Volume 48 — Illinois Reports

William W. Heaton, Judge, presiding. This was a suit in chancery, brought by the ap>pellees, Asa M. Abbott and Isabel Harrison, as administrator and administratrix de bonis non, of the estate of John Harrison, deceased, against the appellants, John E. Duffin and David Summers, and one Ora B. Crosby, to correct mistakes in the bond of the defendants, given by them as the administrator’s bond of Ora B. Crosby, when he was the administrator of said estate, whose letters had…

Joseph E. Gary, Chief Justice, presiding. This was an action of ejectment, brought, in the court below, by the appellant, Isaac Cook, against the appellees, Jehiel F. Horton, and Emily M. Horton, his wife, Grace Josephine Clark, Julius Wilkie and others, to recover an undivided twotliirds of lot 8, block 23, in the original town of Chicago.

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

<p>1. Arbitration and award—what not considered as an award. A policy of insurance provided that, “ if a difference of opinion should arise between the parties hereto, as to the amount of loss or damage, the subject shall be referred to two disinterested and competent men, each party to select one, (and in case of disagreement they to select a third,) who shall ascertain, estimate and appraise, the loss or damage, and their award in writing shall be binding on the parties.” A loss having occurred, H, an agent of the company, requested one F to select some one to make the appraisal for each party, whereupon R and P were selected, and thereupon H, R and P made an estimate in writing of such loss, which was signed by H and R only. These proceedings were without the sanction of S, the insured. Meld: in action by him to recover the loss, against the company, that this was not an award under the policy,—the proof showing that such arbitrators were not selected by the parties; that they were not 11 disinterested,” as H, one of them, was the agent of the company, and that P, another, was not “ competent,” he being a drinking fellow “ of no account.” That the pretended award was signed only by H and P, and that being signed by H, an interested party, robbed it of all validity.</p> <p>2. Accord and satisfaction—what is not. Nor in such case would a tender afterwards of the amount estimated to be due to S, the insured, amount to an accord and satisfaction, there being no proof that S agreed to such proceedings.</p> <p>3. Same—definition of. Accord is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon this account.</p> <p>4. Insurance—in preliminary proofs—articles destroyed omitted from—may be recovered for in suit upon the policy—when such omission was inadvertent. When a party in making his preliminary proofs of loss, inadvertently omitted mention of certain articles which were destroyed, he may, if the claim is not paid, and suit is brought, recover in such action for the articles destroyed, but omitted in such proofs.</p>

John A. Jameson, Judge, presiding. This was a proceeding in chancery, instituted hy the appellant against the appellee, in the Superior Court of Chicago, to compel appellee to pay certain checks drawn upon it by one George M. Allen, and which checks, it was alleged, appellee had promised appellant it would pay, and which were thereupon taken by appellant on the faith of such promise, for a cargo of corn sold to Allen.

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

<p>1. Taxes—lien of—-when attaches. Under the revenue law of 1853, the lien of the State for taxes, attaches to lands on the first day of May of each year, that day being the one fixed by the statute when the owners are required to list their lands for taxation.</p> <p>2. Same—unpaid—an incumbrance upon land. Unpaid taxes are an incumbrance upon the land on which they have been assessed.</p> <p>3. Covenants of title—against all liens, taxes, assessments and incumbrances. In an action for a breach of covenant in a deed, executed Oct. 18th, 1865, when the grantor covenanted that the premises conveyed “ were free and clear from all liens, taxes, assessments and incumbrances of every kind”: ITeld, that the action would lie for refusal to pay the taxes of that year, the lien for which existed when the deed was made, upon such payment being made by his grantee.</p> <p>4. Same—no objection that irregularities in the assessment occurred. And in such case, it is no objection that the premises were not properly listed for taxation for that year, that there was no legal levy of taxes upon them, in consequence of their having been misdescribed, and hence the taxes were not collectable for that year; there being a lien upon them for such taxes, which was removed by the grantee, his right of action became perfect.</p> <p>5. Evidence—of records. And in such case, a plat of the premises is admissible in evidence, for the purpose merely of showing upon what part thereof, the taxes had been paid, without a compliance with the requirements of the statute, in cases where such proof is offered as a muniment of title.</p>

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

<p>Appeal from the Circuit Court of DuPage county; the Hon. Silvxnus Wilcox, Judge, presiding.</p>

<p>1. Contracts—construction of a particular contract Where B, under an agreement with P, received the use and possession of a certain number of sheep, for a specific time, at an agreed price, and stipulates therein, among other things, that at the expiration of the time he would return to P, “ in good marketable condition,” the same number of the same breed of sheep, which he had received, together with the increase thereof, or the increase of the same animals left with him, and the sheep so delivered to B, under the contract, were, after their receipt by him, found to be diseased: Held, the true construction of this agreement, as to kind of sheep to be re-delivered, is, that the sheep returned by B, shall be as “ good and marketable” as can reasonably be expected, the animals being diseased.</p> <p>2. Same — when may be affirmed or rescinded, after a discovery of fraud, and damages arising from the fraud recovered by separate action or recouped. And in such case, when the contract had been partially executed, before B discovered the fraud which had been practiced upon him, by delivering to him diseased sheep, he had the option either to affirm or rescind the contract, reserving his claim for damages arising from such fraud, either by a separate action, or claiming them by way of recoupment, if sued upon the contract.</p> <p>3. Recoupment—when allowed. The established doctrine is, that recoupment will be allowed whenever an action for damages, arising out of the subject matter of the suit, can be sustained, and thus avoid circuity of action. Courts will favor recoupment, rather than drive a party to a separate action.</p> <p>4. Former decisions. Stowr. Yarwood, 14 Ill. 424; Brigham v. Hawley, 17 ib. 38 ; Schuchmann v. Knoebel, 27 ib. 178 ; Sanger v. Fincher, 28 ib. 347 ; Bates v. Gourtwrighiet al., 36 ib. 518 ; Bunn v. Gage, 37 ib. 19, and Wright v. Battin el al., 38 ib. 293, cited in support of this doctrine.</p> <p>6. Jury—affidavit of juror can not be heard to impeach, but may be to sustain verdict. The rule is well settled, that the affidavit of a juror can not be heard to impeach their verdict, but can be to sustain it</p>

<p>!• Partnership—when one partner sells his entire interest to his co-partner—purchaser may use lite property to pay his individual debts. When one partner sells kis en*ire interest in the firm to his co-partner, the _ purchasing partner may appropriate the property to the payment of his individual debts, discharged of any claim or equity of the partnership creditors.</p> <p>2. Nor will it invalidate the transaction, that such purchase was made with the express intention of turning over the property to the creditor of the purchasing partner, in payment of an individual debt.</p> <p>3. The partners are the owners of the property', free from any lien of their creditors, which can only attach through the partners, and they' have a legal right, either by purchase or otherwise, to surrender partnership property in payment of the demand of an individual creditor.</p> <p>4. Former decision. These principles are fully recognized in the case of Ladd v. Griswold, 4 Gfilm. 36.</p> <p>6. Partnership—effect of agreement by purchasing partner that he will pay the firm debts. And in such case, a promise made by the purchasing partner that he will pay the firm debts, creates only a personal obligation, and not a lien on the partnership effects, which may still be used by him in payment of his individual debts, and when so applied, the individual creditor taking them without notice of any such promise, stands in the position of a purchaser for a valuable consideration, and holds the property, discharged of all lien on the part of the firm creditors.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. Johh A. Jamesoh, Judge, presiding.</p>

Joseph E. Gaby, Judge, presiding. This was an action of assumpsit, brought in the court below by the appellees against the appellants, to recover the price of four hundred and forty-seven dry hides, sold under an alleged special contract. The cause was tried by the court, a jury being waived, and a finding and judgment for $120.95 for the plaintiff had, whereupon the defendants appealed to this court.

William A. Porter, Judge, presiding. This was an action of assumpsit, brought by the appellees against the appellants, in the Superior Court of Chicago, to recover for the labor and materials alleged to have been furnished in repairing certain boilers belonging to appellants. Tlie further facts in the case are stated in the opinion.

<p>1. Chattel mortgage — execution liens. Where a debtor executed a mortgage on chattels to secure a debt, and, by the terms of the instrument, was authorized to retain possession of the property until the 1st of July, lSGI, but it was acknowledged before a justice of the peace, in a different justice’s precinct from that in which the mortgagor resided, and was never recorded; and it appeared that an execution was issued against the mortgagor, and placed in the hands of a constable, on the 12th of June, of that year: Held, that the execution became a prior and better lien on the property, inasmuch as the mortgage, although binding on the parties to it, was fraudulent in law, as to creditors and purchasers, and the property could be seized and sold on the execution.</p> <p>2. Replevin—levy under an execution. Where, in such a case, the constable made a levy on the mortgaged property, and the mortgagee brought replevin for its recovery, the constable may successfully defend under the execution and levy. Nor would the promise of the beneficial plaintiff, that if the mortgagor would delay, for a specified time, in reducing the property to possession, he would pay his debt, being without consideration, release or discharge the lien of the execution.</p>

<p>1. Mechanic’s lien—recovery can not be had beyond the amount claimed in the petition. In a proceeding to enforce a mechanic’s lien, under the act of 1863, the plaintiff recovered the amount claimed in his petition, together with forty-seven dollars as interest thereon: Held, that the judgment was erroneous, to the extent of such sum beyond the amount claimed; if plaintiff was entitled to interest, he should have claimed it in his petition; he could not recover beyond the amount so claimed.</p> <p>2. Same—-act of 1863, construction of ’. Where a party contracted to pay for the work and materials on a certain building, as the work progressed, reserving the right to retain ten per cent., for his own security, and before the building was completed paid the contract price in full: Hdd, that such owner was not liable for work performed by an employee of such contractor, begun and completed nearly two months after such payment in full; that having once paid for it, he was discharged from payment a second time.</p> <p>3. Same—notice and specifications must be filed, to stop payments to original contractor. In order to prevent an owner from making payment to the original contractor, such sub-contractor must, as required by the second section of the act, file liis specifications, and give the proper notice ; otherwise, payment can not be prevented.</p> <p>4. Insthuctions—must be based upon the evidence. An instruction which has no basis in the evidence is erroneous.</p>

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

<p>1. Deed—not recorded—possession, notice. Where a patentee of land conveys the same by deed, which was not recorded, and subsequently again conveys the same to another person, but the first grantee had taken open and visible possession before the junior deed was recorded: .Held, that a grantee, deriving his title from the junior deed, and while the grantee of the elder deed was in possession, could not recover in an action of ejectment against the tenant of the elder grantee, as his possession was notice, and equal to recording the elder deed.</p> <p>2. Former decision. The case of Warden v. Williams, 24 Ill. 6Y, held, not ’ to control this case.</p>

<p>1. Negligence—action for, mil not lie against the board of trustees—must be foought against the State intsiee. In an action on the case brought against the board of trustees of the Illinois and Michigan Canal, to recover damages for the loss of a canal boat, occasioned, as alleged, by the negligence of the defendant: Held, that the action was alone maintainable against the State trustee, and would not, therefore, lie against the defendants as a board of trustees.</p>

<p>Writ or Error to the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding.</p>

Erastus S. Williams, Judge, presiding. This was an action on the case, bronght by the appellee against the appellant, in the court below, to recover for injuries received and occasioned, as alleged, from the negligence of appellant, in not keeping its streets in a safe and suitable condition for persons traveling thereon. The case was tried before the court and a jury, and a verdict of $1,311.00 rendered for the plaintiff.

John S. Thompson, Judge, presiding. This was an action of assumpsit, brought by McCoy against Claycomb, for money paid by McCoy, a collector of taxes, in discharge of the delinquent taxes of Claycomb, at his request, and upon his promise to refund the money in a short time, with interest. The declaration counted for money had and received by the defendant for the use of the plaintiff, to which the defendant pleaded the general issue.

<p>1. Partition—of the title required. As a general rule, courts will refuse to make partition of land between parties claiming to be tenants in common, unless it clearly appears that the several persons claiming to be owners, hold title to the premises.</p> <p>2. So, where the party seeking partition under the statutory proceeding for that purpose, shows merely a prima facie title, arising under color of title, possession and payment of taxes for seven years, he cannot obtain the relief sought. To authorize a partition in favor of one holding under that character of title, it should appear that the persons holding the adverse title were not under disability, and that their title was undoubtedly barred.</p> <p>3. Remedy in chancery—in suck case. The person holding such prima facie title, might, no doubt, file a bill in chancery against those claiming adversely, making them and the other tenants in common parties, and have such adverse claim removed, as a cloud upon his title, and then obtain partition.</p>

James Harriott, Judge, presiding. This was an action of assumpsit, brought in the court below by the appellee, George B. Foster, against the appellant, Peter Weyhrich, to recover certain moneys alleged to have been paid out and expended for the use, and at the request of, the appellant. A trial had at the June term, 1868, resulted in a verdict for the plaintiff for $1,475.00.

Writ oe Error to the Circuit Court of Henry county; the Hon. Ira 0. Wilkinson, Judge, presiding. This was a suit in chancery, brought in the court below, by FTewhall, against Humphrey, Turner, FTandain, Allen and Peterson, to foreclose a mortgage given to secure a note executed to Hewhall, by Humphrey & Turner, for §1,750. Humphrey, being a non-resident, was served by publication; the other defendants were personally served.

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

<p>1. Husband and wife—liability of husband for wife's debts. The act of 1861 for the protection of married women in their separate property, has not changed the law which renders a husband liable for the debts of the wife contracted before the marriage. Being entitled to her labor, skill and earnings after the marriage, he is held liable to pay her debts contracted before their marriage. The case of Connor v. Berry, 46 Ill. Zl0, approved and applied'to this case.</p>

<p>Writ of Error to the Circuit Court of Marshall county; the Hon; Samuel L. Richmond, Judge, presiding.</p>

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

<p>1. Promissory note—failure of consideration. Where a party in selling a brewery, fixtures and utensils, and a quantity of beer, represented that the beer was of good quality and merchantable, and was of the value of eight thousand dollars, and it appears that had it been of that quality it would have been worth that sum, when in fact about three-fourths, of the beer was spoiled and worthless, and it was worth but two thousand dollars,; and it appeared that the seller, in showing the beer to the purchaser, only exhibited a sample of the portion that was merchantable, and received a part of the purchase money, and took the note of the seller for a less sum than the loss occasioned by the beer not being merchantable : Sdd, that such facts would constitute a failure of consideration for the note.</p> <p>2. Same—evidence. Since the statute has given the defense of want, or failure in whole or in part, of the consideration of a note, such a defense may be proved by verbal testimony, without violating the rule that a written instrument cannot be contradicted, or its terms altered or varied, by parol. The statute has, in this respect, introduced an exception to the common law rule of evidence.</p>

Writ of Error to the Circuit Court of Kankakee county; the Hon. Charles H. Wood, Judge, presiding.

<p>Appeal from the Circuit Court of DeKalb county; the Hon. T. D. Murphy, Judge, presiding.</p>

Writ of Error to the Circuit Court of Grundy county; the Hon. Josiah McRoberts, Judge, presiding. This was an indictment for an assault and battery.

<p>1. Replevin—action of—will not lie except against a party who takes and detains. D executed his note, together with a chattel mortgage on certain property, to H, the possession of the property remaining with D, but which mortgage was never recorded. G, the sheriff, levied execution on the property in the hands of D, in favor of L, a judgment creditor of D, and thereupon D executed to G a delivery bond, with H, the mortgagee, as security, he, H, then turning the property over to the possession of D, to keep for him. While the property was thus situated, H, the mortgagee, sued out a writ of replevin against G, the sheriff. Held: That the action would not lie against the sheriff, the property being in the possession of D at the time the writ issued.</p> <p>2. Mortgage—unrecorded—no lien as against an execution creditor. That the mortgage, not having been recorded, constituted no lien on the property as against L, the execution creditor, he having no notice thereof.</p>

<p>1. Evidence—■parol evidence to show agents authority. Where the question is, as to the extent of an agent’s authority, under a certain letter written him by his principal, and such letter refers to former conversations had between the parties, and is obscure but for the light thrown upon it by such conversations upon the same subject, it is indispensable for a correct solution that the jury should consider such previous conversations, in connection with the letter, and so ascertain the extent of the authority previously conferred, and its limitations.</p>

<p>1. Dower—decree — award when a bar. Where parties were divorced, and the court decreed the husband to pay an annual sum, as alimony, to the wife, and the parties subsequently selected arbitrators to divide the property, who award to the wife her share, specifying it, and declared that it should be received by her in full of her share, part and proportion of the property then belonging to her, or to which she was then, or might be, entitled in her husband’s property, previously held, as well as such as he then owned, and the parties had the award, so rendered, entered up as a decree in the divorce case; Held: that upon the death of the husband, this decree bars the widow from claiming dower in the premises previously sold on execution against the husband. And it can not be urged that the award was broader than the submission, as the award has been merged into and become the decree of the court, and can not be questioned in a collateral proceeding. In such a case, the only question is, what does it find and determine.</p>

<p>1. Landlord and tenant—ejectment against the latter. A judgment in ejectment against a tenant, of which the landlord has had no notice, is in no wise conclusive upon the latter.</p> <p>2. The statute requires that whenever a tenant is sued in ejectment, he shall notify his landlord of such suit, and if he fails in the performance of this duty, and a judgment is rendered against him, in favor of a third person, he will hot be permitted either to attorn to such person, or purchase his title, and set it up against his landlord..</p> <p>3. Same—when, landlord fails to defend possession of tenant afta' notice. But if the landlord, after notice of such suit against his tenant, fails to protect him in his possession, the tenant may then protect himself, by purchasing the paramount title, or by taking a lease under it.</p> <p>4. Same—tenant cannot attorn to—or purchase a stranger’s title. Although a tenant may attorn to a purchaser of his landlord’s title, or purchase it himself, if sold under judgment and execution, yet he cannot attorn to a stranger, or purchase and set up his title against his landlord, although it may be the paramount title.</p> <p>6. Same—possession must be surrendered by tenant—before he can assert title acquired from a stranger. In such case, when the tenant has acquired title from a stranger, he must restore to his landlord the possession he received from him, before he can assert such title against him.</p>

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

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gaey, Chief Justice, presiding.</p>

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

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

<p>1. Contract—of employment, fixing time of, and price—party holding over term adopts the original contract as to price to be paid. Where a party enters the employment of another, under a special contract, fixing the time, and the price to be paid for his services, and continues in such employment after his term has ended, he will be considered as holding under the original contract.</p> <p>2. Same—contract price must govern. And in such case, the contract will control the price, and it is error for the court, in its instructions to the jury, to put the claim for such services, performed after the expiration of his term, upon the basis of a quantum meruit.</p>

<p>1. Instructions—erroneous which assume to decide questions of fact. It is the province of the jury to decide questions of fact, and instructions which assume to decide such questions, or direct the jury as to the weight of evidence, are erroneous.</p> <p>2. Evidence—relative to copy of entries made from books of account. In an action to recover for a quantity of broom corn, the plaintiff on examination produced a paper, purporting to show the weights of the several lots delivered, as also the total weight, a part of which weights plaintiff had himself entered in a book, but which was not produced, and a part entered by another person, in a book kept by him, which book was produced in court, and the entries therein proven by his deposition, which entries corresponded with those shown in this paper: Held, that as to the entries made by plaintiff, the paper was a mere memorandum, to the accuracy of which plaintiff swore from his own knowledge, and his testimony was not objectionable, on the ground that he had refreshed his memory by referring to his book and making this memorandum therefrom. That as to the copy made from such other person’s entries, the book showing the original entries was produced, and they were proven by his deposition, and that if upon a second trial, the witness who swears to this addition, can also swear that he has made it from the figures given in the deposition, this paper will be unobjectionable.</p>

<p>1, Assumpsit—common counts—recovery under, Where a party sold to another a large amount of hay, delivered only a part, but received the money for the full amount» as he was fulfilling his part of the contract; and, after the time for the delivery, as understood by the parties, had expired, the purchaser made out and presented an account, showing the amount of the hay delivered, money advanced, and the balance coming to the purchaser for money over-advanced, and the seller admitted it to be correct: Sdd, that the purchaser could sue and recover such balance under the appropriate common counts in assumpsit.</p> <p>2. Account—balance—interest. In such a case, the parties having balanced the account, the purchaser is entitled to recover interest on the balance ascertained and admitted to be correct.</p>

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

<p>1. Scire facias—to revive a judgment. Where in a proceeding by scire facias to revive a judgment, rendered nil dicit, the defendant pleaded that he filed a plea to the declaration, which was improperly withdrawn by another attorney, without authority, which plea was demurred to and demurrer sustained; it was held, that the demurrer was properly sustained—-the defendant having appeared, was in court, and must be presumed cognizant of the judgment rendered against him, and should then have moved to set it aside, and upon its being denied, could have prosecuted his writ of error. Upon his failure to do this, the judgment was conclusive.</p>

<p>1. Equity—married women's deed. By the revised statutes of Illinois, the law authorizing non-resident married women to convey their lands in this State, was repealed, and was not re-enacted until in February, 1841. A non-resident married woman and her husband, after the' repeal and before the re-enactment, executed a deed for the conveyance of the wile’s real estate in Illinois: Held, that the deed was void as to the title of the wife.</p> <p>2. Same. That in such a case, equity can not compel the wife to execute a valid deed, or restrain her or her grantees after she has become discovert, from enforcing her legal title to the premises. That equity follows the law, but never abrogates or violates its provisions or policy. And when the law has created disabilities, equity will not remove them. To do so would be to violate, and not to follow, the law.</p> <p>3. Same. Where the owner of real estate in Illinois, being a married woman and a non-resident, through the agents of herself and husband, contracted to sell such land while the act of IBS'? was in force authorizing non-resident married women to convey their property, but no deed having been made under the contract, before the law was repealed, she having no authority at the .time her agents made the contract, to appoint attorneys in fact, her deed subsequently made when it was not authorized by law, is not aided by the contract which is itself inoperative.</p> <p>4. Estoppel. A married woman attempting to sell her real estate without authority, is not estopped afterwards to assert her title, because she received the value of the land as purbhase money. Nor can a court of equity hold that a married woman who so acts without suppressing material facts, and has made no false representations to induce the purchase, is guilty of such a fraud as will estop her from asserting her title, notwithstanding her void deed. The law presumes that one dealing with a person under disability, and knowing the fact, intends to incur the consequences of his acts, and equity will not relieve him against them, or otherwise afford relief.</p>

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

Joseph E. Cast, Chief Justice, presiding. This was an action of assumpsit, brought by Butters, in the Superior Court of Chicago, Eeh. 5th, 1868, against Simons, to recover upon two acceptances, bearing date respectively July 20th and 23d, 1855. Such proceedings were had that a judgment was rendered for the plaintiff, from which the defendant appealed.

<p>1. Voluntary conveyances—binding between the parties. A deed or mortgage, voluntarily executed and delivered, is binding at the common law, and cannot be relieved against, as between parties thereto, simply because it is voluntary.</p> <p>2. Foreclosure by scire facias—of defences thereto. In a proceeding by scire facias, to foreclose a mortgage, a want of consideration cannot be shown.</p> <p>3. Fraudulent conveyances—who are bound thereby. When a note is executed without a consideration, and a mortgage to secure the same, with intent to defraud another, it was held, that under the statute of frauds, as between the mortgagor and mortgagee, the mortgage is binding, and is void only as to the party intended to be hindered, delayed, or defrauded. To obtain relief upon the ground of fraud, the party seeking the relief must be free from any participation in the fraud.</p>

Ed win S. Leland, Judge, presiding. This was a proceeding by mandamus instituted in the court below, to compel the City of Ottawa, to maintain, repair, and open and close certain bridges named in the alternative' writ, under an act of the general assembly, of March, 186J. The further facts in the case fully appear in the opinion.

Writ of Error to the Recorder’s Court of the city of Chicago; the Hon. Evart Yan Burén, Judge, presiding. This was a suit for a divorce, instituted in the court below, by the defendant in error, Bridget Keating, against the plaintiff in error, James Keating. The complainant obtained a decree, and the court gave to her, as alimony, the fee of premises belonging to the defendant, besides a sum of money.

<p>1. Pleading.—irregularities cured by trial. Where defendants file pleas of justification and plaintiffs fail to reply and the parties go to trial, they thereby waive the irregularity and cannot assign the want of replications as error in this court.</p> <p>2. Judgment—nunc pro tunc—after death of a sole plaintiff. Where a trial was had in an action of trespass, to personal property, the jury found a verdict in favor of the plaintiff, when a motion for a new trial was entered, but not decided for several months, and in the meantime the plaintiff died, and the court thereupon rendered a judgment nunc pro tunc, as of the term at which the trial was had, but of a date eight days prior to the finding of verdict: Held, that as the action survived to the legal representatives of the plaintiff, under the seventh section of the act in reference to abatement, plaintiff’s death should have been suggested and the suit revived in the name of his representatives, and that it was error to render judgment of a date prior to the finding of the verdict, but being immaterial, a judgment would not be reversed for that reason.</p> <p>3. Evidence—when admissible. The declaration of the vendor of chattels in reference to the character of the sale, made after the execution of a bill of sale, and the delivery of the key of the store, in which the goods were situated, are not admissible to disparage the title of the purchaser. The declarations of the vendor made before and at the time of the sale, are admissible to show the character of the transaction, but not those made afterwards.</p> <p>4. Same—bill of sale—revenue stamp. Where it appeared that the revenue stamp attached to a bill of sale was less than that designated by the revenue law: Held, that it was nevertheless- admissible. In the cases of Latham v. Smith, 45 Ill. 29, and Craig v. Limmock, 47 Ill. 308, it was held that the General Government had power to prevent all unstamped instruments from being read in evidence in the federal courts, but not in the State courts ; and the revenue law only applied to the federal courts.</p> <p>5. Verdict—weight of evidence. A verdict will not be disturbed because the evidence is conflicting; but to do so it must be manifestly against the weight of evidence.</p>

Writ oe Error to the Circuit Court of Tazewell county; the Hon. James Harriott, Judge, presiding. This was an action of replevin, brought, in the court below, by the defendant in error, against the plaintiffs in error, for a package of money, alleged to contain eight hundred dollars, in United States treasury and national bank notes.

Writ oe Error to the Superior Court of Chicago. This was a hill in chancery, filed by the defendant in error, Charles Bradley, in the court below, against the plaintiff in error, Gustavus C. Pearson, and one McManus, to set aside a sheriff’s sale of certain premises, of which the complainant claimed the ownership, upon the ground that the notice of such sale was not published for three full weeks from the first publication to the day of the sale, as alleged is required by…

<p>1. Trespass — railroad company. Where a railroad conductor forcibly expels a passenger from the cars, between usual stopping places on the road, because he refuses to pay his fare: Held, That it is unlawful, and that trespass will lie for the injury.</p> <p>2. Same—justification, what is not. In such a case, where the passenger refuses to pay his fare, and informs the conductor that he will get off if he will stop the train, and when it stops refuses to do so: Held, That this does not authorize the conductor to forcibly expel him at aplace other than a regular station.</p> <p>3. New trial—excessive damages. Where a party sues a railroad company, for putting him off the cars, with force, at a place not authorized by law, and he recovers damages grossly in excess of the injuries ■ received, the verdict of the jury should be set aside by the court trying the cause, and failing to do so, the judgment will be reversed that a new trial may be had.</p>

Writ of Error to the Superior Court of Chicago. This was a proceeding to enforce a mechanic’s lien, the facts in which are sufficiently stated in the opinion.

Richard G. Montony, Judge, presiding. This was an action of trespass, for an assault and battery, instituted in the court below, by the appellees, Erastus Purdy and wife, against the appellants, Daniel L. Reeder, Albert Barker and Dennis Baker. The case was tried before the court and a jury, and a verdict and judgment for six hundred dollars rendered for the plaintiffs. This case was before the court at the April term, 1866, and is reported in 41 Ill. 219.

This was an application for mandamus, to compel the county treasurer of Du Page county to transfer his office and place of business from PTaperville to Wheaton, in that county.

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

<p>1. Covenants of title—in actions upon covenants of warranty, when warrantor will not be permitted to prove that the eviction was by force of a superior title. A defendant in an action upon a covenant of warranty, to whom notice had been given by the plaintiff of the pendency of the action in ejectment, and who neglected to defend, will not be permitted to prove that the judgment of eviction was not upon an adverse or superior title. Having failed to defend, such judgment is conclusive upon him, no collusion or fraud being shown.</p> <p>2. Sajie—no objection that plaintiff purchased outstanding title after the judgment of eviction. And in such case, it is no objection that the plaintiff, after judgment in ejectment, purchased the outstanding title. This he had a right to do, to save himself from eviction, and was under no obligation to submit to a second trial, after the warrantor had failed to defend.</p>

Theodobe D. Mtjephy, Judge, presiding. This was a suit brought by Shaw, against Wood & Harkness, to recover for an alleged balance due him, for making mole ditches on their farm. The defense was, that the ditches were not dug, as to depth, according to contract. The trial resulted in a verdict and judgment for the plaintiff.

<p>1. Assignor—whether liable. In order to render the assignor of a promissory note liable, under our statute, the maker must be sued, if solvent, and if not, neither suit nor demand is necessary.</p> <p>2. And it is immaterial whether the assignment was made before or after the maturity of the note.</p>

<p>1. Trespass—when it will lie—landlord entitled to possession—cannot resort to force. Under our statute, though a landlord be wrongfully kept out of possession, he has no right to resort to force to effect an entry. Such an entry is unlawful, and being so, an action for the trespass will lie.</p> <p>2. Rohmer decision. The case of Pardy v. Reeder, 41 Ill. 2I79, is to the same effect.</p>

Sabin D. Putebbaugh, Judge, presiding. This was an action of assumpsit, brought to the Circuit Court of Peoria County, by appellees against appellant, to recover upon a contract for grading. Hpon the trial of the cause in the court below, the jury returned a verdict for the plaintiffs, and assessed their damages at $2,095.82, for which the court rendered judgment.

Joseph E. Gary, Chief Justice, presiding. This was an application in the court below for a judgment against certain lots in the City of Chicago, on a special assessment warrant, for certain public improvements.

<p>Special assessments—action of the commissioners in assessing special benefits—how far cond.usive. The judgment of the commissioners of the Board of Public Works of the city of Chicago, as to what property shall be included, and what shall be omitted, in the assessment of special benefits to be derived from a contemplated improvement, cannot be questioned except for fraud. It cannot be overthrown by the testimony of other persons, that property benefited by the proposed improvement, was not assessed.</p>

<p>1. Special assessments—collectings notice, time of its publication. Where the record of the proceedings for a judgment upon a special assessment warrant shows that the notice given by the collector, upon receipt of the warrant, was published ten days consecutively, that will be sufficient, it not appearing that the paper, in which the notice was published, was published on Sunday.</p> <p>2. In the absence of proof, it will not be presumed the corporation newspaper, in which such notices are published, was a Sunday paper, but rather, that the ten consecutive days mentioned in the printer’s certificate of publication were secular days.</p> <p>3. And where the collector’s report shows the notice was published ten days, it will be taken to mean secular days, and his affidavit appended to his report is prima fade evidence of the fact.</p> <p>4. Same — conclusweness of the action of the commissioners in assessing special benefits. Where it appears that an assessment in the city of Chicago, for a proposed improvement, was upon property specially benefited, in the judgment of the commissioners making the assessment, their judgment can not be impeached, except for fraud.</p> <p>5. So it is not competent, in n proceeding for a judgment upon a special assessment warrant, to prove that the assessment was levied upon the front foot, and not according to the special benefits to each lot; such an objection should be taken before the common council.</p> <p>6. Same—when and where olyections should he taken. Objections to the fairness of a special assessment, or to the basis on which it is made, should be made at the proper time, before the common council, and if not allowed there, the proceedings may be enjoined, if there has been fraud in the assessment, or made on a wrong basis.</p>

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

<p>Appeal from the Circuit Court of DuPage County; the Hon. Sylvabus Wilcox, Judge, presiding.</p>

Writ oe Error to the Circuit Court of Tazewell county; the Hon. James Harriott, Judge, presiding.

<p>1. Evidence—assessment of damages. It is not error to reject evidence as to mere speculative damages on the breach of a contract. Where a defendant had leased a farm to plaintiffs, and permitted them to enter and break ground before the lease commenced, and afterwards, on the day on which the lease commenced, refused to let them have possession, and they bring suit, the proper measure of damages is the market value of the lease, the worth of the labor bestowed in breaking up the ground on the premises, and such other losses as had been sustained by incurring expense in preparing to carry out their agreement under the lease.</p> <p>2. Tender—when it can be mack. The 38th section of our practice act only allows a tender to be made and relied upon in cases of agreement to pay money, property, or other specific articles, where the sum is liquidated, or the articles are specific. It does not apply to unliquidated damages, nor can a tender of such damages be made under the common law; nor does the British statute, authorizing money to be brought into court, as a tender of such damages, obtain in our courts.</p> <p>3. Verdict—finding a tender. Where the jury find a tender to have been made in a proper case, the court should render judgment in favor of defendant for costs, and give plaintiff leave to withdraw the tender. In such a case the jury should not assess any damages, because, if the tender is not large enough, then there was not a sufficient tender, and if the evidence shows less than the amount tendered, still the tender admits that amount to be due, and they can not find less.</p> <p>4. Same. Where the jury found the issue of tender for the defendant and assessed the plaintiff’s damages at a specified sum, it was error in the court to render a judgment for costs against plaintiff, in a case where a tender can not be legally made and pleaded. In such a case the offer to pay the sum tendered is evidence of damages to that amount, although not a good tender.</p>

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

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

<p>New trial—verdict against the weight of evidence. Where, in an action to recover for board and services rendered as nurse, the recovery is largely in excess of what it should be, from the nature of the evidence, a new trial will be granted.</p>

<p>"Writ of Error to the Circuit Court of Marshall county; the Hon. S. L. Richmond, Judge, presiding.</p>

The facts of this ease will be found in the opinion of the court announced at the April term, 1867, in the same case, and reported in 44 Ill. 405. The decree rendered upon the former hearing in the court below was then reversed and the cause remanded, when, upon a second hearing a decree was rendered in accordance with the opinion -of this court.

<p>.Writ op Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Vendob and pvbchaseb—of the contract and sale—rescission and its effects— deed by vendor to another—sufficient declaration of forfeiture. B executed a contract to N for the conveyance of certain premises, for a specified sum, payable in installments, N agreeing, in addition, to pay all the taxes. Time was made the essence of the contract, and contained a covenant, that B might, on failure of performance, elect to declare the contract at an end, and all payments made upon it forfeited. N failed to pay the taxes, and also, the last installment of the purchase money, which fell due June 18th, 1855, and on the 29th of August following, B conveyed the lands to T, who recorded his deed, of which conveyance B gave N notice. N thereupon, during the next month of September, called upon B, who, it is claimed, extended the time of payment to N, to gather his crops, and never after gave to N other notice, that he had elected to determine the contract; and in February, 1865, B conveyed, also, the premises to N. Held, in an action of ejectment brought by N, against a grantee of T, that the contract between B and N became forfeited by the act- of B in making the deed to T, of which N had notice, and that by such deed T became vested with the legal title to,the premises; that B having parted with his title by the deed to T, he could not extend the time of payment to N, and that N took nothing by the subsequent deed of 1865, to him by B.</p> <p>2. Same.—But, in such case, had the contract remained in full vigor, and the rights of no other parties intervened, the deed of 1865 would relate back to the date of the contract. In this case, it is otherwise, as B became wholly divested of his title by his deed to T, which constituted a forfeiture of the contract.</p> <p>3. Same.—That after the declaration of forfeiture, a tender of the money, or a promise by B to convey, after he had parted with his title, could not restore the contract.</p> <p>4. Same—premises encumbered. Nor can it be said, that B was in default at the time he made the deed to T, so that he could not declare a forfeiture, by reason of the fact that the title was encumbered by a previous mortgage, executed by B to one S, since, by a decree in chancery, in a suit for partition, such mortgage was declared to be no encumbrance upon the title.</p> <p>6. Same—of the right to declare a forfeiture without tendering a deed—relief against can only be had in a court of equity. Under such a contract, the right to declare a forfeiture for non-performance, without the tender of a deed, must be sustained by a court of law. If there is any hardship, or ground for relief, the purchaser must apply to a court of equity.</p>

Benjamin B. Sheldon, Judge, presiding. This was a bill in chancery, filed in the court below, by the appellee, Henry Welch, against the appellant, William Ennor, and John W. Luke, Thomas Evans, William Trevarthan and G-race Ennor, to compel appellant to cancel and surrender certain securities held by Ennor against him, and also, a deed of trust, to Trevarthan as trustee for appellant, to secure a note for $400.00.

<p>1. Covenant for title—measure of damages.—Where a person sells and con veys real estate and covenants to warrant and defend the title, and an eviction is had, the covenantee may recover the purchase money paid and six per cent, interest thereon for five years prior to the eviction, and afterwards, until the recovery on the covenant, where the premises have been occupied by the grantee. In such a case the use and occupation is presumed to be equal to the use of the purchase money, and as the grantee is only liable for mesne profits for five years before an eviction, he will be restricted in the recovery of interest as damages to that period.</p> <p>2. Same.—To limit the computation of interest to that period in such a case, it is not necessary to plead the statute of limitations. It is a question of practice in assessing damages and not a question of pleadings.</p> <p>S. Corporation—jnvof of.—A plea denying the averment that plaintiff is a corporation is overcome by proof that defendant sold plaintiff land and executed to it a deed of conveyance, thus recognizing it as a corporate body.</p>

Isaac G-. Wilson, Judge, presiding. This was originally an application by the appellee, William H. Miller, as treasurer of Kane county, to the county court for judgment against certain delinquent lands for the unpaid taxes of 1865. Judgment was entered in the county court, fromwhich an appeal was taken to the circuit court of Kane county, where the judgment was affirmed, to reverse which, the case is brought to this court by appeal, upon an agreed statement of facts.

<p>1. Homestead exemption—homestead right—how lost by acts in pais. March 14th, 1859, T and wife mortgaged certain premises to S, without releasing the homestead, which was assigned by him to D, March 26th, 1861. Oct. 24th, 1861, T and wife quitclaimed the premises to their two sons, but without relinquish-. ment of the homestead, who conveyed the same to A in November following. Dec. 20th, 1861, by virtue of a power of sale contained in the mortgage, D sold the premises to H, to whom he executed a deed; and on Feb. 20th, 1862, T and wife executed a deed to H, conveying the homestead right, reserving possession until April 1st following. March 1st, 1862, T and wife abandoned the premises, and A took possession under his deed from the sons. Held, in a suit by the grantee of H against A, to quiet title—■</p> <p>1. That by the deed of T and wife to their two sons, only the equity of redemption passed, which was the sole estate acquired by A, of which he became divested by the sale under the mortgage.</p> <p>2. That had T remained in the occupancy of the premises beyond April 1st, he could have been evicted therefrom, by H, the owner of the fee, to whom the homestead right had been relinquished.</p> <p>3. And that, notwithstanding such release had never been executed, the act of T, in abandoning the premises, annihilated the homestead right, and the immediate right of possession at once attached to H, the owner of the fee.</p> <p>2. Same. A grantee by a deed which fails to release the homestead right, becomes entitled to the immediate right of possession, upon abandonment by the grantor, as by such act the homestead right is annihilated, and is not such an estate in the premises, which can be transferred as against the owner of the fee.-</p> <p>3. Mortgage—sale mortgage—judgment obtained on the notes—-prior to sale. And in súch case, it is no objection that judgment had been obtained on the notes executed by T, to secure which the mortgage was given, prior to the sale under the mortgage. The right of sale under the mortgage still subsisted.</p>

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

<p>AgehCT—of the settlement between parties—fact of must be shown by a preponderance of proof. In a suit in chancery, for an accounting of the doings of the defendant, as the agent and trustee of the complainant, where the defense set up was, that there had been a full settlement of all things between the parties : Ildd, that the fact of a settlement having been made, must be established by a preponderance of testimony, to justify the court in rendering a decree dismissing the bill for want of equity.</p>

Wbit oe Error to the Superior Court of Chicago. This was a hill in chancery, exhibited in the court below, by the defendants in error against the plaintiffs in error, to recover the possession of a certain house, No. 604, on North Clark street in the city of Chicago, alleged to have been purchased by them from the plaintiffs in error.

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

Joseph E. Gaby, Chief Justice, presiding. This was an application made to the Superior Court of Chicago, by the appellee, the city of Chicago, for a judgment on a certain warrant, issued to collect a special assessment for the opening of Myrick Avenue, from its northerly terminus to. twenty-ninth street. The court below entered judgment against the property, according to the application; to reverse which, the case is brought to this court by appeal.

<p>1. Fraud—ire. obtaining note. Under the eleventh section of the chapter entitled “ negotiable instruments,” a plea, to be sufficient, must aver facts which show that the fraud and circumvention was used in the obtaining the making of the note, and not in the contract or in the consideration of the note. A promise not to assign a note, and to hold it, and allow a set-off, made when the note was given, and when the note was assigned before maturity, is not the fraud contemplated by the statute, and does not constitute a defense in the hands of an assignee before maturity.</p> <p>2. Evidence—admissibility of. Where there is evidence tending to show that the holder of a note, by endorsement before maturity, had notice of a defense, or tne evidence tended to show such circumstances connected with the purchase of the note as would have awakened the suspicions of a reasonably prudent man that there was a defense, and to put him on inquiry, it is error for the court to reject evidence of a failure of consideration under an issue on such pleas, and, when admitted, these questions are for determination by the jury.</p>

<p>1. Dower—what is not such an equitable estate—as vests the wife with right of darner. W purchased certain premises from the State, in 1833, and before he had paid the purchase money in full, or obtained his patent, sold, and gave a contract for the same, to 0. C conveyed by warranty to S, in 1833, who, in turn, also conveyed the premises to another, in November of the same year. In July, 1836, W obtained his patent, and immediately conveyed the property to C, in pursuance of his contract. BMd, in a proceeding for dower, instituted by the widow of S, that the husband never acquired, in his own right, either the legal or equitable title to the premises, and hence, a right of dower did not accrue to his wife, the petitioner.</p> <p>2. Same. That the contract of W with the State, gave no estate in the premises, to which a right of dower would attach, and the transmission of the title to S passed no greater interest than W himself held.</p> <p>3. Former decisions. The cases of Owens v. Robbins, 19 Ill. 652; Woolley v. Magie, 26 ib. 528, and Stowe v. Steele, 45 Ill. 328, cited in support of this doctrine. The former case is not overruled by the latter, so far as regards incomplete equities.</p>

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

<p>Appeal from the Circuit Court of Cook county; the H011. Erastus S. Williams, Judge, presiding.</p> <p>This was a suit in attachment, commenced in the court below, against the appellees, Oliver P. Cobb, James W. Christy and John Cobb, by Harry B. Bates and others, with a summons against the appellant, as garnishee. A trial was had before the court, at the March term, 1868, and judgment rendered against appellant for $1,504.93. A motion for a new trial was made and overruled, and the case is now brought to this court by appeal. The further facts in the case are stated in the opinion.</p>

<p>1. Dower-^widow may retain possession of homestead until dower be assigned. Where, in an action of ejectment, the plaintiff claimed as the heir of a deceased person who died seized of the land in fee, and the proof showed that the defendant was not in the occupancy of the premises at the time of the commencement of the suit, and had only cultivated the land since then, by permission of the widow, who had been in the sole opcupancy thereof since the decease of her husband, and that her dower had never been assigned: Meld, that a recovery could not be had.</p> <p>2. Same. Under our statute, the widow, in all cases, can retain the possession of the dwelling house in which her husband most usually dwelt next before his death, together with the outhouses and plantation thereto belonging, free from molestation and rent, until her dower be assigned.</p>

<p>"Writ of Error to the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>1. Damages—death resulting from negligence. Under the act of 1853, giving a remedy, when the death of a person is caused by the wrongful act, default, or neglect of another, the damages can only be for the pecuniary loss, not for the bereavement.</p> <p>2. Former decisions. This doctrine is fully announced in the cases of the City of Chicago v. Major, 18 Ill. 349 ; Rock Island Railroad Co. v. Morris, 26 ib. 400, and the Chicago & Alton Railroad Co. v. Shannon, 43 ib. 338.</p> <p>3. Damages—in estimating measure of—for pecuniary loss—wealth of defendant immaterial. In such cases the wealth of a defendant can not be taken into consideration in arriving at the measure of compensation for the pecuniary loss suffered. The amount of the loss must he settled by proof.</p> <p>4. Same—verdict must not exceed the loss proved. The action, being a creature of the statute, must be governed by its provisions, and they provide only for compensatory damages, or approximate thereto, not for vindictive or exemplary damages. The verdict can not exceed the amount of the loss proved.</p> <p>5. Negligence—inactions for—under the statute of 1853—what facts must be averred and, proved. In actions under the statute, “for causing death by wrongful act, neglect, or default,” two material facts must be averred and proved, namely, the death, and the other fact, of there being a widow, or next of kin, surviving, the averment and proof of the death alone, being no ground of action.</p> <p>6. Pleading at law—of the plea of not guilty in actions for negligence under the statute of 1853—what fads are put in issue. In actions under this statute, the plea of not guilty, puts in issue the fact of there being a widow or next of kin, surviving, as well as the commission of the act complained of.</p> <p>I. Negligence—of proof of required by plaintiff. And in such case the plaintiff is required to prove the existence of a widow or next of kin, otherwise the action fails.</p> <p>8. Marriage—proof of—how may be rebutted. Ordinarily, the evidence of marriage may be rebutted by proof that any circumstances rendered indispensably necessary, by law, to a valid marriage, were wanting.</p> <p>9. Negligence—proof of the fact of there being a widow, or next of hin, surviving—indispensably necessary—requirements of the statute—names of such persons need not be averred in the pleadings—what sufficient. In an action under this statute, where the declaration averred that one Ann Barber was the widow, and Frank Barber the son of the deceased, and proof was offered by the defendant to show that Ann was not the wife, nor Frank the son of deceased, but that another woman, who was then offered as a witness, was the wife of deceased at the time of the commencement of the suit, which evidence the court refused to admit: Sdd, that it was unnecessary to aver the names of the persons, widow or next of kin, the requirement of the statute being met by the allegation that such persons survived, regardless of what were their names. Who was the true widow, or next of kin, was a question wholly immaterial; and that such proof offered by the defendant tended to prove plaintiff’s case, by showing that deceased did leave a widow; and being offered to attack the validity of the marriage, it was inadmissible for such purpose.</p> <p>10. Same—the question—who is the widow, or next of Join—to be determined by {he pn-obate court. The question as to who is the widow, or next of kin, only becomes important when the administrator is called upon to make distribution of the money received from the judgment, if one is recovered, and is to be determined in the probate court.</p> <p>II. Same—concerning the proof of marriage. And in such case it was sufficient for the plaintiff to prove the relation of husband and wife by reputation, which the defendant was at liberty to rebut.</p>

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

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

<p>1. Municipal corporations—of the power to fund their debts and issue the necessary evidences thereof. Where the power In the charter of a city to borrow money, required the money so borrowed to be expended and applied in liquidation of its debts, and in the permanent and useful improvement of the city, the corporation is not thereby prohibited from funding the existing debt, and issuing the necessary evidences thereof, in such mode and form as the parties may agree upon.</p> <p>2. Same—this power exists independently of any express authority in the charter. And the power to pay debts, or provide for their payment, to fund them and issue the necessary evidence thereof, exists in every corporation, to the same extent as in natural persons, and this without any express authority in its charter.</p> <p>3. Same—have all the powers of natural persons as regards their contracts— unless restricted. The doctrine is well settled, that corporations have all the powers of ordinary persons as respects their contracts, except when they are expressly, or by necessary implication, restricted.</p>

<p>1. Railroad corporation—concerning liability of-—as carriers of goods marked, 110. O. D,n— liability terminated by a delivery merely. Where a consignor delivered certain goods to a railroad company for transportation, marked as follows: “ John L. Page, "Winnebago, goods by B. B., care of American Express Co., C. 0. D.,” and which goods, thus marked, were shipped by the company and safely delivered to the consignee: Eeld, that the liability of the company terminated with a delivery of the goods, and that it could not be charged with the collection of the price of the same, the proof showing that such duties were never undertaken by it, in any case ; that no bill for the price of such goods was ever delivlred to the company by the consignor, and that the receipt given contained no language indicating any undertaking to make such collections.</p> <p>2. Same. The words, “ care of the American Express Co.,” appearing upon the goods alone, and not being mentioned in the receipt given by the company, indicated merely that if the consignee could not be found, they might be delivered into the care of the express company.</p>

<p>1. Deed of trust—sale under—notice. Where a deed of trust declared that, in case of default in the payment of the debt, the trustee might sell the trust property “ after publishing a notice in a newspaper published in the city of Chicago, ten days before the day of such sale,” and the first insertion of a notice was in a daily paper, published twelve days before the sale, excluding the latter day, in each daily paper during the time, but no papers were issued on the intervening Mondays: Held, that the requirements of the law were observed, and there was the required notice. The case of Seammon v. City of Chicago, 40 Ill. 146, is unlike this case, and does not control it.</p> <p>2. Same—sale by trustees. Where a deed of trust is to two trustees, and authorizes either to sell upon default in payment of the debt, and both joined in giving notice and in executing a deed to a purchaser, although but one attended and conducted the sale, the power was well executed, and there was no deviation from the terms of the trust deed.</p> <p>3. Same—pi'ior mortgage for same debt. Where a party owed another and executed a mortgage to secure its payment, which was recorded, and the debtor subsequently executed a deed of trust on the same land to secure the same debt, which was also recorded, and on a default the trustees sold the premises, the record of these instruments was notice to the world that they were to secure the same debt, and the trustees were not required to give notice that the debt was the same, and no person could have been misled by a failure to give such notice.</p> <p>4.. Same—purchase by agent of the creditor. Where the agent of the creditor bid off the property in his own name at the trustees’ sale, paid no part of his bid, received a deed and conveyed the premises to his principal: Held, that this was not irregular, as it would be an idle ceremony to have paid his principal’s money to the trustees and then for them to have paid it back to the creditor. The law does not require the performance of useless acts.</p> <p>5. Same—sale at sacrifice. Where property sold at a trustees’ sale for two-thirds of its value, and the sale was unattended with fraud, this is not such inadequacy of price as amounts to a fraud, and requires the sale to be set aside, and the debtor to be permitted to redeem. The debtor agreed that it should be sold to the highest bidder, and being a legal contract, a court of equity will not make a different one for him. He could have inserted other conditions in the deed.</p> <p>6. Same—under trust deed—-judgment for balance of debt—redemption. Where a sale was had of trust property, which satisfied but a portion of the debt, and the creditor subsequently sued and recovered judgment and collected the remainder of his debt: Held, that the recovery of the balance, by judgment, did not open the sale and authorize the debtor to redeem the trust property. A trustee’s sale bars the debtor’s equity in the trust property precisely as would a decree and sale by a foreclosure. A foreclosure by the acts of the parties held to have the same binding effect as a foreclosure under a decree.</p> <p>Í. Same—:fraud—departure from authority. If such a sale is fraudulent, or if the trustee, in conducting it, departs from his authority conferred by the declaration of the trust, equity will unhesitatingly afford the debtor relief.</p>

Wbit of Ebbob to the Circuit Court of Tazewell county ; the Hon. James Habbiott, Judge, presiding. This was an action on the case, brought by the defendants in error against the plaintiffs in error, in the Tazewell Circuit Court, to recover the value of thirty barrels of whiskey and twenty barrels of pork, which were alleged to have been destroyed by fire, in an accident happening on the railroad of the plaintiffs in error.

Writ of Error to tlie Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding. This was an action of assumpsit, brought by the plaintiff in error, Hiram A. Pool, for the use of Cyrus Hiles, in the court below, against the defendant in error, Elijah Marshall, to recover money alleged to have been paid to his use.

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

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

<p>1. Assessment—new assessment may be made—when origina!, assessment was void for irregularities. Undqr the authority of the 36th section of chapter 7 of the revised charter of 1863, of the city of Chicago, a new assessment may be made, in cases where the former assessment was void for irregularities. The language of the charter applied equally as well to cases when the original assessment was illegal, as when a new assessment has become necessary from any other cause.</p> <p>2. Former decision—approved. The case of The City of Chicago v. Ward, 36 Ill. 9, approved.</p> <p>3. Assessment—where first assessment is illegal—interest cannot be charged upon it—nor the costs of malting it—and included in the judgment upon the new assessment. And in cases where the first assessment was void for irregularities, it is error for the court in rendering judgment against the property upon the new assessment, to include in such judgment the costs of malting the original assessment, with interest from the date of its confirmation. Such are not the requirements of section 36, upon a void assessment.</p>

<p>Appeal from the Circuit Court of Kankakee county ; the Hon. Charles H. Wood, Judge, presiding.</p>

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

<p>Writ or Error to the Circuit Court of Jo Daviess county; the Hon. Benjamin R. Sheldon, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Mercer county; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>A,ppeal from the Superior Court of Chicago.</p> <p>V This was an action of assumpsit, instituted in the Superior Court of Chicago, by the appellee, Elliott Anthony, against the appellant, George A. Thompson, to recover for alleged professional services rendered in procuring a right of way into the city of Chicago, for appellant’s railroad. Claim, $5,000. The cause was tried before the court and a jury, who gave a verdict for the plaintiff for the full amount claimed. A motion for a new trial was made and overruled, and judgment rendered on the verdict. Whereupon, the defendant below appeals to this court.</p>

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

<p>1. Evidence—dying declarations—in civil actions—not admissible. In actions to recover damages for the death of a person, occasioned by the negligence of a railroad company, the dying declarations of the person killed, are not admissible in evidence to charge the defendant. Such declarations are not admissible in any civil case.</p> <p>2. Same—in what cases admissible. This court is not inclined to admit in evidence the dying declarations of the person killed, except in cases of public prosecution for a felonious homicide.</p>

<p>1. Mechanic’s lien—in proceedings to enforce—the evidence must be preserved in the record. This court has repeatedly said, that in suits to enforce a mechanic’s lien, the evidence must be preserved in the record, otherwise, this court will presume that the court below decreed properly as to the amount and the relative priority of the different liens.</p> <p>2. Same—the rule of adjustment. The rule for adjusting the different rights of parties holding separate liens upon property, which is sought to be subjected to the payment of a mechanic’s lien, is, that an incumbrance anterior to the mechanic’s lien, takes priority over it, to the extent of the value of the property at the time the mechanic’s lien attached, and the mechanic’s lien takes priority over the mortgage only to the extent of the additional value given to the property by the improvements.</p> <p>3. Same—decree may direct a sale of the premises in fee. And in such suits the decree may direct a sale of the premises in fee, notwithstanding the mortgage may not then be due, and if such mortgage has the prior lien, it retains its priority to the extent of the value of the property at the time the mechanic’s lien attached, this security being given by statute.</p> <p>4. Same—definition of the term “land,” used in the act relative to mechanic's liens. The term “ land,” used in the 20th section of the act in relation to mechanic’s liens, means, the land, with such improvements as there are upon it, at the time of the execution of the mortgage.</p> <p>5. Same—evidence as to the value of the property may be taken after the decree of sale. And in such cases, it is not error for the court to decree a sale of the property, and then direct the master to take evidence and report to the court the comparative value of the land and improvements at the time of the sale, such value being determined in reference to the day of sale. Evidence after the sale would be more satisfactory.</p> <p>6. Former decisions. The cases of Bmiilw. Moore, 26 Ill. 396 ; Raymond v. jEwing, ib. 343, and the North Presbyterian Church of Chicago v. Jevne, 32 ib. 219, cited and considered.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Edwin S. Leland, Judge, presiding.</p>

<p>Eligibility to a town office—residence required. Under the first section of article 6 of the township organization law of 1861, no person is eligible to any town office, as that of constable, unless he shall have been a resident of such town for one year next preceding the time of his election.</p>

<p>Appeal from ■ the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McHenry county; the Hon. Theodore D. Murphy, Judge, presiding.</p>

<p>Ordinances—in actions for the violation of—there must be proof made of the existence of the law alleged to -have been violated. In an action of debt for a penalty, for the alleged violation of a city ordinance, a recovery cannot be had, without proof of the existence of such ordinance imposing the penalty sued for.</p>

<p>Appeal from the Oircuit Court of Marshall County; the Hon. Samuel L. Biohmond, Judge, presiding.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding.</p>

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

Erastus S. Williams, Judge, presiding. This was an action of trover, brought in the Superior Court of Chicago, from which a change of venue was taken to the Circuit Court of Lake County, by the appellee, Charles K. Parks, against the appellant, Joseph L. Sharp, impleaded with Thomas B. Pitch, Edward W. Wicks and James M. Ellis, to recover the value of a certain quantity of wool, alleged to have been stolen from appellee, and bought by appellants from the felon, and re-sold…

Joseph E. Gary, Judge, presiding. The facts in this case are stated in the original opinion published in 44 Ill. 425, and this opinion is rendered upon a petition for a rehearing.

<p>1. Equity—injunction—grounds for granting. Where there has been a trial at law, and the defendant filed a bill, alleging that plaintiff in the suit at law was indebted to defendant for money loaned, property sold, and for damages on a breach of the contract: Held, that these are claims cognizable in a court of law, and should have been set up as a defense by way of set-off, and, after a recovery, they form no ground for granting an injunction.</p> <p>2. Same—new tried decreed in equity. Courts of equity have jurisdiction to decree a new trial at law, for mistake, accident or fraud; but a mere mistake of an attorney in advising a particular defense, is not such a mistake ; nor the fact that the attorney abandoned the defense of the suit, and the defendant was compelled to employ other counsel who tried the case, such an accident, and, in the absence of fraud, the court will not decree a new trial at law.</p> <p>3. Same—account. Where a bill is framed for an injunction, but incidentally states that, on one partner’s buying out the other, it was agreed that the partnership books should be balanced and the accounts settled, but alleged that complainant had paid a large sum towards the purchase, and a considerable sum was still due thereon, such a bill can not be held to be a bill for an account, as the statement amounts to an admission that nothing was due complainant on account of partnership matters, and the bill is defective and subject to a demurrer.</p>

Ebastus S. Williams, Judge, presiding. This was an action on the case, originally brought in the circuit court of Lake county; and a change of venue was taken to the circuit court of Cook county, from whence the record is brought to this court by appeal. The facts in the case are fully stated in the opinion, necessary to its understanding.

<p>1. Pleading at law—of the declaration—concerning sufficiency of in an action against an officer for failing to collect an execution. In an action against a sheriff for failing to collect an execution, the declaration contained two counts, the. first, averring that the officer made a levy on certain personal property, but did not make the money thereon, and “ wrongfully, falsely and deceitfully” returned upon the writ, that the suit having been appealed, as per bond and the order of the court thereto annexed, the writ 'was returned in no part satisfied; and the second, that the defendant in execution had personal property on which the officer might have levied, and of which ne had notice, but neglected and refused to levy, and “ wrongfully, falsely and deceitfully” returned the writ as alleged in the first count: Held, that this mode of declaring in such cases is sufficient, and in conformity with established precedents.</p> <p>2. Same—the return of the officer—not an essential part of the declaration. In cases of this character, the gist of the action is, that the sheriff neglected his duty in failing to levy, or, having levied the writ, in failing to make the money thereon. The return of the officer is not an essential part of the declaration, and is averred to have been “ wrongfully, falsely and deceitfully” made ; hence, in passing on the sufficiency of such declaration, the return can not be assumed to be true, merely because it is not expressly and positively alleged therein to be false.</p>

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

<p>1. Jurisdiction—sending process to foreign county—question of jurisdiction— must be raised by plea in abatement. The rule must be considered as firmly established, that a defendant seeking to raise the question of jurisdiction, where the summons has been sent to a foreign county, must do so by plea in abatement.</p> <p>2. It cannot be done by demurrer, or by a writ of error, after default.</p> <p>3. Former decisions. The cases of Kenney v. Gh'eer, 13 Ill. 449 ; QilMan v. Gray, 14 ib. 416 ; Waterman v. Tuttle, 18 ib. 292, and Hamilton v. Dewey, 22 ib. 490, cited and approved.</p>

Writ op Error to the Circuit Court of Mercer county; the Hon. John S. Thompson, Judge, presiding. Wells Willetts obtained a judgment against Sophia 0. Newman, in the Circuit Court of Mercer county, at the April term, 1861, for $814.85, and an execution was issued thereon on the 4th day of October, 1861.