Volume 49 — Illinois Reports

Benjamin R. Sheldon, Judge, presiding. This was a bill in' chancery, filed in the court below by the appellee, against the appellants, to set aside two deeds, one made and executed by appellee to the appellant, H orris, for certain lands situated in Jo Daviess county, and the other made and executed by the appellant, Horris; to his co-appellant, Foltz, for an undivided half of the same lands, and also for an accounting as to the mineral rents and mineral taken from the…

Theodore D. Murphy, Judge, presiding. This was an action of trover, brought by the appellee, Mary C. Hasbrouck, in the court below, against the appellant, Daniel Pierce, and tried at the February term, 1866, of said court, and which trial resulted in a verdict for the plaintiff. A motion for a new trial was made, which the court overruled, and rendered judgment on the verdict, to reverse which, the cause is brought to this court by appeal.

<p>1. Pabtkebship—power of partner. A partner cannot sell partnership property in payment of his individual debt, without the assent of his partner; to do so is a perversion of the firm property, and operates as a fraud upon the other partner. . And for the same reason, one partner cannot mortgage the chattels of the firm to secure his individual debt, without the assent of his partner, so as to prevent the latter from having such property applied to the payment of the firm indebtedness.</p> <p>2. Where a partner makes such a mortgage to secure such a debt, it does not operate as a mortgage on the interest of the maker in the property, as on its foreclosure the property would be diverted from the use of the firm, and would create a tenancy in common between his partner and the purchaser or holder under the mortgage. But it may be that if on the payment of the firm debts and a division of the assets of the firm, such property fell to the mortgagor, the mortgage would become operative and could be enforced. Such is the effect, of a sale on execution of a partner’s interest in the firm property.</p>

Benjamin R. Sheldon, Judge, presiding. This case was before the court at the April term, 1867, and is reported in 44 Ill. 169, wherein a full statement of the facts will be found.

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

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

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

<p>1. Infants—contracts by—-for improvement of their property—not binding. Where work is done, or .materials furnished, under a contract made with a minor, for the improvement of his property, such contract is not binding, and the contractor can claim no lien therefor against the property.</p> <p>2. Same—receipt of rents by—after majority—does not amount to a ratification of the contract. And where improvements are made under such a contract, the receipt of rents, after he becomes of age, from the property so improved, does not amount to a ratification, so as to operate as a lien against his property.</p> <p>3. Mechanic’s lien—mechanics and material men—must know with whom they are contracting. A party performing work, or furnishing materials for the improvement of property, must ascertain whether the party with whom he is contracting is a minor or not, and if such contract is with one who has not attained his majority, it is not obligatory upon him, and the lien of the contractor fails.</p> <p>4. Same—persons having a less estate than the fee considered as owners to the extent of their interests. Where a person holds a. less estate than the fee, he is considered, under the statute, as the owner only to the extent of his interest or estate, and can not, by his contract, create a lien against the property to any greater extent than his right and interest therein.</p> <p>5. Same—estate acquired by marriage subject to the lien. And the estate “of a husband, acquired by marriage, may, by his contract, be subjected to the lien.</p> <p>6. Same—acts which will not amount to a ratification of a contract made by a person unauthorized to contract. And where a contract is made by a person to erect a building upon premises which belong to another, and such contract is made without the knowledge or authority of the owner, the fact that such owner, after its completion, receives the rents and profits therefrom, does not amount to a ratification of such contract, so as to create a lien upon the premises.</p>

<p>Principal and agent—ratification. Where a person in possession of the property of another, without the knowledge and consent of the owner, exchanges the same for other property and gives his individual note for the difference, and without disclosing the fact of ownership in another at the time of making the exchange, and afterward the owner receives the property so taken in. exchange, thereby ratifying the act of such person as his agent; and the payee of the note, after learning the fact that such person acted as agent in the transaction, fails to notify the principal that he should look to him for the payment of the note, until after the principal has settled with the agent, and in such settlement had paid the agent the amount which he had given his individual obligation to pay ; Hdd, that the principal was thereby discharged from any liability to the payee of the note.</p>

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

<p>Chancebt—of proceedings to set aside a decree rendered by default for error apparent on its face. S obtained a decree by default, subjecting certain lands, the title of which was in the wife t>f M, to the payment of a judgment in complainant’s favor against M. The decree made no exemption of homestead rights, and also directed, in addition to the payment of S’s judgment, the payment of a judgment against M in favor of E, who was not a party to the bill. Whereupon M and wife filed their bill to set aside the decree, for errors apparent on its face, and also to enjoin the sale of the land, on the ground that it was then, and at the time of the rendition of the decree, the homestead of M’s wife. The court below rendered a decree wholly setting aside this former decree, for the reason of the error committed in providing for the payment of E’s judgment: Held, that this was error; that the court should merely have modified the-former decree, by directing that that portion which related to E’s judgment should be set aside, and directing, also, a sale of the land in payment of S’s judgment, subject to the homestead right of M’s wife, which right had been established by the proofs.</p>

<p>1. Agency—evidence of. Where a person in charge of a warehouse purchases grain, and ships it in the name of the owner of the warehouse, and he advances money to him on such shipments, and the purchaser ships none in his own name, it may be inferred that the person making the purchases is the agent of the person in whose name it is shipped, and the latter will be held liable to a person to pay for grain of whom a portion so shipped was purchased.</p> <p>2. Verdict—evidence. A verdict will not be set aside unless it is manifestly against the weight of evidence.</p>

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

<p>1. Tenants in common—incumbrance removed from the common estate by one— other tenant must contribute to extent of his interest—of the lien for such contribution. A and B were owners, as tenants in common, of a certain tract of land incumbered by a mortgage, which was foreclosed and the premises purchased by one 0, who assigned the certificate to A. D, the mother of B, having a right of dower in an undivided half of the premises, and being also guardian of B, redeemed the same, by paying over to the master the full amount of the purchase, which sum was paid to A. In a suit for partition, by A against B and D: field, that A must take her allotment, subject to D’s lien for' the payment of one-half of the redemption money.</p> <p>2. That D, having redeemed the premises from the master’s sale, had a valid claim against A to the extent of one-half of the redemption money paid by her, and which constituted an equitable lien on the land while in the hands of A, which a court of equity would enforce.</p> <p>3. Where one tenant in common removes an incumbrance from the common estate, the other tenants must contribute to the extent of their respective interests, and to secure such contribution, a court of equity will enforce upon such interests an equitable lien of the same character with that which has been removed by the redeeming tenant.</p> <p>4. Same—of the purchase of an outstanding title by one tenant—rights of his co-tenant. And where one tenant buys in an outstanding title, he can not set it up as against his co-tenant without giving him an opportunity to contribute and thereby participate in the benefit of such purchase.</p> <p>5. Same—where affirmative relief is sought—a cross bill must be fled. And in such case, inasmuch as the defendants B and D asked no affirmative relief by cross bill, a decree for the sale of the premises, in event of the non-payment of D’s claim, could not be rendered.</p> <p>6. Same—apportionment of incumbrances authorized by the partition act of 1861. But, even without a cross bill, the decree, in such case, should, under the partition act of 1861, have provided, that A should take her allotment, subject to D’s lien for the payment of one-half of the purchase money. This act expressly authorizes the apportionment of incumbrances.</p>

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

<p>1. Trial—of general, and special objections—if removable must be specially stated. This court has repeatedly said, that a general objection to an instrument of evidence, raises only the question of relevancy. If obnoxious to a special objection, that objection must be stated, in order that the party offering the proof, may, if in his power, have an opportunity to remove the objection. When the. objection could not, from its nature, be removed by proof, such objection need not be specified, but is available on appeal or error.</p> <p>2. Corporations—when acts of an officer—presumed to have been done with authority. Where an instrument undertaking for the delivery of personal pro-. perty on the order of a corporation, was assigned by its president, the authority to make such transfer will be presumed, in the absence of proof to the contrary.</p> <p>3. Chattels—what amounts to a delivery of. M & W gave to the Union National Bank a warehouse receipt, undertaking to deliver certain personal property on its order. This order the bank assigned to K & Co., to and for whom M, (one of the firm of M & W,) pointed out and separated from the common mass in the store, the articles covered by such receipt; and at the request of K & Co., who then and there took a list of the articles, M assented to take charge of them for K & Co. until called for by their order: Held, in an action of replevin by K & Co. against M & W, to recover the property, that the transaction must be regarded as an acknowledgment of ownership in K & Co., and as an actual delivery to them, entitling them to the possession.</p> <p>4. Estoppel. That M having turned out the property to K & Co., the firm of M & W cannot now claim that the articles so pointed out by II, and separated from the common stock, were not the same for which the receipt was given.</p>

This was an action in assumpsit, brought by the appellants, Walter hi. Woodruff and Jackson E. Woodruff, against the appellees, John R. Thorne and Alexander L. Thorne.

<p>1, Practice in the supreme court—a writ of cwtiorari will not be allowed to bring up an original bill—not considej'ed by the court below in its decree dismissing the cross bill, Where the record shows, that the court below, in refusing an injunction and dismissing a cross bill, acted alone upon such bill, without considering the original bill, in the proceedings thereunder, a writ of certiorari will not be allowed to bring up a ■ copy of the original bill. In such case, it is not necessary that this court should inspect both the original and cross bills, in order to determine whether the court erred in its decree.</p> <p>2. Errors—confession of—by appellee. And where, on an appeal to this court, from a decree denying an injunction and dismissing the cross bill of appellant, the appellant assigned as error—1st, That the court erred in denying the injunction ; 2d, That the court erred in dismissing said cross bill; 3d, That the court erred in rendering a decree against the plaintiff, and 4th, That the court erred in not granting the relief prayed for by plaintiff; and the appellee afterwards confessed these errors, with the exception of the 4th: Held, that appellee thereby admitted, that the cross bill, on its face, presented a case, which, unanswered, in equity entitled appellant to an injunction.</p> <p>3. Practice in chancery—cross bills—upon filing of—to render final decree— without answer or default—error. It is error for the court to render a final decree, upon the filing of a cross bill, granting the relief thereby sought, when no answer had been filed thereto by the defendants, nor any steps taken to place them in default.</p> <p>4. Same—rights of defendants in chancery—when final- decree can be rendered. A defendant, in chancery, has a reasonable time, within which to interpose his defense, by way of demurrer or answer, and, unless it is upon a bill pro confesso, or on a default to file an answer under the rules of practice, a final decree can not be rendered, except on a final hearing regularly had.</p> <p>6. JüRisniOTlON—of the courts of this State—eo-extensive only with its limits. The jurisdiction of our courts is only co-extensive with the limits of the State, and they can not send their process for service into other States and jurisdictions, for any purposes whatsoever.</p>

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

Erastus S. Williams, Judge, presiding. This was an action of covenant, brought by the appellees, in the circuit court of Cook county,- against the appellants, and was before this court at the April term, 1866, and is reported in the 41 111. 413, where will be found a full statement of the facts.

<p>1. Executors and administrators—duties of-—with respect to assets. It is the duty of executors and administrators, enjoined by law, to reduce the assets of the estate to money, and report the same to the court, to be paid upon debts and distributed among the parties entitled to receive it.</p> <p>2. Same—cannot loan the money of the estate without legal authority. And if an executor loans the money of the estate, unless authorized or required so to do, by the will, he does it in his own wrong, and it operates as a devastavit, and creditors, legatees or distributees, may sue and recover on his bond.</p> <p>8, Same—a reasonable compensation will be allowed—for necessaries furnished, minor heirs having no guardian. And when an executor furnishes the necessary food and clothing for the support of minor heirs, having no guardian, he should be allowed to charge a reasonable compensation therefor.</p> <p>4. Evidence—burden of proof—in suit on an executor's bond. In a suit in chancery on an executor’s bond, by the devisees, for an alleged misappropriation of the moneys belonging to the estate, where the defendant claims that such moneys were paid over by the executor to complainants, it is incumbent on him to satisfactorily establish such fact, the money having been in the hands of the executor, as proved by his report to the court.</p> <p>6. Practice in the Supreme Court—when cross errors must be assigned. Where an appellee, in a chancery suit brought to this court, desires to question the correctness of the decree rendered in the court below, he must assign cross errors, otherwise, this court will not examine the record, to ascertain whether errors have been committed which operate injuriously to him.</p>

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

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

<p>1. Mechanic’s lien—petition—contract. Where a petition for a mechanic’s lien alleges that the son of a widow, who was the owner oí a mill, contracted for machinery to place therein as well for himself as for the mother, with her knowledge and consent and as her agent: Held, that it was sufficient on demurrer. But, to succeed, it must be proved that the son had authority from the mother to make the contract; that his mere possession of the mill as agent or otherwise is not evidence of authority to bind any interest, other than his own.</p> <p>2. Contbact—its performance. Under the law of 1845, it was necessary to perform the contract for the delivery of materials within the specified time, to' preserve the lien, but under the act of 1861 it is otherwise. Under the latter act the lien will continue if the materials are furnished after the stipulated time, provided the delivery is completed within one year from the time of commencing their delivery.</p>

<p>1. Trusts and trustees—relative to ike enforcement of trusts by courts of equity. Where a policy of insurance on the life of the assignor, was voluntarily assigned by him to a trustee, for the benefit of his three children, notice of which assignment and,trust was given to tne company, and also to such trustee, who sent to the assignor his written acceptance thereof, but the policy and assignment remained in the possession of the assignor, and was found after his decease among his other papers: Held, in a suit by the trustee against the administrator of the assignor, to compel a surrender of the policy to him as such trustee, and that he be declared the owner thereof:—</p> <p>1st. That an actual delivery of the policy and assignment thereof to the trustee, i was not necessary in order to complete the trust created. ></p> <p>2d. That the acts of the parties—the one notifying the other of the assignment ' and trust, and his written acceptance thereof, constituted a sufficient delivery to ( complete the title of the trustee. ,</p> <p>3d. That the object sought to be accomplished by the assignor in making the * assignment, namely, to make provision for his orphan children, being fully estab- ' lished, equity will carry out such intention, though the transfer be voluntary and without consideration, he never having manifested any desire to retract the act. ,</p> <p>2. Sales—intention of parties—a controling dement. In such cases, equity , will look to the substance of the act done, and the intention with which it was done, and in the absence of fraud, carry out such intention, and give it full effect.</p>

Writ of Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by the defendant in error, against the plaintiff in error, in the Superior Court of Chicago, to recover the sum of five hundred dollars. The cause was tried before the court and a jury, and a verdict found for the plaintiff below for $535.25.

Arthur A. Smith, Judge, presiding. Feeley sold Powell two hundred and twenty-seven bushels of wheat, Powell agreeing to pay the highest price paid that day at Oneida, and upon this condition Feeley let Powell have the wheat.

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

Erastus S. Williams, Judge, presiding. This was -an action of forcible entry and detainer, brought by Scanlon against Lalor, to recover possession of a dwelling house, on default of payment of rent. Scanlon claimed that the rental was payable monthly, in advance. Lalor claimed that the lease was for an. unexpired term, and therefore not yet due and payable.

<p>1. Practice at law—in actions of ejectment—where two separate actions were brought by different plaintiffs for the same land—concerning consolidation of the same. H and W brought two separate actions in ejectment, against the same defendant, at the same term of court, for the same land, and by different attorneys; but both cases were docketed as on» suit; the plea was so entitled and filed, and the docket entries showed that it was so treated by the parties. Upon the trial, after hearing the evidence, on motion of the defendant, the court required the plaintiffs to elect upon which declaration they would proceed, whereupon they elected to proceed in favor of H, and a judgment was rendered in favor of the defendant. Sel4, that W having failed to establish a right to recover, the action of the court requiring such election, was not error, it operating merely, as though the court had rendered a judgment against him, which could have been properly done.</p> <p>2. But had W shown a right of recovery, such action of the court would have been error. Both cases having been treated as one suit, and the proofs heard, the defendant’s objection came too late.</p> <p>3. Ejectment—consolidation of suits in—construction of the ninth section of ejectment act. Under the ninth section of the ejectment act, parties may sue jointly, and proceed jointly in one count for the land, and each separately in other counts, and either for the whole, a part, or for separate and undivided interests, but parties cannot bring separate actions, as in this case, and be required to consolidate them, without their consent.</p> <p>4. Acknowledgment on deeds—when certificate fails to showin what State it was made—deed insufficient. Where the venue to the certificate of acknowledgment was simply “ county of New York,” and nothing appeared in the body of the deed, indicating in what State the ackowledgment was taken: Held, that this was insufficient, and rendered the deed inadmissible in evidence as showing title to the grantee therein, in an action of ejectment for the premises.</p> <p>6. Same—must show where made and certified. It must appear from the acknowledgment where it was made and certified ; or by taking the acknowledgment and deed together we must be able to presume in what State it was taken; otherwise, it is defective.</p> <p>6. Ejectment—extent of recovery must conform to the declaration. This court has repeatedly held, that under a declaration in ejectment for the entire premises an undivided interest less than the whole cannot be recovered.</p> <p>1. Evidence—in ejectment—deed conveying a less interest—where the whole is claimed—inadmissible. And in such case, where the whole premises are claimed by the plaintiff, a deed conveying a less interest is inadmissible.</p> <p>8. Statutes—construction of ejectment act—seventh—not repugnant to the twenty- ' fourth section. The twenty-fourth section of the ejectment act, does not apply in cases where the whole premises are claimed, and is not repugnant to the seventh section of that law.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Sabijt D. Puterbaugh, Judge, presiding.</p>

Evert Van Burén, Judge presiding. On the 3d day of October, 1865, the State Sayings Institution recovered a judgment in the court below,.against John A. Nelson, the then sheriff of Cook county, for the sum of $1,500, for failing to pay over money collected by him upon execution. On the 10th of February, 1868, the court, on motion of Nelson, set aside that judgment. The record is brought to this court, and the order setting aside the judgment is assigned as error.

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

Writ of Error to the Circuit Court of Tazewell county; the Hon. James Harriott, Judge, presiding. This was an action of trespass on the case, brought by the defendant in error against the plaintiff in error, in the circuit court of Tazewell county, to recover damages for stock alleged to have been killed by defendant’s railroad, by reason of its failure to fence its road.

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

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

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

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

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

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

<p>Assessment op damages—iy ilie clerk. Where, in an action of assumpsit, against the acceptor of an order for a definite sum of money, conditioned to be paid upon the sale of certain real estate, the declaration averred that such real estate had been sold, and judgment was taken by default, the damages rested merely in computation, and might be assessed by the clerk of the court.</p>

<p>1. Leasf—forfeiture—at common law—for non-payment of rerd. The right of forfeiture for non-payment of rent, being a harsh remedy, has never been favored by the law, and where a lease provides for such forfeiture, the landlord is required, at common law, before he can declare a forfeiture, to make a demand for the rent on the day it falls due, for the precise amount, and at a convenient hour before sunset, at the place specified in the lease, or on the premises if no place is named. Such demand must be made in fact, although no person be present.</p> <p>2. Same—what will not be deemed a valid declaration of a forfeiture—so as to terminate a lease. P leased to K a portion of certain premises, together with a ipecified quantity of steam power, at a stipulated rent, payable on the first day of each month, from May 1st, 1864, to January 1st, 1869. The , steam power thereby leased was to be communicated from lessor’s engine, through a shaft to K’s machinery. The lease provided for a forfeiture for non-payment of rent. K failed to pay the rent due on the 1st day of May, 1867, and the lessor, on the 7th day of that month, caused to be served upon K, a written notice, notifying him that, by reason of such default, he had elected to terminate the lease at the expiration of ten days thereafter. The person serving such notice was instructed, by the lessor, not to receive the rent, if K should offer to pay it, which he did offer to do within the ten days after the service of the notice, and it was refused. On the 1st of June following, the lessor severed the connecting shaft, whereby K was supplied with the steam power, and his machinery stopped. In an action by K against the lessor, to recover the damages sustained by reason of such act: Held, that there was no valid declaration of a forfeiture by the landlord, so as to terminate the lease and authorize a re-entry; that K’s offer to pay the rent within ten days, and the lessor’s refusal to receive it, were tantamount to payment, and saved the lease from a forfeiture.</p> <p>3. Same—payment of rent made within the ten days after notice—lease saved from forfeiture. In giving construction to the act of 1865, this court has said, that if the tenant pays the rent in arrears within the ten days after service of the notice, a forfeiture of the lease is thereby prevented., Chadwick v. Parker, 44 Ill. 326.</p> <p>4. Same—mere non-payment of rent—will not authorize the landlord to enter and forcibly expel the tenant or remove tenements or appurtenances. Under such lease, K acquired the same right to the use of the steam power that he did to occupy the premises, and his failure to pay the rent no more authorized the landlord to cut off such power than it did to enter upon the premises, and forcibly dispossess the tenant' thereof. Mere non-payment of rent does not authorize the landlord to enter upon and forcibly expel the tenant, or to remove the tenements or their appurtenances, or any part of them.</p> <p>5. Damages—measure of—for destruction of business—in consequence of cutting off the steam power. And in such case, where the evidence showed, that in consequence of the act of the landlord, in cutting off the' steam power, the lease was rendered valueless, and the stock in trade and machinery of the tenant became depreciated, and his business destroyed: Held, that these were all proper elements for the consideration of the jury in ascertaining the measure of damages.</p> <p>6. Same—concerning the profits. And in estimating the losses sustained, by reason of the destruction of plaintiff’s business, it is proper for the jury to take into consideration the extent of plaintiff’s business, and his profits for a reasonable period next preceeding the time when the injury was inflicted, leaving the defendant to show, that by depression in trade, or from other causes, the profits wopld have been less.</p> <p>*1. Same—in trespass. In all actions of tort, the measure of damages is not less than the amount of injury sustained, and in case, all of the consequential damages sustained, connected with, or flowing from the act complained of.</p> <p>8. Same—must be real. But the damages must be the necessary and natural result of the act, and must be real, and not speculative or probable.</p> <p>9. Lease—after unlawful entry—tenant had a right to dispose of his properly. After the landlord had cut off the power from the tenant’s machinery, the tenant had a right to presume that such power would not be restored, and was under no obligation to hold his machinery and stock undisposed of until the end of his term, but could dispose of his lease, stock and machinery, on the best terms he could obtain, and the landlord would be liable for any loss thereby sustained.</p> <p>10. Damages—what may he recovered—for an unlawful re-entry. And in such case, the party injured is entitled to recover damages for all the injury he has sustained, which was the necessary and natural consequence of the wrongful act.</p> <p>11. Former decisions. The cases of Green v. Williams, 45 Ill. 206, and Cilley v. Hawkins, 48 Ill. 308, are not in conflict with the doctrine expressed in this case.</p> <p>12. Damages. Nor, in such case, can the plaintiff be confined, in estimating his damages, to the value of the lease during the period from the time the power was withheld until it was connected with the machinery, some five months after-wards. Having been deprived of the power, and his business thereby destroyed, he had a right to presume that it would not be restored, and to sell out his effects, and after such sale he was under no obligation to re-establish his business.</p>

Erastus S. Williams, Judge, presiding. This was an action of assumpsit on a bill of exchange, instituted in the court below by the appellee, the Metropolitan Mational Bank of Mew York, for the use of Field, Palmer & Leiter, against the appellants, Albert Sturges and Buckingham Sturges.

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

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

Erastus S. Williams, Judge, presiding. This was an' action on the case, brought by the appellees, in the court below, against the City of Chicago, the appellant, to recover damages for a personal injury alleged to have been . sustained by the appellee, Bridget Martin, by reason of a defect in one of the public streets of the city., The cause was tried before the court and a jury, and a verdict and judgment rendered for the plaintiff, for $1,000, to reverse which, the record…

Erastus S. Williams, Judge, presiding. This was an action of assumpsit, brought by Mooney against McCarthy, for work and labor done. A trial was had before the court and a j ury, resulting in a verdict and judgment for the plaintiff for $210. The defendant thereupon took this appeal, and asks a reversal of the judgment, upon the ground that the verdict was against the evidence.

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

<p>Bailment—a factor for hire—of his duty in respect to insurance. The doctrine is well settled, that a factor for hire is not obliged to effect insurance on the property consigned to him, without some authority, express or implied, from his principal.</p>

S. B. Gookins presiding as Judge, by agreement of parties. This was an action of replevin, brought by William Wilder against Bobert L. Greenlee and others, to recover a portable steam engine, The defendants pleaded property in James Baxter.

<p>Appeal from the Circuit Court of La Salle county; the Hon. Madison E. Hollistee, Judge, presiding.</p>

Peoria county; the Hon. Sabin D. Puterbaugh, Judge, presiding. This was an action originally brought before a justice of the peace, and appealed to the circuit court of Peoria county. It appears that the'appellee, Wells, traded to the appellants a lot of ready-made clothing and dry goods, for a horse, buggy, harness, and a lot of whiskey and cigars.

<p>1. Insurance—what property is embraced in the policy. The owners of a packing establishment obtained a policy which covered “ cattle and hogs and the product of the same, and salt, cooperage, boxes, and articles used in packing, in their stone and frame packing establishment, sheds and yards adjoining, their own or held by them in trust or on commission, or sold but not delivered”: Held, that a quantity of coal in the yard, which was shown to be an article necessary to be used in carrying on the packing business, and the quantity on hand reasonable for the amount of business done in the establishment, was covered by the policy.</p> <p>2. Nor did the use of the words in another policy, “ articles used for packing,” instead of “ articles used in packing,” affect the construction to be given to the instrument, in that regard.</p> <p>3. Also, a quantity of barrels and tierces held by the assured on storage, were covered by the clause which embraced articles “ held by them in trust or on commission,” the term “ trust” not having been used in that connection in any technical sense, but as applying to ordinary bailments.</p>

<p>Sending process to a foreign county—where a contract is made. A commission merchant doing business in Chicago, in Cook county, called upon a party in La Salle county, and requested him to consign grain to the former. The party in La Salle county did not reply definitely at the time, but subsequently consigned a shipment of grain to the commission merchant, at Chicago, advising Mm of the fact by letter, and in the same letter requested him to deposit a certain sum to the credit of the shipper’s banker, which was done, but the sum so deposited exceeded the proceeds of the grain shipped, and to recover such excess the commission merchant brought suit in Cook county, against the shipper, and sent the summons to La Salle county for service: Held, that the contract out of which the cause of action arose, was made in La Salle county, and not in Cook county, and therefore the summons could not be sent to La Salle county to be served.</p>

<p>1. Administratrix—in actions against—for breach of a parol contract made with the intestate—what plaintiff must prove—demand necessary. In an action against an administratrix to recover for the breach of a contract alleged to have been made with the intestate, in his life-time, by which the latter was to deliver to the plaintiff a certain quantity of coal at a specified price, and where the eon--tract alleged to have been made, so far as plaintiff was concerned, rested entirely in parol, it is necessary for the plaintiff to show not only a readiness £&& willingness to perform Ms part of the contract, but a demand on the defendant for the property contracted to be delivered.</p> <p>2. Contracts—-for the delivery of personal property—in actions for non-delivery —what must be shown,. In an action upon a contract for the non-delivery of the articles contracted for, where the obligations to pay and deliver are concurrent, ' in order to recover, the plaintiff must aver and prove his readiness and willingness to perform his part of the contract.</p> <p>3. Same—slight proof sufficient. And in such case, slight evidence of the fact will be sufficient, but some proof must be given. Hungate v. Rankin, 20 Ill. 641, and Hough v. Rawson, 17 ib. 688.</p> <p>4. Error—will not always reverse. This court will not award a new trial, merely on the ground that an improper instruction was given, where it appears, from the record, that substantial justice has been done.</p>

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

Arthur A. Smith, Judge, presiding. This was an action in assumpsit, originally brought in the Warren County Court, by the appellee against the appellants, to recover damages for an alleged non-performance of their contract. It appears that these parties entered into a contract, by the terms of which, appellee sold to appellants between two and three hundred bushels of wheat by sample, which was to be delivered at a future time, and of the same quality as the sample.

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

<p>Limitations—of “ exhibiting” a claim against an estate.* On the day appointed by an administrator for the adjustment of claims against an estate, and within two years after letters of administration were granted, a creditor of the estate filed his claim in the probate court: Held, that the claim was “ exhibited” in the manner and within the time required by law to prevent the bar of the two years statute of limitations in regard to the presentation of claims against estates, notwithstanding there was no special order of continuance from term to term, and the claim was dropped from the docket for a period of over three years before its final adjudication.</p>

<p>1. Negligence—contributory—in what actions the question of-—does not arise. In an action on the case, against an officer, to recover damages for his willful neglect to perform an imperative duty imposed upon him by statute, the question of contributory negligence can not arise.</p> <p>2. Same—malice—in sitch cases—question of—unimportant. And in actions of this character, the question of malice is unimportant, except as bearing upon the question of damages.</p> <p>3. Same—of the gravamen of the action. In such cases, the gravamen of the action is not the wrongful act; but the neglect to perform an imperative duty, and the good faith with which the defendant acted, or failed to act, can not be considered.</p> <p>4. Practice—exceptions to instructions—when presumed to have been tabeen in due time. Where an exception to an instruction appears in regular order upon the record, immediately following the instruction excepted to, this court will presume that such exception was taken at the time the instruction was given.</p>

<p>1. Dower—release of—may be made—to a purchaser from, the owner of the fee. In a proceeding, by the widow of K, against 0, for an assignment of dower in certain premises, the proof showed that K, her husband, conveyed the property to J, but that, by this deed, there was no relinquishment of dower. SubsequcrAiy, J conveyed the premises to H, who gave his notes for the purchase price, secured by a deed of trust upon the premises. H made this purchase, and took a conveyance in his own name, under a verbal agreement with 0, that 0 should make the first three payments, and that if H made the last payment, he should have one-fourth of the property, and if 0 made all the payments, he was to take the whole. 0 entered into possession of the premises and made all the payments. When 0 had paid one-half of the purchase price, K and wife conveyed the premises to him, by which deed petitioner released her right of dower in the same, and afterwards 0 and H conveyed the property to 0. K died about eight years after this latter conveyance. Held, that 0, at the time of the execution to him of the deed by K and the petitioner, held such an interest in the premises as enabled him to become the releasee of the dower right, and that such deed operated to bar petitioner’s right to recover dower in the premises.</p> <p>2. Statute of frauds—parol contract for the purchase of lands—as between, the parties—equity will enforce—unless the statute is pleaded. That, by the verbal agreement between, 0 and H, an express trust was created, which, had 0 filed his bill against H to have executed, a court of equity would have enforced, unless H had interposed the statute of frauds as a defense.</p> <p>8. Same—statute can not be pleaded by strangers to the contract. That petitioner, being,a stranger to this agreement, can not object, that because it was not in writing it is, therefore, void under the statute of frauds. This statutory defense is personal, and can not be made by persons who are neither parties nor privies to the agreement</p> <p>4. Former decisions. In the cases of Blain v. Harrison, 11 Ill. 384, and Summers v. Babb, 13 ib. 483, the rule is too broadly stated, if it was intended to hold that the right of dower can only be released to the owner of the fee.</p> <p>B. Dower—to whom it may be rdeaseed. Dower may be released to the owner of the fee, or to a person in privity with the estate, who can not assert the dower right against the owner of the fee. Hence, a tenant of the freehold, an equitable owner, a purchaser from the owner of the fee, although his contract be unexecuted, or one who has warranted the title, may become a releasee of the dower right.</p> <p>6. Chancery pleading—variance between the proof and answer. And in this case, it is no objection that the evidence varies from the answer oí the defendants, the material allegation therein, and which constitute^ a good defense, having been proved.</p> <p>7. And in such case, the proof showing that the petitioner, tin two occasions, attempted to divest herself of this right, and that in each instarme, she and her husband received a satisfactory consideration for its relinquishment, under such circumstances, nothing but the stern and inflexible rules of lawi should entitle her to dower in the premises.</p>

<p>Former decision. The views expressed by this court, in a former opinion delivered in this case, and reported in 37 Ill. 460, are not changed by the facts in the record now presented,</p>

<p>1. New trial—verdict against the •evidence. An appellate court will not disturb the verdict of a jury merely because the evidence is conflicting, or because there may be doubt as to its correctness. It must be clearly wrong to require it to be set aside.</p> <p>2. Instructions—need not be repeated.’ Where an instruction is asked which is a repetition, in substance, of one already given, it may properly be refused.</p> <p>3. Same—must be based upon the evidence. An instruction which is not based upon any evidence in the case, should not be given.</p> <p>4. Impeaching a witness. A mere conflict of testimony is not what is called impeaching evidence.</p> <p>6. Practice—of raising a question by an instruction. In an action of replevin for a colt, it appeared that while the animal was in the possession of the plaintiff, the defendant, claiming to be th'e owner, obtained permission to take it home with him, upon the condition, that if, after his family had examined the colt, they would not identify it as his, upon oath, before a justice of the peace named, he would return it the same day, the evidence showed that the defendant neither procured the evidence nor returned the colt. Instructions were given, based upon the hypothesis that neither party owned the colt: Held, if the plaintiff desired to raise the question whether the defendant was bound to return _ the animal when he failed to make the proof proposed, he should have asked an instruction presenting that question.</p>

'Appeal from the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding. This was an action of assumpsit, brought by Benjamin Hartley against Zenas Hartley, wherein the plaintiff obtained a judgment for $25, from which he appealed to this court.

<p>New trial—verdict against the evidence. Where a verdict is manifestly against the evidence, a new trial will be granted.</p>

Eeastus S. Williams, Judge, presiding. This was an action of assumpsit, brought by Brewster, Templeton & Co., in the circuit court of Cook county, against Martin & Hogue, upon an account of which this is a copy: “ Messrs. Martin & Hogue, In account with Brewster, Templeton & Co. 1861. Sept. 14.

<p>Writ of Error to the Circuit Court of Kane county; the Hon. Sylvanus Wilcox, Judge, presiding.</p>

William A. Pobteb, Judge, presiding. This was an action brought in the court below, by George W. Adler, against The Board of Trustees of the Illinois and Michigan Canal, to recover damages alleged to have resulted from a collision of the plaintiff’s canal boat with a sunken wreck in the canal. A trial was had and a judgment in favor of the plaintiff. The defendant thereupon took this appeal.

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought in the court below, by Haslrin and others against Wallbaum. The defendant pleaded the general issue, and filed his affidavit of merits. The cause was placed upon the trial calendar, and set down for trial on Friday, the 27th day of December, 1867.

W. W. Heaton, Judge, presiding. This was a bill in chancery, filed in the court below by the appellees, Anning O. Campbell, Franklin O. Smith and William Lockwood, against the appellants, Augustus T. Johnson, James E. Sansor, and John L. Easier, to enjoin the collection of a tax, levied to pay indebtedness incurred on account of bounties paid to volunteers, to fill the quota of the town of Byron, and which tax was authorized by the act of January 18th, 1865, p. 100, Private…

<p>1. Constitutional law—general ride of construction. The presumption is, that every law passed by the legislature is in conformity with the constitution, unless the contrary be shown, and it must be a clear and palpable case, before the court will undertake to decide an act of a co-ordinate department of the government was beyond their constitutional competency to enact.</p> <p>2. Taxation or national bank shares—under the act of 1867. The provision of the act of June 13,1867, requiring the assessment of shares in banks to be made for the year 1867, with regard to the ownership and value of such shares on the first day of July, 1867, instead of the first day of the preceding April, does not violate the principle of equality and uniformity established by the constitution.</p> <p>3. But if in making an assessment under that act, the valuation of the shares was determined on the first day of July, and the law required it should be determined as of the first day of April, it would be necessary for the owner of the shares, calling upon a court of equity for relief, to show that he has been injured thereby—that by reason thereof, the valuation put upon them on the first day of July, was greater than they justly bore on the first day of April preceding, or that he was compelled to pay a double tax, first on the money listed for taxation on the first day of April, and again on the bank shares he purchased with this same money between that day and the first day of July.</p> <p>4. Where a particular species of property has been omitted from taxation for a given year, the legislature have the power to pass a special law to cure the omission.</p> <p>5. So the tax on national bank shares not having been legally assessed for the year 1867, by reason of the defective law under which it was attempted, the act of June of that year, was designed to supply the omission, and there was no want of constitutional power to enact it.</p> <p>6. In assessing the shares in national banks under State authority, it is not necessary that they shall be included in the list of other personal property, so that upon aggregating the personal property, shares included, the taxable portion would be shown by what remained after the deduction for debts was made, as provided by the general revenue law. It is quite immaterial on what portion of the list these shares are found.</p> <p>7. Under the act of 1867, a system of taxation for bank shares was designed, peculiar to itself, and independent of the general revenue system of the State. The only deduction allowed by the act, from the shares of each owner, is a proportionate sum for the real estate in which a portion of the capital might be invested. No deduction for debts owing by the owner can be made from the valuation of his bank shares.</p> <p>8. Nor is this discrimination in not allowing a deduction from the valuation of bank shares, for debts owing by the owner, as is allowed to be made from the valuation of other personal property under the general revenue law of the State, contrary to the limitations imposed by the proviso of the 41st section of the national banking act of June 3, 1864, which provides that shares in those banks shall not be taxed under State authority “ at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such States.” The “ rate ” of taxation is not affected by the different modes adopted to ascertain the taxable value of the various kinds of property.</p> <p>9. Should a collector be compelled to sell the bank shares for the non-payment of taxes, under the act of 1867, and the bank refuse to transfer them to the purchaser on the books of the bank, a court of chancery, on a bill filed for such purpose, would compel the transfer.</p> <p>10. Or if the taxes upon such shares remain unpaid through the dividends, as provided by this law, the State could by mandamus compel the officers of the bank to appropriate the dividends, or such portions as might be necessary to pay the taxes.</p> <p>11. Notice of assessment. No actual notice of the assessment of bank shares is required to be given to the owner, the act requiring only that notice shall be published in a newspaper a certain length of time.</p>

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

<p>Writ of Error to the Circuit Court of Stephenson county; the Hon. Bbujamot E. Sheldoh, Judge, presiding.</p>

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

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

Appeal JErom the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding. This was an action of assumpsit, brought in the court below by Bramhall, against Dull & Cowan, to recover for work and labor.

<p>Appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.</p>

Sabin D. Puterbaugh, Judge, presiding. This was an action in assumpsit, brought by the appellee, Norris S. Barbour, in the court below, against the appellant, Granderson B. Phares, and William Croka and Thomas J. Hoffman, upon a note given by them to appellee to secure a debt of Hoffman’s. Appellant and Croka signed as sureties, at the request of appellee. The facts in the case are fully stated in the opinion.

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

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

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

<p>1. Homestead exemption—abandonment. B and wife executed to C a conveyance of their homestead, but the deed did not operate to release the homestead right. B continued in the occupancy of the premises after the execution of the deed, under a lease from 0, and paid rent therefor. Subsequently B died, leaving a wife and one child, who remained in possession for a time, when the widow intermarried with one M and removed to another town, taking the child with her, and leased the premises to A, appropriating the rents to the education of the child. Held, in an action of ejectment brought by C against A, that the homestead right was lost by act of B’s widow in abandoning the possession, and that C was entitled to a recovery.</p> <p>2. Same—exemption is not lost—by the act of the grantor in taking a lease from his grantee. By the mere act of B in taking a lease of the premises from C after the conveyance, and paying rent therefor, no forfeiture was incurred of the right to assert the homestead exemption, either on the part of B in his lifetime, or his widow and child after his death, while they continued to occupy the homestead.</p> <p>3. Same—abandonment. But B’s widow, by her intermarriage with M, and removal with her child to a different town and taking up her residence upon premises owned by her husband, acquired a new home, and by its acquisition lost the right of homestead in the premises.</p> <p>4. Same—intention of returning must be clear. In such cases, the proof of an intention on the part of the claimant to return and occupy the homestead, must be clear and satisfactory, in order to preserve the right.</p> <p>5. Former decisions. The cases of Booker v. Anderson, 35 Ill. 67 ; Moore v. Dunning, 29 ib. 130; White v. Clark, 36 ib. 285 ; Moore v. Titman, 43 ib. 169, and Cubeen v. Mulligan, 37 ib. 230, cited and considered, the last two cases being held to fully govern the present one.</p> <p>6. Same—abandonment by the widow—deprive the children of the right. After the death of B his widow became the head of the family, and by her marriage, and abandonment of the homestead, the child also lost the right to claim the statutory privilege as completely as if the abandonment had occurred during the life of B and by his act.</p>

Arthur A. Smith, Judge, presiding. This was an action of trespass, for an alleged illegal arrest, false imprisonment, and alleged assault and personal injury, brought by the appellee, Michael Smith, against the appellants, Gustavus A. Marsh and Robert E. Pollock. The defendants pleaded the general issue, and also a joint plea justifying the alleged trespasses.

<p>1. Hew trial—verdict against the evidence. In this case a new trial was awarded on the ground that the verdict was against the evidence.</p> <p>2. Instructions—naming a witness—and directing the attention of the jury to his conduct white testifying. An instruction is not objectionable for the reason merely that it points out a witness by name, and directs the jury to take into consideration his conduct while testifying, as affecting his testimony. Where such an instruction is given, this court will presume that the manner of the witness justified and called for it.</p>

Wkit of Ebbob to the Superior Court of Chicago. This was a bill in chancery in the Superior Court of Chicago, exhibited by William Smith against Suel Wright, Patrick Rourk, James M. Adsit, and the Trustees of Schools of township 24, north range 6 in Grundy county.

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

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

Sabin D. Putebbaugh, Judge, presiding. On the 26th day of April, 1850, George Morton, being the owner in fee of block 104 in Morton, Voris & Laviell’s Addition to Peoria, conveyed the same to his son, Peter Morton, in consideration of one dollar and natural love and affection, and .“.upon this express condition, that the said grantee shall not coftve-y the above property, except by lease for a term of years, -tojauy person whomsoever, prior to January. 1st, 1861.” On the 9th…

George Mahterre, Judge, presiding. This was a suit in chancery instituted in the court below by John S. Phillips, against John Phillips, and othérs. The bill alleges a partnership between the parties, asks that it may be dissolved,- and for an account. Hpon the final hearing below, the court found that a partnership existed, and decreed that it be dissolved and an account taken. The defendant, John Phillips, thereupon took this appeal.

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

Writ of Error to the Circuit Court of Clark county; the Hon. H. B. Decitts, Judge, presiding. This was an action of replevin, originally brought before a justice of the peace, by the defendant in error, Samuel J. King, against the plaintiff in error, Daniel Ellington, for the recovery of a horse. The plaintiff obtained a verdict and judgment before the justice, and the same result followed upon an appeal to the circuit court of Clark county.

Charles Turner, Judge, presiding. This was an action of assumpsit, brought in the court below by the appellants, William S. Rankin, J. Thomas Rankin and Jesse Taylor, against the appellees, Joseph Taylor, Benjamin W. Taylor and John J. Taylor, which resulted in a verdict and judgment for the defendants. To reverse this judgment, the record is brought to this court by appeal.

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

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of replevin, instituted in the court below, by the appellees, James M. Kerr, George W. Howe and John H. Turner, against the appellant, the Ohio & Mississippi Railway Company, to recover a quantity of flour. The cause was tried before the court and a jury, and a verdict and judgment rendered for the plaintiffs; to reverse which judgment, the record is brought to this court by appeal.

Arthur J. Gallagher, Judge, presiding. This was an action of assumpsit, brought in the court below, by the appellant, Thomas Weaver, against the appellee, John Crocker, and which resulted in a verdict and judgment for the plaintiff for $462, to reverse which judgment the record is brought to this court by appeal. The facts in the case are fully stated in the opinion.

<p>1. Error—writ of-—will lie to county court to review proceedings granting an ordo• 'to sell the real estate of decedents. A writ of error will lie to the county court, to review the proceedings of that court in granting an order to sell the real estate of a deceased person, on application by the administrator. Unknown Heirs of Langworthy v. Baker, 23 Ill. 484.</p> <p>2. Executors and administrators—real estate of decedents—cannot he sold— except to pay existing debts. An order to sell the real estate of a decedent will not be made except to pay debts due and owing at the death of the decedent. Dorman et ux. v. Tost, et al., 13 Ill. 127.</p> <p>3. Same—order to sell real estate to pay debts contracted by the administrator— void. And an order of the county court directing the sale of the real estate of a deceased person, to pay debts which were created by the administrator after the death of the intestate, is void.</p> <p>4. Same—the expenses of unnecessary administration—not such a debt as would justify a sale of the land. And where, at the time letters of administration are granted, there are no debts existing, and no question of distribution requiring the intervention of an administrator, the expense of administering, the result of unnecessary interference, cannot be regarded such a debt as would justify a proceeding to sell the land to pay it.</p> <p>5. Same—administration—letters of-—when may be issued after the lapse of seven years after the death of a decedent. The lapse of seven years after the death of a decedent constitutes a bar to granting letters of administration, but which bar may be removed by showing circumstances which prevented an earlier application for them.</p>

<p>Appeal from the Circuit- Court of Mason county; the Hon. Charles Turner, Judge, presiding.</p>

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

Edwabd T. Bice, Judge, residing. This was an action on the case, brought in the court below, by the appellee, against the appellant, to recover damages for injuries alleged to have been sustained by him from falling into a sewer which was being made in one of the streets of the city. The defendant pleaded the general issue, and two special pleas.

<p>1. Negligence—liability of railroad company—for injuries to passengers. In an action against a railroad company, for injuries received by the plaintiff, from the upsetting of one of defendant’s cars, when traveling upon its road, where the proof showed that the track where the accident occurred was in a wretched condition, the rails being badly worn and insecurely fastened, of various lengths, loose at the ends, and with spaces between the joints, which were filled with wooden plugs, and that some of the ties were broken in the middle: Held, that this was such gross and wanton negligence on the part of the company as to render it liable for the injury resulting therefrom.</p> <p>2. Railroad companies—required to know the condition of their roads. Railroad companies are bound to keep themselves informed as to the condition of their tracks, and to know whether they are in a fit condition for the safe passage of their trains or not.</p>

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

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

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

<p>1. Motion^—must be preserved by bill of exceptions. Where the action of the circuit court upon a motion to remove a cause from the State to the Federal court, is assigned for error, such motion only becomes a part of the record, and is properly before the court for review, by means of a bill of exceptions.</p> <p>2. Verdict—in assumpsit. A jury returned as their verdict in an action of assumpsit: “ We, the jurors in the case of Isaac Vanduzor v. The Hartford Fire Insurance Company, find for the plaintiff, and fix the judgment at five hundred dollars in his favor.” Held, that this was sufficient in substance, and that the court might have reduced it to form; and that under the statute of amendments and jeofails, it must be treated as amended and reduced to form.</p> <p>3. Practice^—pleadings lost—may fie supplied, by copies. It is a familiar rule of practice, where the pleadings in a cause are lost, to permit them to be supplied by copy. And in cases where the papers have been mislaid,' or are in the hands of one of the parties, or his attorney, and cannot be had, the court may, in 'the exercise of a sound discretion, permit them to be supplied by copies, in order to avoid a continuance of the cause.</p> <p>4. Same—papers filed in a came—should not be removed—unless by leave of court. All papers filed in a cause should be preserved by the clerk in his office, and should not be removed therefrom except by leave of the court.</p> <p>6. Hew trial—because attorney did not know when the term, of the court was held—at which judgment was rendered. A new trial will not be awarded, on the ground merely, that the attorney of the party against whom judgment was rendered did not know when the term of the court was held at which the judgment was taken, and hence failed to appear and defend the suit.</p> <p>6. Same—to entitle party to a new trial—he must show diligence. The time for holding the various courts of this State is fixed by statute, and it is the duty of attorneys and parties to know, and the law charges them with a knowledge of, the time so fixed, and if they neglect to inform themselves, the effect is the same as if they had actual knowledge, and failed to attend. In such case, a party, to entitle himself to a new trial, must show that he has used reasonable diligence.</p>

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

<p>1. Lease—waiver of forfeiture—what acts of lessor will amount to. Where the right had accrued, to declare a lease forfeited for non-payment of taxes which the lessee had covenanted to pay, and thereafter the lessor accepted from the lessee a year’s rent in advance, and shortly after assigned the lease to another: Held, that these acts of the lessor amounted to a waiver of the forfeiture.</p> <p>2. Same—assignee—bound by assignor’s acts. Nor in such case, does the assignee of the lessor acquire any right to declare a forfeiture, that right having been waived by the acts of his assignor.</p>

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

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

James Harriot, Judge, presiding. This was an action of debt upon an injunction bond, instituted in the court below, by the appellees, Charles E. Parker and Charles Sprague, for the use of Charles Sprague, against the appellant, Horace Billings, impleaded with Frederick Potter. The further facts in this case are fully stated in the opinion.

<p>1. Two nihils—in proceeding to foreclose a mortgage by scire facias. In a proceeding to foreclose a mortgage by scire facias, a judgment of foreclosure may be entered without personal service, upon a return of two nihils upon writs issued and returnable to different terms of the court, notwithstanding both writs were returned on the same days they were issued.</p> <p>2. Judgment in such case—its form. The judgment in a proceeding by scire facias to foreclose a mortgage, found the amount due upon the mortgage, and directed, first, that the plaintiff recover of and from the ■ defendant the sum so found to be due, and then awarded a special execution for a sale of the mortgaged premises. This was held to be a judgment in rem and not in personam.</p>

James Steele, Judge, presiding. ■This was a proceeding commenced in the county court of • Edgar county, by John W. Shank, county treasurer and collector, at the July term, 1868, to procure a judgment and an order of sale of the delinquent lands in said county. The defendant appeared by attorney, and resisted the application. .

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

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