrument was proved to be fhlse and forged, and made with the intent charged.</p> <p>2. Same—instrument made by an agent in the name of his principal, not necessary to aves- agents authority. And in such case, where the forged paper purported to have been made by an agent, in the name of his principal, it is not necessary that the indictment should aver the authority of the agent, or to aver that it was so drawn.</p> <p>3. Same—setting out instrument in hcec verba sufficient. Under our code of criminal procedure, an indictment, setting out the instrument alleged to have been forged, in hcec verba, with an averment that it was made with intent to defraud the party whose name is signed to it, is good.</p> <p>4 Same—charging the offence—An indictment is sufficient, if so plainly drawn that the nature of the offence may be understood by the jury.</p> <p>5. Variance—objection for, must be taken at the trial. It is well settled in this State, that an objection for variance must be taken at the trial. It is too late to make it on error.</p> <p>6. Same—in criminal actions. In an indictment for forging a bank check, the check was set out in hcec verba, with the omission of the figures denoting the number of the check, and, also, of the letter “ C” written under the signature: HeId, that there was no variance.</p> <p>7. Indictment.—authority to draw the check—when will be inferred. And, in such case, where the proof showed that the agent was in the habit of signing his principal’s name to checks, and which was permitted by his principal, his authority so to do, will be presumed, in the absence of counter evidence.</p> <p>8. Accomplice—definition of. An accomplice is one who is, in some way, concerned in the commission of a crime, though not as a principal; and this includes all persons who have been concerned in its commission, whether they are considered, in strict legal propriety, as principals in the first or second degree, or merely as accessories before or after the fact.</p> <p>9. Criminal law—conviction supported alone by the testimony of an accomplice— legal. The law is well settled, that a legal conviction may be had, upon-41ie uncorroborated testimony of an accomplice.</p> <p>10. Evidence—in criminal matters—forgery—of other crimes committed, when competent as res gestee. Upon the trial of a party indicted for forgery, evidence of another forgery committed by the prisoner, at the time of the commission of the offence for which he was on trial, is competent in identifying the party and the transaction and as res gestee.</p> <p>11. Same—handwriting—witness having seen the party write. The rule is well settled, that a witness who obtained his knowledge of a person’s handwriting by having seen him write, is competent to say whether another paper, or another word, or name, was in the handwriting of such person.</p> <p>12. Same—the fact that witness has seen the party write but once, does not affect his competency. And the fact that such witness had seen the party write but once, does not go to the competency or admissibility of his evidence, but only to the weight which should be given to it by the jury.</p>

John M. Soott, Judge, presiding. This was a proceeding instituted hy the St. Louis, Jacksonville & Chicago Railroad Company, to obtain the right of way across certain lands owned by Isaac Mitchell. The proceedings were commenced by petition to a justice of the peace who appointed three commissioners to assess any damages which might accrue thereby. The commissioners assessed the damages at $700.

Writ of Error to the Circuit Court of Morgan county. At an election held on the 6th day of November, 1866, Sylvester L. Moore and Milton Mayfield were opposing candidates for the office of sheriff of Morgan county, and upon counting the votes, the canvassers declared that Moore had received a majority thereof, and was elected to that office.

<p>1. Mistake—in instruments of writing. The rule is well established in all • cases, that where a writing is sought to be reformed, the evidence of the mistake shall be clear and satisfactory, leaving but little, if any, doubt of the mistake.</p>

<p>1. Railroads—what is negligence. Where a cow entered the close of another, through an insufficient fence upon the highway, and passed from thence through a space made for bars, and used as a farm crossing, upon the railroad track and was killed, and it was proved that the bars had been left down for a period of three months: Held, that the statute required the railroad company to “erect and maintain ” a sufficient fence, of which the bars were a part, and that the company were guilty of negligence for allowing them to remain down for so long a time.</p> <p>2. But it seems that if the bars had been taken down by the owner or occupant of the farm, for whose use they were made, and the crossing permitted by the railroad company, and he had neglected to replace them, his own act would prevent a recovery in a suit brought by him.</p> <p>3. Trespass—of cattle, what constitutes. Under the laws of this State cattle may go at large, and if they enter upon private property, they are not trespassers, unless such property is surrounded by a statutory fence.</p>

Writ oe Error to the Circuit Court of Piatt County ; the Hon. A. J. Gallagher, Judge, presiding. This was an action of assumpsit, brought in the Macon County Circuit Court, and afterward taken, by change of venue, to the Circuit Court of Piatt County, to recover damages for breach of contract.

<p>1. Partnership—existence of—dei&i'minedbythefacts and intention of the parties. The intention of the parties, together with the facts, must, as between themselves, be decisive of the question, whether a partnership did, or did not exist between them, and as to its extent.</p> <p>2. Contracts—to be consumed by courts alone—and not by witnesses. The rule is well settled, that the construction of contracts, written or verbal, rests exclusively with the court, and they can not be expounded by witnesses.</p> <p>3. Partnership—’construction of a particular agreement—what will not constitute a partnership. B & L, partners in the manufacture of certain agricultural implements, made a verbal agreement with M, a banker, whereby he agreed to furnish them money from time to time, and_ sufficient to manufacture as many articles as they might think safe and profitable, M’s advances, in any event, to be returned to him, and if. the adventure proved profitable, he to have in addition, one third of the profits in lieu of interest on the money loaned. No time being fixed for the termination of the adventure, or provision made that M should bear any part of the expenses or losses; Sold, that no partnership existed between B & L and M, in virtue of such agreement.</p> <p>4. New tkial—where substantial justice has been done. Where substantial justice has been done, a judgment will not be reversed because of the admission of improper testimony.</p>

John M. Scott, Judge, presiding. This was a bill in chancery, filed, in the Circuit Court of McLean county, by John Henderson and others, appellees, against Arthur Latham and others, to set aside ascertain deed made by one W. H. Latham, to his co-defendants, for a large quantity of land, and subject the same to the payment of certain indebtedness due from him to complainants. The further facts in the case are fully stated in the opinion.

<p>Appeal from the Circuit Court of Morgan county; the Hon. Chas. D. Hodges, Judge, presiding.</p>

Chables D. Hodges, Judge, presiding: Ealph Thornley, who was eighty years old at the time of his death, was possessed of property amounting in value to •about $26,000. Of this amount, some $8,000 was in H. S. bonds and notes. The rest of his wealth consisted mostly of land. He has been living with his two sons, Samuel, who was unmarried, and Hugo, who was married and had four children.

Chauncey L. Hig-bee, Judge, presiding. This was an action of ejectment, brought by William Kain against Sanderson Lyon and John W. Lyon, to recover lands in his declaration specified. The defendant pleaded the general issue. The cause was tried by the court without a jury. The plaintiff derived title through a chain of conveyances deduced from the patentee, and rested.

John M. Scott, Judge, presiding. This was an action on the case brought by Swearingen, against the company to recover the value of three horses of •the plaintiff, killed by a train on defendant’s road, which passed through plaintiff’s land. The fence was seen Saturday afternoon by a section master, and he testifies it was then up. That night, one horse got upon the track and was killed. Sunday night, two other horses got upon the track and were killed.

<p>Appeal from the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding.</p>

Writ of Error to the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding. This was an action of ejectment, and the declaration contained three counts ; the first, alleging title in Noah Cook, the second in Noah Cook and Martha Reason, the third in Martha Reason alone.

<p>1. Fraudulent title—not cured by decree in confirmation thereof—fraud. Where a vendee of lands, at an execution sale, knowing that the judgment upon which his title rests is satisfied, obtains a decree setting aside conveyances, fraudulent as to judgment creditors, and in confirmation of title in himself, still concealing from adverse claimants his knowledge that the judgment is satisfied, his title is fraudulent, and may be impeached in equity, notwithstanding the former decree in relation to the same title.</p> <p>1. Former adjudication—whennot conclusive. The general rule is, that a former adjudication is conclusive between parties and privies, as to the subject matter involved. But this rule cannot be invoked to aid a party who knew Ms claim was groundless at the time of the former adjudication, in a suit against him by the parties defrauded, where not estopped by their want of diligence.</p> <p>3. Diligence—in relation to papers on the public files. The existence of a receipt or acquittance of a judgment on file with the judgment papers, at the time of a chancery proceeding to enforce a title deduced from such judgment, being known to the party enforcing the title, but unknown to the defendants in such proceeding, will not estop these defendants from setting up the acquittance jn a bill to review or impeach the former decree, upon the ground of a want of diligence in the former suit: Seinble, that the rule would be different where all the parties were equally in ignorance of such a paper.</p>

<p>Wbit oe Ebbob to the Circuit Court of Sangamon county; the Hon. Edward T. Rice, Judge, presiding.</p>

Wbit of Ebbob to the Circuit Court of Macon county; the Hon. O hables Emebson, Judge, presiding. Hamsher and wife conveyed, by mortgage, to Thomas O. Smith, a lot in Decatur, in which they had a homestead, without waiving or releasing it in the deed. Subsequently the same parties conveyed by mortgage, to Coe and Yan Duyn, the same premises, and in the deed to them, the homestead was waived and released in due form.

<p>1. Statutes—construction of the statute relative to decrees against persons not personally notified. A decree rendered under section 16 of the act entitled “ Chancery,” is but interlocutory, and does not become conclusive, until confirmed by the lapse of three years from the time of its rendition.</p> <p>2. Decrees—rights acquired wider—where there has been no personal, service on defendants—•subject to be divested. All persons acquiring rights under such decree, before it becomes final and conclusive, are equally affected with notice of its conditional character, and all interests so acquired, whether for a valuable consideration or otherwise, are entirely dependent upon the confirmation of the decree, and which, if vacated, renders all proceedings under it a mere nullity.</p> <p>3. Chancery practice—relative to proceedings allowing a parly to answer—, under section 16 of act entitled “ chancery.” Upon petition to be allowed to answer under section 16 of the act entitled “ chancery,” the correct practice is, to let the former decree stand until the final hearing, and then make such decree, either setting aside the former one and dismissing the bill, or confirming or-modifyiug the same, as may be determined.</p> <p>4. Same—irregular practice in such case—cannot be attacked in a collateral proceeding. Although the practice is irregular, for the court to set aside and vacate the former decree, upon the petition to be let in and defend, yet such irregularity cannot be attached in any collateral proceeding, and such decree setting aside and vacating the former decree, will be held binding, until reversed in a direct proceeding.</p>

<p>1. Attachment—garnishee of money in the hands of a special master in chancery. Money in the hands of a special master in chancery, being the proceeds of a sale of land in a partition suit, and which funds, the court appointing him had by a final order directed to be paid over to D, as belonging to him, may be attached by D’s creditors as property belonging to him.</p> <p>2. Whenever an official holds money merely as the agent of the law, he cannot be charged on garnishee process in respect to such funds. But whenever his liability becomes changed, from an official to one personal, he is amenable to the process.</p> <p>3. Former decisions. The cases of Lightner v. Steinagel, 33 Ill. 515; Pierce v. Carleton, 12 ib. 358; Reddick v. Smith, 3 Scam. 451, examined and discussed and declared to be in entire accordance with this doctrine.</p>

<p>Whits of Ebbob to the Circuit Court of McLean county; the Hon. Johh M. Scott, Judge, presiding.</p>

<p>1. Elections—what elections considered general—in a constitutional sense. The annual November elections, provided for by legislative enactment, are general elections, within the meaning of the constitution.</p> <p>2. Township organization—order submitting question to the people—need not be entered of record in the court making it. It is not necessary that the order made by a county court, for submitting the question of township organization to the people, should be spread upon its records, it appearing from the proceedings had subsequently before the court, that such order was in fact made; it is no objection that the clerk negligently omitted to spread it upon the record.</p> <p>3. Elections—vote cast at any general election—determines number of legal voters. The vote cast at any general election is prima facie evidence of not only the result of the election, but also of the number of legal voters in the county. This presumption will be acted upon until rebutted, and the registry lists can not rebut or overcome it.</p> <p>4. Appeals—-from county court—in what cases an appeal will not 'lie. In proceedings before a county court, under the law authorizing township organization, a decision by the court after election held, that township organization had been adopted, and the entry of an order appointing three commissioners to divide the county into towns, is not a decision or order from which an appeal is authorized by law.</p> <p>5. Township organization—report of commissioners—what it need not contain. The report of the commissioners appointed to divide a county into towns, need not contain the reasons why township boundaries were not adopted by them, in making such division.</p>

<p>1. Mandamus—'alternative writ—effect of demurrer to return, A demurrer to a return to an alternative writ of mandamus, admits the truth of the allegations of such return.</p> <p>2. Highways—power of commissioners to annul proceedings of their predecessors. Commissioners of highways may modify, alter or rescind, any order their predecessors may have made, provided such modification, alteration or rescission, does not affect the rights of third persons acquired under such first order.</p> <p>3. Contkacts—annulling a contract by oneparty does not impair its obligation. Where one party to a contract annuls it, without the consent of the other, such act does not impair its obligation, if it had any. That can always be enforced.</p> <p>4. Highways—duties of county supervisors—after report of commissioners relative to construction of improvements—when may decline to levy special tax therefor. After the estimate of a public improvement has been properly certified to a board of supervisors, such board is not required to act instanter thereon, and to levy and collect the necessary tax therefor, but may, upon due consideration of all the attendant circumstances of the case, if, in its judgment, it may so decide to act, decline to levy such tax. The levy and collection of such special tax, to the amount of such estimate, is a matter entirely discretionary with the board.</p> <p>5. Mandamus—alternative writ—who not entitled to. In a matter concerning public improvements, a writ of mandamus should be denied, where the relator, a mere individual tax payer, has no other interest in the subject matter than the public generally.</p> <p>6. Highways—proceedings of commissioners of—may be inquired into by board of supervisors—for the purpose of ascertaining their jurisdiction. A county board of supervisors have the right, on the instigation of any tax payer, or ex maro motu, to inquire into all the facts which give to highway commissioners in their proceedings, jurisdiction, and when jurisdiction is wanting, all acts done to enforce jurisdiction are void.</p> <p>t. Same—powers of commissioners of. The commissioners of highways have no authority to order the construction of a bridge at a place where no highway exists; and if such fact appears, the board of supervisors to whom the estimate has been reported, may disregard their action. The existence of a public highway is the first predicate.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Edward Y. Rice, Judge, presiding.</p>

D. M. Woodson, Judge, presiding. The fourth instruction for the plaintiff, the giving of which was assigned as error, and which t.he court held to be good, is as follows: “If the jury believe from the evidence, that the plaintiff, through the witness Knapp, demanded of the defendant, or his agent, the money in controversy, in June, 1865, and that the defendant, or his agent, failed or refused to pay the same on such demand, then such failure and refusal are prima facie proof…

<p>1. New tbial---verdict against evidence. This court will not grant a new trial in cases where, upon a careful inspection of the record, the verdict of the jury is warranted by the fair and reasonable intendment of the facts and circumstances.</p> <p>2. Assignment eob the benefit of obeditobs—to pay individual liabilities of partners—void. Where, by the deed of assignment by an insolvent firm, partnership property is appropriated to the payment of the individual debts of one partner, such assignment is per se fraudulent and void as to the firm creditors.</p> <p>3. Partnership—concerning the assumption by—of the individual debts of one oartner. Where the individual debts of one partner are assumed by the firm, strict proof will be required of the honesty of such transaction, that the consideration therefor was valuable, and that it was for the benefit of the partnership, beyond all controversy. Even then the power is doubted.</p>

Writ of Error to the Circuit Court of Mason county; the Hon. Charles Turner, Judge, presiding. This was an action of covenant, brought in the court below, by the plaintiff in error, against the defendant in error, wherein a judgment was rendered for the defendant, to reverse which the case is brought to this court by writ of error.

<p>1. Administbators—sale, of lands by. The title of a purchaser of lands at an administrator’s sale cannot be defeated because the administrator obtains the order of sale to pay debts, which the latter knows to be fraudulent, where the purchaser is not chargeable with notice of, or participation in, the alleged fraud.</p> <p>2. Such purchaser is only bound to see that the court ordering the sale has jurisdiction of the subject matter, and of the person; if so, his title will be protected.</p> <p>3. And where a part of the claims are valid, and others are fraudulent, the title of a-purchaser at such sale could not be questioned in a collateral proceeding, though it might appear that he had notice, or was a participant in such fraud.</p> <p>4. Lien—of creditors of an estate. The lien on real estate of a deceased person, existing in favor of his creditors, is superior to the claim of heirs and devisees, and their alienees, if enforced within a reasonable time. Five years after the decease is within a reasonable time.</p>

D. M. Woodson, Judge, presiding. James McHale and John McHale filed a bill in chancery against Mary Fleming, and other co-heirs with themselves, of Mary McHale, deceased, charging that a certain tract of land, the legal title of which was in Mary McHale at her decease, was purchased by them with their money, and that the deed was, in fact, made to said Mary McHale, because Hurd, the vendor of the land, believed the complainants were under age, and was unwilling to 'take…

Joseph Gtillesfie, Judge, presiding. This was an action of covenant, instituted in the court below by Benjamin F. Dorsey against the St. Louis, Alton & Terre Haute Railroad Company, and judgment was rendered by default against the defendant.

<p>1. Divorce—custody and support of infant children. A decree dissolving the marriage relation and giving the custody of children to the mother, because of the unfitness of the father, and allowing a sum in gross as her alimony, does not impair the obligation of the father to support them.</p> <p>2. , Same—allowance for support of children, necessaries. While the father is still liable for the support of his children in the custody of the mother, he is only bound to provide a reasonable and proper support according to the age, ability and circumstances of his children, and his own means; he is bound to provide necessaries, and provision for their education will be so deemed, but he will not be charged with their tuition, where a free school is accessible to them.</p> <p>3. Same—allowance—earnings of children. In estimating what is a reasonable and proper support for the children, their earnings should be considered, and deducted from the gross sum adjudged necessary; he will not be required to support them in idleness.</p> <p>4. Alimony—a sum in gross, allowed in lieu of alimony, is a bar to further claims. Where a decree awards a sum in gross as alimony, which is a liberal and fair proportion of the husband’s estate, it will be held to be in'discharge and satisfaction of all future claim of the wife to a future support; semble, that the provisions of the statute authorizing the courts, from time to time, on application, to make alterations in the allowance of alimony is applicable only to cases where the same is stipendiary.'</p>

A. J. Gallagher, Judge, presiding. This was an action against the Railroad Company to recover for killing a colt, and was commenced before a justice of the peace, and taken by appeal to the circuit court, where judgment was rendered for Baker upon the verdict of a jury.

Charles D. Hodges, Judge, presiding. This action was in case, to recover for injuries received by Harmon, by the running away of his team, caused by an engineer of the road letting off steam from his engine with a loud noise, just as Harmon was crossing the track.

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

<p>'1. School fund—of its distribution among townships—-forfeiture. Trustees of school townships, who fail to make the biennial report required by the 36th section of the law of 1857, will, under the operation of the 13th section of the law of 1865, cause their township to forfeit its portion of the public fund for the next ensuing year.</p> <p>2. Township treasurer—must give bond. Under the act of 1865, amendatory of the school law, no portion of the school fund shall be paid to the township treasurer until he files his bond; and a school commissioner may properly refuse to pay money to such treasurer, where that is omitted to be done.</p>

<p>Writ of Ebbob to the Circuit Court of Randolph county; the Hon. Silas L. Bryan, Judge, presiding.</p>

<p>"Writ of Ebbob to the Circuit Court of Clinton county; the Hon. Silas L. Bbyah, Judge, presiding.</p>

<p>1. Officer—sale of property exempt from execution. Where a constable levied upon and sold personal property, selected and claimed by the execution debtor, as exempt from execution, of which the officer had notice, and such execution debtor had at the time, other personal property in his possession, which he failed to produce in lieu of the exempted property, such officer is not liable for the penalty prescribed for selling property exempt from execution.</p> <p>2. And it is not sufficient to excuse the debtor, from delivering to the officer the other property in his possession, that there was a chattel mortgage thereon, unless he should inform the officer of the condition of the property, in order that he might act advisedly in the premises.</p>

<p>1. Negligence—when not deemed, to exist. Where a well is dug upon the land of another, without the knowledge or consent of the owner, and an animal falls into it and is killed, the owner of the land cannot be held to respond in damages on the ground of negligence.</p> <p>2. So, where a well is dug upon the right of way of a railroad company, without their knowledge and consent, and a mule falls into it and is killed, the company cannot be held liable on the ground of negligence, in not covering or securing such well. , The act requiring railroad companies to fence their roads, is only designed to protect the traveling community from accidents, occasioned by stock getting upon the road, and also to prevent damage to such stock, from their liability to be run over and killed, and is not intended to extend their liability to the case named.</p>

John H. Mulkey, Judge, presiding. This was a proceeding, instituted in the court below, by W. H. Walter & Co. against the tug Montauk, by a warrant under the act of February 16th, 1857, in reference to proceedings in rem against boats and vessels. The further facts are stated in the opinion.

<p>1. Alteration—whether material. Where a promissory note was made payable to Thomas P. Warrick, and the holder of the note altered the same, by adding to the name of the payee, the words, “ & Co,” it was held, that such alteration, was in no respect material to the maker of the note, as it did not appear his liability was affected thereby.</p> <p>2. Same—effect upon the right of recovery. If the alteration were material, but not fraudulently done, the party may recover upon the original consideration. But a fraudulent alteration, not only avoids the note, but prevents a recovery upon the original consideration also.</p> <p>3. So, upon a bill to foreclose a mortgage given to secure such note, the alteration, whether material or not, but not being made with a fraudulent purpose, the decree of foreclosure was properly entered, there being proof of the original consideration for which such note was given.</p>

Silas L. Bryan, Judge, presiding. This was an action of assumpsit, brought in the court below, by Haney E. Kirkham, against Lavinia Creel. The facts out of which this alleged cause of action arose, are as follows : Benjamin Creel, by his last will, had devised to the plaintiff a tract of land upon which there was a crop of wheat growing, at the time of the testator’s death. The crop was owned by testator and a third person, as tenants in common of the crop.

Silas L. Bryan, Judge, presiding. This was an appeal to the Circuit Court of Randolph coun ■ ty, from the Probate Court of that county, in a citation by Sarah A. Simmons, widow of Luther Simmons, deceased, to J. Perrry Johnson and William Hartzell, administrators de bonis non, with will annexed, of the estate of Luther Simmons, deceased.

Wkit of Ebbob to the Circuit Court of Jasper county; the Hon. Aabon Shaw, Judge, presiding.

Whit of error to the Circuit Court of Marion county ; the Hon. Silas L. Bryan, Judge, presiding. This was a suit in chancery, brought by Thomas Nichols, a vendor of land, against Younger Boston, the purchaser, for a specific performance of the contract. The bill was taken as confessed, and decree accordingly. The cause was brought to this court, by the defendant, by writ of error. The further facts appear in the opinion.

<p>1. Administrator—of notice—need not specify the day of term on which the application for an order to sell will be made. A notice by an administrator of an application for an order of court to sell lands to pay debts, need not specify the day of the term on which he will make the application.</p> <p>2. Notice—what is—under the statute. Where the notice was published three successive times in a weekly newspaper, the first publication of notice appearing on the 16th of March, the second on the 23d, and the last on the 30th of March: Held, this was a compliance with the statute, which requires publication of notice, three weeks successively.</p> <p>3. Same. It is not necessary that six weeks should intervene between the first day of publication of notice and the first day of the term ; it is only necessary that six weeks should intervene between the first day of publication of notice, and the day upon which an application is made to that term of court for an order to sell.</p> <p>4. Petition—of an order of court to sell lands. A petition by an administrator to the circuit court for an order to sell lands to pay debts, stated the amount of personal assets, and of debts allowed against the estate, showing a deficiency in the former, and, on objection to the petition, that it did not show that the petitioner had made out a just and true account of the personal estate, and that the personal property was insufficient: Meld, that these were matters for the</p> <p>consideration of the probate court, and where the judge of that court has certified, in the usual form, the amount of assets, and the amount of claims allowed against the estate, showing a deficiency of personal assets, such evidence will justify an order of sale of the real estate.</p>

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

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

Silas L. Bryan, Judge, presiding. This was an action brought by the city of Centralia, against Charles W. Patten, for an alleged violation of a city ordinance, in keeping open a tippling house on Sunday. A trial before a police magistrate of the city resulted in a verdict of guilty, and judgment was entered against the defendant for $10 fine, and costs of suit.

<p>Appeal from the Circuit Court of Crawford county; the Hon. Hiram B. Deoius, Judge, presiding.</p>

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

<p>1. Criminal Law—jury judges of the law and fact. Under our statute, juries in criminal cages are judges of the law, as well as of the fact, and they have the right to pronounce upon the law, as it may seem in their opinion to be.</p> <p>2. Same—self-defense. While the doctrine is, that a man, threatened with danger, must determine from appearances, and the actual state of things surrounding him, as to the necessity of resorting to self defense, and if he acts from reasonable and honest convictions, he will not be held responsible, criminally, for a mistake as to the extent of the actual danger, where other judicious men would have been alike mistaken ; at the same time, he has not the right to provoke a quarrel and take advantage of it, and then justify the killing of the party with whom he has provoked the quarrel.</p> <p>3. Same—of threats by deceased. Where a party on trial upon the charge of murder, defends upon the ground that he acted in self-defense, evidence that the deceased had a bowie knife inside of his coat only a short time before the killing, and that he declared he would cut the accused’s heart out with it, would have no weight with the jury, it not being shown the prisoner knew the facjt, or acted upon the suspicion of its existence, and it appearing the deceased had no evil designs toward the accused, but rather that the latter sought the difficulty in which the killing occurred.</p> <p>4. Same—of exculpation of the accused by the deceased. And in such a case, the dying declaration of the deceased, that he did not wish the accused hurt for what he had done, and that accused had done nearly right, affords no evidence of anything more than a Christian spirit of forgiveness toward one who had done him great wrong, and a new trial would not be granted for the purpose of enabling the accused to prove such declaration, upon the ground that it was newly discovered evidence.</p> <p>5. New trial—newly discovered evidence. A new trial will not be granted merely to afford a party an opportunity to introduce newly discovered testimony, which is not conclusive in its character, but only cumulative, and the rule is the same in criminal cases.</p> <p>6. Same—-for misconduct of the jury. It is the duty of an officer in charge of a jury in a criminal case, when at their meals or sleeping, to keep them entirely removed from the company of others. It is indiscreet to permit them, during a meal or when in their lodging room, to be in company with others; but unless it is clearly shown they were, by such exposure, operated on in some way to the prejudice of the prisoner, a judgment of conviction will not, for that cause alone, be reversed.</p>

<p>Writ of Error to the Circuit Court of Monroe county; the Hon. Silas L. Bryan, Judge, presiding.</p>

<p>1. Change oe tenue—in proceedings by quo warranto—whether a matter of right, or discretion. Upon an application for a change of venue in a proceeding by quo warranto, the party making the application showing all the facts requisite to the allowance of a change of venue, it is not a matter of discretion with the court to. grant or refuse the application; but the party is entitled to .a change of venue as a matter of right.</p> <p>2. Construction—of act of 1861. . The act of 1861, giving the court discretionary power in that regard, in reference to certain criminal proceedings, does not embrace a proceeding by quo warranto, that not being criminal in its character.</p> <p>3. Boundaries—of riparian owners. The line of the riparian owner of land in this State, bounded by the Ohio river, extends at least to low water mark.</p> <p>4. Riparian owner—of Ids rights between high and low water mark. The riparian owner, thus having the title to the land between high and low water mark, and the right to the exclusive use thereof, has the right to establish a private wharf thereon, and make reasonable charges for its use by those navigating the river.</p> <p>6. Same. While the property of the riparian owner in the bed of the river to the flum aquas, is subservient to the use of the public as a highway, for purposes of navigation, still the banks of the river are not under, or subject to, that servitude. To be entitled to the use of the banks, the right must be acquired by agreement, prescription, or grant.</p> <p>6. Same. The riparian owner having the right to the exclusive use of the banks to low water mark, a person navigating the river cannot land against the will of the riparian owner, and becomes a trespasser if he does so without his consent.</p>

Wbit of Eebob to the Circuit Court of Clay County ; the Hon. Aabon Shaw, Judge, presiding. This was a bill in chancery, to set aside a sale of real estate claimed as a homestead. The complainant resides in Marion county, and the premises in dispute are situated in Clay county. On the 15th of December, 1863, and for along time prior thereto, McConaga was the owner of two lots in the town of Zenia, and was at that time, and now is, the head of a family.

Clair County; the Hon. Joseph Gillespie, Judge, presiding. This was an action of assumpsit upon a promissory note. The declaration contained a special count and the common counts. To the common counts the defendants pleaded the general issue, and filed a demurrer to the special count. The court overruled the demurrer and rendered final judgment for the plaintiffs upon the demurrer.

<p>1. Secondary evidence—in case of lost patent. Where a party in ejectment relies upon a patent title, and alleges the loss of the patent, the book filed in the county clerk’s office, giving the names of purchasers and the date of each entry of land in the county, not certified to by the register of the land office, is not admissible in evidence to prove the entry of the land.</p> <p>2. Evidence—attacking judicial proceedings collaterally. Where the court has jurisdiction of the subject matter and of the parties, and has adjudicated in the case, that determination cannot be attacked collaterally, however erroneous.</p> <p>But, if the jurisdiction were wanting, the decree and proceedings under it would not bind any one, and may be attacked in any legal proceeding.</p> <p>3. Evidence in ejectment—where parties claim from a common source of title. Where the parties in ejectment both claim from a common source of title, it is not necessary for either to trace title beyond such common source.</p> <p>4. Rebutting evidence—what constitutes. Where a defendant in ejectment sets up the statute of limitations, the plaintiff may show, in rebuttal thereof, that the persons under whom he claims were minors, against whom the statute could not run. Such evidence on the part of the plaintiff is properly rebutting, and not evidence in chief.</p> <p>6. Married women—administratrix—power to convey land. An administratrix who is a married woman, may convey land in her fiduciary capacity, without her husband joining therein.</p> <p>6. Grantee oe minor heirs—statute of limitations. Where persons, who have inherited title to land, were in their minority at the time their title accrued, and afterwards conveyed the land to a third person, such grantee, in asserting his title in ejectment, as against a person defending under the statute of limitations, may show the disability of his grantors at any time within the statutory period, and thus prevent the bar.</p> <p>1. The statute of limitations does not begin to run until the disability is removed, and the statutory period must elapse after the disability ceases, before there can be a bar under the statute, and the rights of the grantee in this regard would be the same as to any one or more of the heirs, to the extent of the interest of such heir or heirs in the premises.</p> <p>8. Same—his rights in this regard—uniiJce avoidance of contracts. The rights of the grantee in such case, to set up the minority of his grantors, to avoid the bar of the statute, is unlike the plea of infancy, in which it is sought to avoid a contract—the right to avail of such a plea being personal to the party claiming such disability.</p> <p>9. Color of title—what constitutes. Where a deed, purporting to convey title, was executed under a decree of a court having general jurisdiction, and by a person having power to execute the decree, such deed is color of title; and this, notwithstanding the decree may have been erroneous, or even void for want of jurisdiction.</p>

Wbit ob Ebbob to the Court of Common Pleas of the city of Cairo; the Hon. John Olney, Judge, presiding. This was an action of assumpsit, upon a promissory note, brought by Garrett Clawson, against Edward T. Boss and George M. Hinckley.

<p>1. Judicial sale—setting same aside at instance of the purchaser. Where the plaintiff in an execution procured a sale of real estate of the defendant, to be made thereunder, and himself became the purchaser, filed his bill in chancery to set aside the sale, on the alleged ground that the defendant had a homestead right in the premises, and were therefore not subject to sale; in answering the bill, the defendant disclaims having any right of Homestead in the premises, and it not appearing that any homestead right did exist, the bill was properly dismissed.</p> <p>2. While the court might properly have directed the defendant in such case to bring into court a deed of release of homestead in support of his answer, it had no right to require the complainant to accept such deed in discharge of any real or supposed liability on the part of the defendant; this should be left optional with them.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. John Olney, Judge, presiding.</p>

<p>1. Service of process—in chancery. The statute requires that service of process in chancery be by copy—service by reading, is not sufficient.</p> <p>2. Preserving evidence—upon which a decree is founded. The record of a chancery proceeding must preserve the evidence upon which a decree is based either by a bill of exceptions, or by recital in the decree that certain facts were found.</p> <p>8. Decree'—recitals. It must appear from the record that the court heard evidence and found the allegations of the bill to be true.</p> <p>4. So, where it appears that premises, whereof a partition is sought, are incumbered, but the record does not show that, proof was heard of that fact—such a record is erroneous.</p> <p>6. Reference to master. Where a case is referred to the master for proof and computation, he should report the facts, as proved before him, and the amount found due, to the court; he has no right to adjudicate upon such questions.</p> <p>6. Infant defendants—strict proof required. Nothing can be admitted, but every essential particular must be proved, against infant defendants, whether they answer by guardian ad litem or not.</p> <p>7. Master—acting as solicitor. It is error to refer a case to the regular master when he is acting as solicitor in the case.</p> <p>8. Attorney’s fees—whether taxable as costs. In a suit in chancery for partition of lands, the fees of the attorney for the complainant are not taxable as costs.</p>

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

<p>1. Scire facias—judgment on when principal not served. Where a forfeiture is taken upon a recognizance and a scire facias sued out, it is error to render final judgment thereon, against both principal and bail, where the former is not served, unless there has been a return as to him of two nihils, or his appearance has been entered.</p> <p>2. Variance—misnomer. Where the principal in a recognizance is, in the body thereof, named as Joseph Little, and it is executed in the name of Joseph Lytle, it is not error to admit such recognizance as evidence under a scire facias against Joseph Lytle, reciting the execution of the recognizance by the latter name.</p> <p>3. Had the name in the body of the instrument been so far different as to have indicated that the person executing it might not be the same person named in the body, the scire facias should have contained an averment of identity.</p>

Silas L. Bryan, Judge, presiding. In this case, John Lux filed a bill in chancery, in the court below, reciting that complainant was sole surviving heir of Barbara Hoff, deceased; that said Barbara was the mother of complainant, and was formerly the wife of John Lux, the father of complainant, and that in March, 1856, she intermarried with Midiólas Hoff, the defendant; that in Movember, of said year, she and her said husband purchased, with money belonging to said Barbara, a…

Silas L. Bryan, Judge, presiding. This case was before this court at the June term, 1867, when the decree was reversed and the cause remanded. The case is reported in 44 Ill. 455, where a statement of the facts may be found. Upon the cause being remanded to the circuit court, a decree was rendered in conformity with the views of this court, as there announced. The defendants below again bring the cause to this court by appeal.

<p>1. Chancery—of a substituted bill. Where an original bill in chancery is lost| and a bill is substituted, the substituted bill should, of itself, contain all the material allegations necessary to justify the relief sought, without reference to the original bill.</p> <p>2. Fraud—of a proper allegation thereof. Where the bill alleges fraud against the payee and assignees of a note, in the' assignment of it, to avoid garnishment or enjoining of payment, the bill should aver the material facts upon which the allegation of fraud is based.</p> <p>3. Fraudulent transfer of note—assignee must participate. Where it is alleged that the assignment of a note was fraudulent, for the purpose of hindering and defeating the creditors of the original holder, it must appear that the assignee participated in the fraud, in order that the assignment may be set aside.</p>

<p>1. Liens, priority of—judgment over unrecorded mortgage. Where a judgment lien attaches to premises upon which there is a mortgage, but the latter is not recorded, the judgment takes priority over the mortgage, unless the judgment creditor is otherwise chargeable with notice of such mortgage, prior to .the rendition of bis judgment.</p> <p>2. Erroneous judgment—effect of reversed. The rights of third parties, acquired under an erroneous judgment, cannot be divested by a subsequent seversal.</p> <p>3. So, a vendee at an execution sale, being neither a party to the judgment nor chargeable with notice of error, cannot be aifeeted by a reversal.</p> <p>4:. Nor can an innocent assignee of the certificate of purchase, though the rasignor was a party to the judgment, be aifeeted by a subsequent reversal of the judgment.</p>

<p>1. Express trusts—evidence in support of. A bill setting up an express trust in the proceeds of a promissory note, is not supported by proof of an intention to create a trust, which was never executed.</p>

<p>Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding.</p>

<p>1. Plea in abatement—by a corpm-ation. A plea in abatement by a corporation aggregate must purport to be by their attorney. A plea which says that the company, “by its President and Secretary comes and says,” &c., is defective, and obnoxious to a demurrer.</p>

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

Writ of Error to the Circuit Court of Marion County; the Hon. Silas L. Bryan, Judge, presiding. ' This was a proceeding by defendants in error to set aside conveyances of property to Mary A. Sweeney, wife of Thomas M. Sweeney. The facts set up in the bill, and the answer to the defendants below, the ruling of the court thereon, and the errors assigned on this record, are fully set out in the opinion, and need not be here repeated.

<p>1. Chancery practice—modifying dea-ee. If it is brought to the knowledge of the court, before which a chancery proceeding is still pending, that a decree previously rendered in the case is unjust or oppressive, it is not error for the court to modify the decree in accordance with the new facts brought before it.</p> <p>2. Same—affidavits as evidence. Where a motion is made to modify a decree which is still pending in court, and affidavits are submitted on both sides, touching the equities involved in the proposed modification, this court will hold that such proceedings were had by consent.</p> <p>3. In such case, the proper practice would be, to either refer the case to the master again, or hear it again in court, upon proof regularly offered, but if parties consent to a different mode of exhibiting the facts, the error will be thereby waived.</p> <p>4. Partition—apportioning rents. Though it is true that a court of equity has jurisdiction in cases of partition, and may, in the same suit, enter a decree in favor of a co-tenant, for rent in arrear, the claim for rent in such cases must be well established.</p>

<p>1. Construction of - statutes—railroad company fencing against stock. The statute which requires railroad companies to make and maintain fences. “ sufficient to prevent cattle, horses, sheep and hogs from getting on such railroad,” is not a penal statute, but remedial, and will receive a liberal construction.</p> <p>2. Killing stock—mules and asses included in the term cattle. Railroad companies, under the act above referred to, are liable for killing mules and asses, these animals being included in the terms, “ óattle and horses.”</p>

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

Writ oe Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an indictment against Thomas Horton, charging him with obtaining money by means of the confidence game.

<p>Writ of Error to the Circuit Court of Clinton county ; the Hon. Silas L. Bryaet, Judge, presiding.</p>

John Olney, Judge, presiding. This was.a biil in chancery for an injunction to restrain and prevent the removal of the county seat of Pulaski county, from Horth Caledonia to Hound City. On the hearing, the bill was dismissed, and the cause was brought to this court on appeal. The facts are sufficiently stated in the opinion.

<p>1. Chancery procedure—dissolving injunctioris. Where defendants in a bill in chancery move to dissolve an injunction, and such motion is overruled, and they then answer the bill, they cannot assign the overruling of their motion as error.</p> <p>2. Same—amendments. It is the practice of courts of chancery to allow amendments to a bill before an answer is filed, and in many cases after, and before a replication is filed; the court in its discretion may allow amendments at any time.</p> <p>3. Same—exceptions—proceedings after exceptions. Where exceptions taken to an answer are sustained, the proper poetice is to take a rule upon the defendants to file a further answer within such time as the court shall direct; and upon failure to comply with the rule to take the bill as confessed.</p> <p>4. Chancery pleading. Where an answer sets up a justification of the acts complained of, but does not show by virtue of what right, title or authority the defendants performed those acts, exceptions are well taken.</p> <p>5. So where an answer sets up matters of law instead of matters of fact, exceptions are well taken.</p> <p>6. Chancery jurisdiction—in cases of purpresture. Where an injury of a public nature is threatened, as the inclosure of a highway, whereby public travel is in danger of being interrupted, and thereby great numbers of the citizens subject to petty loss and annoyance, by reason of such obstruction, a resort to chancery is proper, and is more effectual than the remedy at law.</p> <p>7. Plank roads—public highways. Plank roads are undoubtedly public highways, and differ from common highways in the mode of construction, and the taking of tolls, and on the payment of t-lie latter travellers have the same right to use them they have to use other highways.</p> <p>8. Same—closing up against the public. Where a plank road has been used for a number of years by the public, and the company have used a portion of a public highway as their roadway, causing the public road to be closed up to divert travel to their road, they cannot close up their road against the public.</p> <p>9. Same—selling to the county. The provisions of the statute in relation to the selling of plank roads to counties, on the expiration of the charter of the road, does not confer any authority ,on the company to close up such road until the county purchases.</p> <p>10. Same—-forfeiture or abandonment of charier. Where the company forfeit their charter, or abandon it, or suffer the road to so become out of repair as to amount to an abandonment, the right of way of the company ceases and the road becomes a common highway.</p> <p>11. Same—abandonment. So where the lessees or assignees of a company publish a notice, that owing to the bad condition of the road, the high price of materials and labor, they cannot profitably keep up the road at the prescribed tolls, and that unless the county bought their entire interest to roadway, bridges, plank, toll gates, &c., the road would be closed up as private property: Held, that such notice was in effect an abandonment of the road, and that it became a common highway.</p>

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

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

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

<p>Writ of Error to the Circuit Court of Kane county; the Hon. Richard G. Montony, Judge, presiding.</p>

Edwin S. Leland, Judge, presiding. This was an action on the case, brought by the appellee, against the appellants, in the Circuit Court of Peoria county, to recover damages for alleged injuries sustained by appellee, while attempting to cross the track of appellants, from a collision with one of its trains. The cause was tried before a jury, who found a verdict for the plaintiff for $760.00.

<p>1. Contracts—rescission, duty of parly on. The general rule is, and as announced by this court in several cases, that a party can not rescind his contract without restoring to the other whatever he has received under it.</p> <p>2. Former decisions. Buchenau v. Horney, 12 Ill. 336; Smith v. Doty, 24 ib. 165, and Gehr v. Hagerman, 26 ib. 441, cited in support of the rule.</p> <p>3. Insurance — the policy and its conditions — of the power to cancel—return of unearned premium, a condition precedent. Where, by the conditions of a policy of insurance, the right to cancel the same is reserved to the company, upon the happening, or doing, of certain things therein enumerated, it is incumbent upon the coihpany, before a valid cancellation can be had, to tender to the assured the amount of the unearned premium, with the notice of such action,—the tender being precedent to the exercise of the right of cancellation.</p>

Writ of Error to the Circuit Court of Cook county ; the Hon. Erastus S. Williams, Judge, presiding. This case was originally heard at the September term, 1861, and is reported in 45 Ill. 341. It comes before the court at this term upon a re-hearing.

<p>Writ of Error to the Circuit Oourt of DeKalb county; the Hon. Theodore D. Murphy, Judge, presiding.</p>

This was a bill in chancery, originally filed in the Circuit Court of LaSalle county, by the appellant, Isaac Cook, against the appellees, Joseph Stout, Mary E. Stout, James Cotton and Henry Gr. Cotton, praying that a sheriff’s deed to Henry G. Cotton, for certain premises, be set aside. The court rendered a decree setting aside such deed, and appointed a special master'to take testimony in relation to the waste committed on the premises.

Writ op Error to the Recorder’s Oonrt of Chicago; the Hon. E. Van Burén, Judge, presiding. McDonald was arraigned and tried upon the charge of arson. The indictment charged him with setting fire to his own dwelling-house, which was insured in the “ Western Insurance Company of Buffalo.” The jury returned a verdict of guilty.

<p>1. Statutes—construction of the joint resolution of the General Assembly of 1867—relative toprinting Adjutant General’s reports.—The publication of certain reports of the Adjutant General, authorized by the joint resolution of the General Assembly of 1867, was not intended to be done by the public printer, on the terms of his contract with the State, for the public printing, but was special work, for which, by whomsoever performed, the price specified in the resolution could only be charged.</p>