Volume 5 — Scammon's Illinois Reports

This was an action of replevin, instituted in the Peoria circuit court, in the name of Robert O’Niel and Andrew Gray, against Christopher Orr and others, for a steamboat called The Tennessee. Held: that the sale and purchase were bona fide, and that the property could not be seized on exe- [* 3] cution, in favor of a creditor.

<p>Error to Gallatin.</p> <p>1. Contract — construed. A. & Co. being indebted to a bank in the sum of $10,959.09, upon promissory notes, bearing interest at eight per centum per annum, to secure their payment, executed to the bank a mortgage upon a stock of merchandise, and authorized the bank, if it should deem it necessary for its security, before the falling due of the notes, to take possession of the property mortgaged, and sell the same, applying the proceeds in payment of the notes. The bank having determined to take possession of the property, A. & Co. sent a note to the bank, stating that if certain persons named in the note should be appointed to take possession of, and sell the goods, and if the same should be sold on a credit of twelve months, they would peaceably deliver the possession of the property to the bank. These persons were appointed, and the merchandise was accordingly sold by agreement of both parties, on a credit of twelve months, and notes taken from the purchasers, bearing interest after six months. The cashier of the bank soon after presented an account to A & Co , containing a statement of the amount of sales, and the interest upon the sale notes for the last six months they had to run, and also the amount of the two promissory notes due from A & Co. to the bank, and the interest thereupon, at the rate of eight per centum per annum, from their dates to the maturity of the sale notes ; and thus balanced the accounts between the parties. At the same time the bank surrendered to A & Co. their two notes, which he received without making any- objection to the charge of interest up to the maturity of the sale notes; but about one year afterwards he called upon the bank to refund this interest. The bank refused, and A brought suit against the bank to recover it':' Held, that the bank was entitled to interest until the maturity of the sale notes ; and that the suit could not be maintained.</p>

This cause was heard in the court ■ below, at the November term, 1838, before the Hon. Theophilus W. Smith and a jury. cited Chit, on Cont. 467; Dedman v. Williams 1 Scam. 154; 2 Story’s U. S. Laws, 1120, 1155, 1210, 1234, 1276, 1295, 1305, 1493; 3 Ibid. 1577, 1678, 1737, 1772, 1775, 1807, 1839, 1926, 1941, 2021; 4 Ibid. 2128-9, 2307.; R. L. 132, §11, 135, §17.

ON the 21st of April, 1841, Archibald R. Henderson filed his bill in chancery in the Fulton circuit court, against James W. Willis, Franklin P. Offield, James S. Turner, and Lewis Howell. The bill charges that James W. Willis on the first day of June, 1886, executed and delivered to the complainant, a mortgage deed for the following property, to wit: 60 acres off of the west line of the N. W. qr. of S. 2.

This cause was heard in the court below, at the October term, 1840, before the Hon. Wm. Thomas. It was brought to this court by writ of error. relied' upon the following points and authorities: I. The taking of interest in advance, for the whole term of a loan, is manifestly an infraction of the “act to regulate the interest of money,’’approved Feb. 28, 1833. R. L. 348; Gale’s Stat. 343.

This cause was heard in the court below* at the October term, 3842, before the Hon. Samuel D. Lockwood. The facts of the case appear in the opinion of the court. . 1. Courts and juries will understand words in the same way [* 31] that other people do. The doctrine of construing words in mitiorisensu lias long since been exploded. Demaret v. Haring, 6 Cowen 77, 87; 3 Cowen 239. 2. The words alleged to have been spoken are actionable.

This cause was beard in tbe court below, at the October term, 1837, before tbe Hon. Sidney Breese. The bill was dismissed, and tbe cause brought to this court by the complainant, by writ of error. 1 Mad. Chan. 361, 267, 269, 586 ; 2 Mad. Chan. 97, 113, 189 ; Toller’s Ex. 143 note, 154, note, and 191; 3 Bac. Abr. 65; Sug. on Yend. 37, 195; 3 Yes. 127; 9 Yes. 246; 11 Yes. 195; 4 T. R. 329; 2 P. Wms. 203; Hov. on Frauds 471; Roberts on Frauds 97; 1 Wils. 21; 1 Johns.

This, was an action of debt, instituted in the Sangamon circuit court, by the appellees against the appellants. The declaration contains two counts. The first is for rock sold and delivered, and for work and labor.

This cause was heard, in the court below before the Hon. John Deah Catón, at the September term, 1842. Verdict and judgment were rendered for the plaintiff for $250 damages. The defendant brought the cause to this court by writ of error. The facts appear in the opinion of the court. as to the point that the defendant should have been permitted to prove the general bad character of the defendant, cited 2 Cowen ,813; 4 Phil.

This cause was heard in the court below at the June term, 1840, before the Hon. Thomas Ford and a jury. [* 49] Verdict and judgment were rendered for the defendant, and the cause brought to this court by writ of error. cited R. L. 420 ; 1 Scam. 170, 406, 533 ; Laws of 1831, 1837, 1838 and 1839, in relation to improvements upon public lands ; 2 Scam. 31; 2 Chit. Eq. Dig. 1330; 12 Johns. 299. cited 1 Chit.

[* 52] This cause was heard in the court below, at the April term, 1842, before the Hon. Thomas C. Browne and a jury. Verdict and judgment were rendered for the plaintiff, and the defendants appealed to this court. cited 1 Comyn’s Dig. 101, 199, 202; 8 East 280; 5 East 251; 2 Johns. 842; Stepli. Plead. 296, 384, 881; 19 Wend. 408.

<p>This cause was heard in the court below, at the September term, 1841, before the Hon. Thomas C. Browne.</p> <p>cited Nye v. Wright, 2 Scam. 222; Weatherford v. Wilson, 2 Scam. 256.</p>

, This cause was heard in the court below, at the September term, 1841, before the Hon. Thomas C. Browne. Judgment was rendered for the plaintiff for §139.80 damages and costs of suit.

This was a suit in chancery in the Vermilion circuit court. The proceedings in this cause previous to the May term, 1842, • were had before the Hon. Justin Harlan. Those at the said May term were before the Hon. William; Wilson.

This cause was tried in the McLean circuit court, at the September term, 1842, before the Hon. Samuel H. [* 57] Treat. Judgment was rendered for the plaintiffs for $979.87 damages, and costs of suit. The defendants appealed to this court, where the cause was submitted without argument.

This cause was heard in the Lee circuit court, at the May term, 1842, before the Hon. Thomas C. Browne. The cause was submitted to a jury, who found a verdict for the defendant. The plaintiffs appealed to this court.

<p>Appeal from Sangamon.</p> <p>x. Statute — construed. The statutes passed in February, 1841, in relation to the construction of so much of the Northern Cross railroad as lies between the Illinois river and Springfield, gave to the fund' commissioner full power over this road, from Springfield to the Illinois river; and in completing it from Jacksonville to the first, named place, he was not restricted to any point in or near Springfield, as the place of termination ; that was left to his judgment.</p> <p>2. Same — same. None of the statutes, in relation to the construction of the Northern Cross railroad, can be so construed as to impose an obligation on the state, by accepting donations for depots, etc., to carry out any part of the railroad system according the original design.</p> <p>2, Same — same. The statute authorizing the donation and acceptance of lots oí land for depots and turnouts, on the Northern Cross railroad, can only be regarded as a declaration on the part of the state, to the effect, that if it should be deemed advantageous to the public interests to make a turnout and depot, at the place designated, they shall be placed on the lots donated; that they shall be used for that purpose, whenever it becomes necessary to use them ; but it does not prohibit the construction of turnouts or turning tables elsewhere. No obligation rests upon the state, by any law, to establish these works on the lots granted, or at any other particular place. The state cannot be hampered, or her policy controlled, by any such donations. Sem-ble, That if the lots are not used by the state, a reconveyance of them could be enforced.</p>

This cause was beard in the court below, at the September term, 1842, before the Hon. Samuel D. Lockwood. cited R. I. 611; Fairfax v. Turpin, 1 Wash. 76; 4 Kent 510; 6 Cruise’s Dig. 6; 1 Ohio Cond. R. 745; R. L. 131; Jackson v. Howell, 17 Johns. 281.

- This cause was tried in the Madison circuit court, at the April term, 1842, before the Hon. SIDNEY Breese. The facts sufficiently appear in the opinion of the court. The cause was argued by The plaintiffs claim to recover in this action by virtue of two titles: one a tax title derived from the town of Alton, and the other a title by sheriff’s deed, on 'a sale made under judgment .and execution against Pinckard, one of the defendants.

This cause was heard in the Madison circuit court,- at the April term, 1841, before the Hon..Sidney BREESEand jury. Verdict was rendered for the plaintiffs for f920.35 damages, upon which judgment was rendered. The defendant brought the cause to this court by writ of error. The facts of the case appear in the opinion of the court. The declaration is insufficient for the plaintiffs below to maintain their suit.

This cause was heard in the court below, at the March term, 1842, before the Hon. Samuel D. Lockwood. cited 1 Chit. Plead. 257, a, b, 258; Williams v. Carwardine, 24 Eng. Com. Law R. 126,457 ; 1 Maulé and Sel-wyn 108.

This cause was heard in the court below, at the September term, 1841, before the Hon. Stephen A. Douglass, who gave judgment for the defendants, upon demurrer to the declaration. The plaintiff brought the cause to this court by writ of error.

<p>Appeal from Peotia.</p> <p>1. Vendor and vendee — vendor's lien. Where a person who knows himself to be insolvent, by means of fraudulent pretences or representations, obtains possession of goods under a pretence of purchase, with the intention not to pay for them, and with the design to cheat the vendor out of them, a court of chancery will set aside the sale, and order a return of the goods, if they have not passed into the hands of a Iona fide purchaser, or the vendor may bring a replevin or trover, (a) </p> <p>2. Same — fraud in purchase. In order to set aside a sale of goods for fraud in the purchaser, such a case must be made out as would authorize a jury to convict the purchaser of obtaining the goods under false pretences. In such a casethe quo animo with which purchases are made, whether the purchaser expected or intended to pay for the goods when he purchased them, or whether he intended to cheat the vendor out of them, is the very gist of the fraud, (b) </p> <p>3. Same — -insolvent vendee. While a man is really struggling against adversity, with an honest intent to retrieve his fortunes, the law will not declare him incapable of purchasing goods on a credit, although he does not disclose to his vendor the extent of his embarrassments.</p> <p>4. Same — -false pretences. Semble, That to sustain an indictment for obtaining goods under false pretences, it should appear that the means used to deceive and defraud were such that a man of ordinary prudence might have become the dupe of the deception.</p> <p>5. Evidence — false pretences. What circumstances will not amount to proof of an intent to obtain goods under fraudulent pretences; and under what circumstances a witness will not be considered credible.</p>

The proceedings in this cause, in the court below, were had before the Hon. William Thomas. cited 1 Marshall 464 ; Breese 43, 88 ; 1 Scam. 387 ; 2 Scam. 186 ; 6 Johns. 286 ; Hardin 410; Tomlin’s Law-Diet. 290; 2 Lili. Ent. 103 ; .3 Levinz 430 ; Ram. on Judgt. 2 ; 3 Blac. Com. 395, 406 ; 1 Paine and Duer’s Pract. 601; 2 Tidd’s Pract. 932. relied upon the following points and authorities: First.

This cause was heard in the court below, at the November term, 1841, before the Hon. Samuel D. Lockwood, with- [* 118] out a jury. Judgment was rendered for the defendant, and the plaintiff brought the cause to this court by writ of error.

This cause was heard in the court below, at the No- [* 125] vember term, 1840, before the Hon. Thomas Foed. The bill recites the bond, and the answer does not deny its execution, but merely states that the defendant does not know that it is correctly recited in the bill. The bond was acknowledged. Exhibits referred to in, and made part of the bill, are always read at the hearing, without proof of execution, unless there is a direct denial of the execution in the answer. .

This cause was heard in the court below, at the April term, 1840, before the Hon. Wm. Thomas. The facts of the case are sufficiently shown in the opinion of the court. I. The first plea of the defendants is bad; 1. Because the acts recited are constitutional. It is only in a clear case that the judiciary will interfere to declare a law passed by the legislature unconstitutional. 1. Peters’ Cond. R. 211.

This cause was decided in the court below at the October term, 1841, before the Hon. Samuel D. Lockwood. The facts sufficiently appear in the opinion of the court. cited 1 Stark. Ev. 106, 117 ; Cowper 621. A defendant in chancery may take the deposition of his co-defendant, in relation to matters in controversy, ifl which he is not interested. Bac. Abr., title Evidence,letter A,4; 2 Mad. Chan.415 ; 1 Hoff. Chan. Pract. 485.

This was an action of ejectment instituted by the plaintiffs in error against the defendant in error, in the Adams circuit court.

This cause was heard in the court below, at the September term, 1842, before the Hon. Sidney Breese. A decree was rendered for the complainant for $12,224.30 and costs of suit. The defendants brought the cause to this court by writ of error.

This cause was heard in the Fulton circuit court, at the [*148] August term, 1842, before the Hon. Stephen A. Douglass. Held: that the silence of the administratrix as to her claim of dower was such a fraud on the purchaser, as to preclude her from afterwards setting up such claim against him or his assigns. Dougrey v: Topping, 4 Paige 94.

The proceedings in this cause were had at the December term, 1841, of the Sangamon circuit court, before the Hon. Samuel H. Treat.

<p>This cause was heard in the Scott circuit court, at the March terra, 1842, before the Hon. Samuel D. Lockwood.</p> <p>cited 1 Pirt. Dig. 246, § § 16, 23, 27; 2 Pirt. Dig. 93, § 44; 1 Monroe 66; 5 Monroe 80, 249; 6 Monroe 254; 7 Monroe 548, 687; 1 J. J. Marsh. 823; 2 J. J. Marsh. ID.</p>

The proceedings in this cause at the August term, [f 160] 1839, of the court below, were had before the Hon. . Sidney Breese.

The proceedings in this cause in the coprt below were had at the May term, 1843, before the Hon. James Semple. Judgment was rendered for the defendants, and the plaintiffs brought the cause to this court by writ of error. cited R. L. 168-9, 209, 214, 286, 288-9, 292,- The People v. Rockwell, 2 Seam. 4; 18 Johns. 243 ; 2 Cowen 538; Muller 97; 2 Conn. 490 ; Acts of 1839, 271.

This cause was heard in the Madison circuit court at, the October terúi, 1839, before the Hon. Thomas Ford, without the intervention of a jury. The court found for the plaintiff, and rendered judgment against the defendant for “150, one half to the use of Abraham S. Fishbourne, the informer in this cause, and the other half to the use of the said county of Marshall.” The defendant excepted to the judgment and brought the cause to this court by writ of error.

This cause was beard at the April term, 1841, of the Winnebago circuit court, before the Hon. Thomas C. Beownb and a jury. Verdict and judgment were rendered for the plaintiff for $93. The defendants appealed to this court.

This cause was heard in the St. Clair circuit court, at the April term, 1841, before the Hon. Sidney Breese. The' opinion of the court contains the statement of the case, except the fact that the indictment did not charge that the offence was committed on any particular day, but at divers and sundry times before and after a particular day named. The indictment does not follow the language of the statute in setting forth the offence. It. L. 199.

This cause was tried in tbe Peoria circuit court, at the October term, 1842, before the Hon. John. Dean Catón and a jury. Authorities cited for the appellants: A carrier for hire is responsible only for ordinary neglect, unless he by express contract assumes the risk of a common carrier. Robinson v. Dunmore, 2 Bos. & Pull. 416. A special acceptance of goods limits the responsibility of the carrier.

The proceedings in this cause were had at the November term, 184-3, of the Sangamon circuit court, before the Hon. Samuel H. Treat.

<p>Appeal from Peoria.</p> <p>1. Appeal — jurisdiction of justice. The “ act to amend the several laws in relation to appeal bonds and the trial ol appeals,” approved March 2,1839. inhibits the appellant from objecting, in the circuit court, to the sufficiency of the summons issued by the justice, the service thereof upon him, or to “any illegality or irregularity in the proceedings of the justice,” in cases where no summons is by law required to be issued ; as in cases of trial and judgment, without process, by consent, suits commenced by attachment,trials of right of property, etc. (a) But the appellant may still object, in the circuit court, that the judgment of the justice was rendered against him wholly without his knowledge or consent, where no summons or other process whatever has been issued against him, or where there has been no service of the process upon the defendant, and no notice to him, actual or constructive, of the pendency of the suit before the justice. In these cases, andin no other, where the justice has jurisdiction of the subject matter of the suit, the circuit court should, on motion of the appellant, dismiss the suit, and reverse the judgment.</p> <p>2. Same — same. Objections to the proceedings of the justice, on the ground that the defendant has had no notice, or but an insufficient notice of such proceedings, are</p> <p>in the nature of a plea in abatement to the jurisdiction of the justice, and are [*175] required to be made at the first moment at which the defendant is able to make them. Where he has had no notice, this is on appeal to the circuit court; but it is otherwise, where the defendant has had notice of the proceedings before the justice, although not strictly such as the’law requires. (b) </p> <p>3. Case, etc. — affirmed. The doctrine in the case of Evans v. Pierce, 2 Scam. 409, is re-affirmed.</p>

<p>This cause was heard in the court below, at the September term, 1842, before the Hon. Samuel D. Lockwood.</p>

This cause was heard in the court below at the September term, 1842, before the Hon. James Shields. cited 4 Blac. Com. 147 ; Arch. Crim. Plead. 380 ; 1 P. C. Hawk, 613 — 16 ; Crim. Code § 115-17. Where the statute defines a criminal offence the indictment should describe it according to the statute. R. L. 207, § 152; Arch. Crim. Plead. 46.

<p>Appeal from Sangamon.</p> <p>1. City of Springfield — mayor. The mayor of the city of Springfield is a local officer, and can exercise only such powers as are clearly conferred on him by law. In the exercise of criminal jurisdiction, he is restricted to such offences as are committed within the territorial limits of the city. In the exercise of civil jurisdiction, he is confined to cases in which the cause of action arises within the city, and to cases where the parties to be summoned before him are served with process in the city.</p> <p>2. Same — same. Where the mayor of the city has jurisdiction over the subject matter of the offence or action, the marshal can serve the process any where in the county; and he can proceed in the same manner in the service of executions issued on judgments rendered by the mayor, in a case where he has jurisdiction, or in the service of subpoenas, (a) </p>

<p>This cause was determined in the court below, at the April term, 1842, before the H011. Sidney Breese.</p>

This cause was heard in the court below, at the September term, 1842, before the Hon. Samuel D. Lockwood. The act of 1886, authorizing the receipt of bank notes in payment of state and county revenue, and in payment of college, seminary, and school debts and interest, does not apply to this case. See Gale’s Stat. 580, 633 § 1, 624 § 3, 627 § § 9, 10, 12, 14; or if it does, it is so far void, being repugnant to the .constitution of the United States, Art. I. § 10.

This cause was heard in the court below at the October special term, 1840, before the Hon. John Pearson. cited R. L. 487, § 4; Gale’s Stat. 530; 4 Cranch. 92, 328 ; Hudson v. Johnson, 1 Wash. 10: Meech v. Churchill, 2 Wend. 630; Tarin v. Morris, 2 Dali. 115.

This cause was heard in the Pike circuit court, at the September term, 1889, before the Hon. Wm. Thomas, without the intervention of a jury. cited Miller v. Houck, 1 Scam. 501; Russell v. Martin, 2 Scam. 494; Hays v. Smith, 3 Scam. 428; Fulton Bank v. Stafford, 2 Wend. 483; Levy v. Gadsby, 3 Cranch. 180; 1 Phil. Ev. 131-2.

<p>The proceedings in tbis cause in the court below were bad before the Hon. Thomas C. Browne, at the August term, 1843.</p>

This cause was beard in the court below, at the May term, 1843, before the Hon. James Semple. relied upon the following points and authorities: The jury could not find the defendant guilty of a different offence from that laid in the indictment. Breese 197; 7 Porter 500; 1 Chit. Crim. Law 250 ; 12 Pick. 496, 504-7; 7 Missouri 180; 1 Chit. Crim. Law 644; 7 Bac. Abr. 32. No person can be presented criminally except by indictment regularly found. Breese 109; R. L. 31.

This cause was heard in the Morgan circuit court, at the October term, 1842, before the Hon. Samuel D. Lockwood, without the intervention of a jury, who rendered a judgment for the plaintiff for $850.50 damages and costs. The defendants -appealed to this court.'

This cause was heard in the Morgan circuit court, at the November term, 1842, before the Hon. Samuel D. Lockwood. cited 3 Blac. Com. 377; 1 Paine & Duer’s Pract. 544; 2 Wheat. 221; 4 Peters’ Cond. R. 101; 11 Wheat. 415, and note to 4 Peters’ Cond. R. 101; 1 Stark. R. 85; 2 Root 437, cited in 1 Stark. Ev. 386, note; 2 Stark. Ey. 148; Chit, on Bills, 9th ed. 177; Gould’s Plead, ch. x, §§ 55-6, 62; 5 Burr. 2661; 1 East 111; 1 Bay 490; 1 Scam. 387 ; Breese 174.

This cause was heard in the court below, at the October term, 1842, before the Hon. Stephen A. Douglass, who rendered the following decree:' “It is ordered and decreed by the court that the said bills and supplemental bills of the complainants be dismissed, and that the said complainants pay to the said defendants all costs by them herein expended in their defence to be taxed by the clerk of this court, and recovered by execution, as upon a judgment at law, and the parties…

The facts of tliis case are fully stated in the opinion of the Court. The legislature, in February, 1843, created tlie county of Marquette out of the then county of Adams. The question is as to the legal effect of this act. Did it of itself create a new county, and substitute a new government, withoút requiring any sanction on the part of the people of Marquette ?

The appeal in this cause was prayed and granted in the Mc-Donough circuit court, on the 22d day of October, 1842, upon condition that the defendant should enter into bond,-etc., within thirty days from that date. The December term, 1842, of the supreme court, commenced on the 1st Monday of December. The appeal bond was filed on the 22d day of November.

ON the 23d of May, 1840, the complainants filed in the circuit court of Peoria county their bill in chancery, setting forth in substance that Charles Ballance and one Samuel C. McClure having, in the year 1832, filed in the United States’ land office at Quincy proof of their right of pre-emption to the south west fractional quarter of section nine (9), township eight (8) north, range eight (8) east of the fourth principal meridian, in said Peoria county, and the said McClure…

The final proceedings in this cause were had in the Cook circuit court at the April term, 1841, before the Hon. Theophilus W. Smith.

This suit was determined in the court below at the August term, 1843, before the Hon. Thomas C. BkowNE. cited R. L. 67, § 45: 1 Peters’ Cond. R.'207 ; 1 Scam. 56, 547-8 ; 2 Scam. 1, 273, 259; 3 Scam. 133. cited Breese 96 ; 1 Scam. 554 ; 2 Scam. 260, 278 ; R. L. 67, § 11.

The proceedings in this cause were had in the court below, at the April term, 1841, before the Hon. Theophilus W. Smith. cited acts of 1835, 14; Gale’s Stat. 99; 2 Harrison 80.

This cause was heard in the court below at the April term, 1843, before the Hon StepheN A. Douglass. The injunction was dissolved and the bill dismissed, and the cause brought to this court by the complainants, by appeal.

This was an action of debt, brought by the plaintiff in error against the defendants in error, on a bond executed by the defendants to the plaintiff, in order to replevy a fee-bill issued by him fo the sheriff of Dupage county against Carpenter.

This cause was heard in the court below, before the Hon. William Thomas, at the November term, 1839.' The facts of the case are fully stated in the opinion of the court. The cause was brought to this court by writ of error; and at the last term an opinion was delivered reversing the decision of the court below. A motion was made for a re-hearing, which was granted, and the cause re-argued by J. A. McDougall, for the plaintiff in error.

This cause was heard in the Gallatin circtdt court at the May term, 1843, before the.Hon. Walter B. Scates, who rendered a judgment for the plaintiff for $77.88 and costs of suit. The defendant appealed to this court. cited 3 Scam. 118; 15 Peters 1. cited 1 Chit. Plead. 262.

The decree or order in this cause in the court below, dissolving the injunction, was made at the September term, 1842, before the Hon. William Wilson.

The proceedings in this cause, in the Morgan circuit court, were had at the June term, 1842, before the Hon. Samuel D. Lockwood and a jury. Verdict and judgment were rendered for the plaintiff for $210.54. The defendant appealed to this court. The facts appear in the opinion of the court. relied upon the following points and authorities: Mrst. The court below erred in admitting proof of execution, and return by the docket, without previous evidence of a judgment.

<p>Appeal from Brown.</p> <p>1. Jurisdiction — united but distinct. Notwithstanding the circuit courts are invested with equity, as well as common law jurisdiction, they are as distinctly separated, in their administration, as if vested in different courts.</p> <p>2. Process — law courts prevent abuse. Courts of law have a general supervisory power over their process, either mesne or final; and, according to the settled practice, may prevent or correct any abuse of it.</p> <p>3. Same — stay of proceedings. A party, out of term, intending to move to set aside or quash any execution, replevin bond, or other proceedings, may, under the statute, apply to a judge, at chambers, and, in his discretion, if probable cause appear, he may so certify, and stay all further proceedings, until the order of the court on the motion. Under this provision of the statute, or the general supervisory power of the court, a defendant in an execution, who is entitled to have his property appraised, and a sale prohibited unless it sells for two-thirds its appraised value, may obtain an order from the judge, to be endorsed on the execution, staying proceedings until the order of court. A party in such case has full and amp e remedy at law. (a) </p> <p>4. Same — interference of equity. A court of equity will not exercise concurrent jurisdiction with a court of law, unless some circumstances of fraud, irreparable injury, trust, accident, or the like, exist, to give the jurisdiction. (b) </p>

<p>Appeal from Monroe.</p> <p>1. Process — running to a term. Where a writ is directed to the sheriff, commanding him to summon the defendant to appear on the first day of the next term, to be holden, etc., without specifying the particular time, the summons is neither void nor voidable, (a) </p> <p>2. Presumption — knowledge of term day. The time of holding the circuit courts is fixed by law, and every person not only has the means of knowing, but is presumed to know, when that time is.</p> <p>3. Lost Note — defective averment. The declaration, in an action upon a lost note, alleged that the defendants made their note to A, who on the same day endorsed it to</p> <p>the plaintiff, and further averred, “ that the said note has been lost or mislaid, [* 334] and cannot be found or producedHeld, that the matters stated were not sufficient to maintain the action; and if every fact averred were proved upon trial, the plaintiff would not be entitled to recover.</p> <p>4. Same — necessary averments. Unless a lost note has never been endorsed, or the endorsement be special, a recovery cannot be had on it without showing an absolute dest-uction of the note; and when the declaration shows that the note is lost, these facts must be averred specially. (b) </p> <p>5. Same — semble. That where a lost note has not been endorsed at all, or has been specially endorsed, a recovery may be had by showing the loss of the note merely, and its contents.</p> <p>6. Same. An averment that a notehus been mislaid has never been held sufficient to entitle the plaintiff to recover without producing it.</p> <p>7. Writing Lost or Mislaid — definition. A mislaid note is one that cannot be found in its usual and proper place of deposit. A lost note is one which cannot be found after that thorough, careful, and vigilant search, which the law requires to be shown before secondary evidence of its contents can be introduced.</p>

This cause was beard in the court below at the May term, 1843, before the Hon. James Semple and a jury. Verdict and judgment were rendered for the defendant. The plaintiffs brought the cause to this court by writ of error.

The proceedings in this cause, in the court below, were had before tbe Hon. Dan Stone. . Judgment was rendered against the defendant, Stephen M. Jackson, by default, at the October term, 1839, for $2702.99, and the cause continued as to Wight; and at the May term, 1840, the plaintiffs took a nonsuit as to Wight.

This cause was stricken from the docket of the Adams circuit court, at the April term, 1839, the H011. Jambs H. RalstON presiding, upon motion of the defendant.

This was an action of trespass vi et armis, brought by Sarah, a woman of color, to test her right to freedom. The declaration is in the usual form, and contains two counts. The first charges the defendant with having beat and ill treated the plaintiff; and the second, in addition, contains a charge of false imprisonment.

The defendant was indicted at the April term, 1843, of the Randolph circuit court, the Hon. James Semple presiding, for harboring a colored servant, and sentenced to pay a fine of $20 and costs. He brought the cause to this court by writ of error. The facts are stated in the opinion of the court. The motion to quash the indictment should have been sustained. 8 Ohio 230.

The proceedings in this cause, in the Jo Daviess circuit court, were had before the Hon. Dan Stone at the May term, 1839. The proceedings in the Ogle circuit court were -had at the September term, 1841, before the Hon. Thomas Ford, when the cause was submitted to a jury, and a verdict and judgment rendered for the plaintiffs for $3459.04. The defendants brought the cause to this court by writ of error. cited Breese 128, 139; 1 Scam. 552; 2 Scam. 36, 319, 571; 3 3 Scam. 191.

The proceedings in this cause, at the October term, 1839, of the court below, were liad before the Hon. Dan Stone, and at the June term, 1841, before the Hon. Thomas C. BROWNE. cited Breese 128, 139; 1 Scam. 552; 2 Scam. 36, 319, 571; 3 Scam. 191.

This was an action of ejectment, brought by the plain-[*365] tiffs in error against the defendants in error, for the recovery o'f the possession of the following tract of land, to wit: The north east fractional quarter of section seven [7], the south east fractional quarter of section six [6], the south west fractional quarter of section five [5], the north west fractional quarter of section eight [8], in township two [2] north, range ¡eight [8] west, and claim 102 in…

This cause was originally commenced in'the Jo Daviess circuit court, and subsequently removed to Carroll county, by change of venue, where it was heard at the October term, 1841, before the Hon. Thomas C. Browne and a jury. Verdict and judgment were rendered for the plaintiffs for $1260. The defendants brought the cause to this court by writ of error.

' This cause was heard in the court below, at the November term, 1842, before the Hon. JOHN DeaN CatoN, witnout the intervention of a jury.

This cause was heard in the court below at the Oeto- [* 383] ber term, 1842, before the Hon. Samuel D. Looirwood and a jury. Verdict was rendered for the plaintiff for $356.50 damages, upon which judgment was rendered. The defendant appealed to this court. 1. The plaintiff in the circuit court had the right to fill up the endorsement on the note, before or after the institution of the suit. Gillham v. State Bank of Illinois, 2 Scam. 247 ; Evans v. Gee, 11 Peters 80. 2.

The decree in this cause was rendered at the February special term of the Morgan circuit court, 1843, by the Hon. SAMUEL D. Lockwood.

This cause was heard in the Greene circuit court, at the August term, 1842, before the Hon. Samuel D. Lockwood, who rendered judgment for the plaintiff, on demurrer to the defendants’ pleas, for f-500 debt, and 1138.75 damages, and costs of suit. The defendants appealed to this court.

The opinion of the court states the facts of this case. It was heard in the Madison circuit court, at the June term, 1843, before the Hon. James Semple and a jury. The jury found a verdict against the defendants, and assessed the damages at '$353.60.

The proceedings in this cause, in the Randolph circuit court, were had at the April term, 1843, before the Hon. James Semple. cited R. L. 396, 495, § 32 ; Gale’s St'at. 410, 535 ; Acts of 1839-40, 109. They contended that the decision in the case of Campbell v. Quinlin, 3 Scam. 288, was against the spirit of the statute, and had never been satisfactory to the bar.

Judgment was rendered in this cause in the court below, at the May term, 1839, the Hon. Dan Stone presiding, by default, for §463.98.

This was an application by the attorney general, for a writ of mandamus against the clerk of the supreme court, to compel him to issue an execution upon a judgment which had been rendered in favor of the auditor, more than a year and a day before the application was made for the execution ; and no execution had ever issued upon the judgment. The clerk submitted the question to the court for its direction, being doubtful of his duty in the premises.

This cause was heard in the court below, at the October term, 1843, before the Hon. Samuel D. Lockwood. Judgment was rendered for the appellees for $350 and costs, and the appellant brought the cause to this court. The appeal was dismissed, at an early day in the term, for want of prosecution.

<p>Application for Injunction.</p> <p>1. Injunction — supreme court will not grant.</p>

<p>This cause was decided in the court below, at the June term, 1843, by the Hon. Thomas C. Browne.</p> <p>cited Bishop v. Hey wood, 4 Term R. 470; 2 Barn. & Cres. 154; Porthouse v. Parker, 1 Camp. ; Davison v. Robertson, 3 Dow 229.</p>

This cause was heard in the court below, at the October term, 1841, and the August term, 1842, before the Hon. Samuel D. Lockwood. At the October term, a jury was called to assess the plaintiff’s damages, who rendered a verdict for $172.62. The plaintiff subsequently remitted $60, and judgment was rendered for the residue. The defendant appealed to this court. At a former term of this court, a decision was made in this case, affirming the judgment of the court below.

This cáusc was heard in the court below, at the March term, 1843, before the Hon. Thomas C. Browne and a jury.

<p>Error to Franklin.</p> <p>1. TrME — computation of. The proper mode of computing time, when an act is to be performed within a particular period from or after a specified day, is to exclude the day named, and include the day on which the act is to be done, (a) </p> <p>2. Same — same—on appeal. In computing the twenty days within which an appeal bond is to be filed in the clerk’s office by the justice of the peace taking the same, the day on which the bond is taken is to be excluded, and the day of filing the same included. But where the bond is not filed to dismiss the appeal, for that cause. the twenty days, it is error tor the court</p>

The proceedings in this cause in the court below were had at the November term, 1842, before the Hon. Samuel H. Treat. Judgment was rendered for the defendant upon demurrer to his plea, and the cause brought to this court by the plaintiff by writ of error.

This cause was heard in the court below, at the March term, 1842, before the Hou. Samuel H. Treat. 1. It was not necessary to make J. P. Spear, defendant's grantor, a party to the suit; or if necessary on demurrer, this decree ought not to be reversed because he is not a party. This case is not now presented as if on demurrer to the bill, nor is it governed by the same rules.

This cause was heard in the court below, at the September term, 1843, before the Hon. RtchaRD M. Young, [*429] without a jury. The court rendered a judgment against the defendant, who appealed to this court. This was an action of trespass, instituted in the Du Page circuit court, by the appellee against the appellant, for taking and selling a stock of goods, which the appellee claimed as assignee in bankruptcy of one Edmund B. Bill.

This cause was heard in the court below at the September term, 1843, before the Hon. James Shields and a jury. The jury found the issues for the plaintiff, and the defendant brought the cause to this court by writ of error. 1. The court below erred in refusing to dismiss the said suit for want of declaration, at the first term of the said circuit court. R. L. 486, § 1, 488, § 6, 492, § 22; Paine & Duer’s Pract. 461. 2.

<p>This cause was heard in the Madison circuit court, at the May term, 1843, before the Hon. James Semple.</p>

This cause was heard /in the court below at the June term, 1841, before the Hon. Thomas C. Browne and a jury. Verdict was rendered for the plaintiff for $452. A motion was made for a new trial', which was overruled, and judgment rendered on the verdict. The defendant brought the cause to this court by writ of error.

The defendant in error instituted a suit before a justice of the peace of Jo Daviess county, upon a promissory note of $100, against the plaintiff in error, who defended the suit, and the justice dismissed it. Silverburg appealed to the circuit court,’ where the cause was heard at the November term, 1841, before the Hon. Thomas C. Browne and a jury. Verdict was found. against Morrison for $108.50, upon which judgment was rendered.

This cause was heard in the court below at the May term, 1843, before the H011. Walter B. Scates and a jury. Verdict was rendered for the plaintiff for 1176.07. The defendant moved for a new trial. The plaintiff remitted 141.39, and the court denied the motion and rendered judgment for the residue. The defendant brought the cause to this court by writ of error.

The plaintiff in error was indicted at the March term, 1843, of the Morgan circuit court, the Hon. Samuel D. Loockwogd presiding, for secreting a woman of color owing service to a resident of… Held: that slaves attending their masters, sojourning in, or traveling through Ohio, are not thereby emancipated: In Lansford v. Coquillon', 14 Martin 401, the owner, with his slaves, domiciled in Ohio.

The judgment in this cause was,rendered by default in the court below, at the October term, 1843, the Hon. James Shields presiding, for $300, the penalty in the recognizance. The defendants brought the cause to this court by writ of error. cited R. L. 220-2, §§ 8, 5, 6; 8 Blackf. 108, 385; Breese 165, 257; 3 J. J. Marsh. 642. cited 1 Blackf. 339; 3 Blackf. 334; Breese 285; 17 Wend. 255.

This was an action of debt originally commenced in the Greene circuit court, and subsequently removed to the Sangamon circuit by change of venue, where the cause was heard, and a judgment pro forma rendered for the plaintiffs, at the November term, 1843, the Hon. Samuel H. Treat presiding, upon demurrer to the declaration.

The proceedings in this cause, in the Menard circuit court, were held before the Hon. Samuel H. Treat, at the June term, 1841. contended: 1.

The proceedings in this cause in the court below were had before the Hou. Samuel H. Treat; but at what term, the agreed case does not show. The jury found the defendant not guilty. A motion was made for a new trial, which was overruled, and a judgment rendered for the defendant for costs. The cause was brought to this court by writ of error, and submitted upon briefs.

The plaintiff in error was indicted, tried, and convicted in the Adams circuit court, at the April term, 1843. A motion was made in arrest of judgment, which was overruled, and the plaintiff in error sentenced to pay a fine of $400 and the costs of the prosecution. The cause was beard'before the Hon. StepheN A. Douglass. The law of congress, of 1793, is precisely analogous, in its provisions, to the state law. 1 Story’s U. S. Laws 285.

This cause was heard in the Cook circuit court, at the September term, 1843, before the Hon.. Richard M. Young-, without the intervention of a jury. Judgment was rendered for the plaintiff for $377.09 and costs of suit. 1. The tender of notes of the State Bank of Illinois was a good tender as to the amount due from Hamilton, according to the agreed state of facts in this cause.

[* 528] This was a petition for a mechanic’s lien, filed in the Jo Daviess circuit court by the defendant in error, against Wm, Campbell and John W. Campbell, on the 13th of October, 1841. The petition states -that the defendants in error, in October, 1839, were employed by Wm.

This cause was heard in the court below at the September term, 1842, before the Hon. Stephen A. Douglass, without a jury. Judgment was rendered for the defendant, and the cause brought to this court by the plaintiff by writ of error. First. The presumption of- law is that the proceedings, notice, [*537] etc., in this case, as they appear upon the Ohio record, were in conformity with the laws of Ohio. Story’s Conflict of Laws 505, note; Bequet v. McCarthy, 22 Eng. Com.

This cause was beard, in the Hamilton circuit court, at the April term, 1842, before the Hon. Walter B. Sc ates and a jury. Verdict was rendered for the defendant for $3.12-|-, and the court rendered a judgment upon this verdict. The plaintiff brought the cause to this court by writ of error. cited R. L. 391, § 10, 409, § 5 ; 2 Scam. 78; Graham on New Trials 188-9, 172, 500; 6 Pick. 417.

This cause was heard in the Tazewell circuit court at [*549] the September term, 1841, before the Hon. Samuel H. Treat, who rendered adjudgment for the plaintiff on demurrer to the defendant’s plea, for 1564 damages and costs.

The proceedings in the' cause in the court below were had at the No.vember term, 1842, before the Hon; Stephen A. Douglass. The facts sufficiently appear in the opinion of the court. , [* 551] The cause was argued at the last term, but no decision being made, a re-argument was ordered and had at this term. 1. If a person be forcibly attacked in his person or property, it is lawful for him to repel force by force. 3 Blac. Com. 3 ; Cro. Car. 138; Eyre v. Norsworbhy, 19*Eng.

Turs cause was heard in tbe court below at tbe May term, 1848, before the Hon. James Semple and a jury. Verdict and judgment was rendered for the plaintiff for $109.21. Tbe defendant brought the cause to this court by appeal. cited 2 Peters’ Cond. II. 496; 4 Blackf. 272; Boyer v. Sweet, 3 Scam. 120; 1 Stark.

O. Peters, for the plaintiff in error, moved for a super-[*559] sedeas. • J. Young Scammon, contra: The certificate to the transcript of the record does 'not state that it is complete. This is absolutely indispensable by Rule Y. 1 Scam. XÍI. Besides there is no error in the record.

moved to set aside the default and judgment of reversal rendered in this cause at a preceding term of the court, and filed an affidavit in support thereof, showing that said attorney, who was the attorney for the defendants in error, the plaintiffs in the court below, did not know that the cause was taken to the supreme court, until some months after it was reversed.

The decision in this cause, in the court below, was made at the October term, 1842, by the Hon. Stephen A. Douglass. Judgment was rendered for the defendant, and the plaintiffs brought the cause to this court by writ of error. The facts of the case are fully stated in the opinion of the court.

<p>Motion for Attachment.</p> <p>I. Fee-bill — liability for non-return. A sheriff is not excused from his liability to an attachment for not returning a fee-bill, because he could not collect the same of the defendant therein.</p>

<p>Error to Sangamon.</p> <p>1. Contract — good faith required. On the principles of equity and justice, a contract to be obligatory must be justly and fairly made. The contracting parties are bound to deal honestly, and act in good faith with each other. There should be a reciprocity of candor and fairness. Both should have equal knowledge concerning the subject matter of the contract. Especially ought all the facts and circumstances which are likely to influence their action to be made known. If they have not mutually this knowledge, nor the same means of obtaining it, it is then a duty incumbent on the one having the superior information, to disclose it to the other. In making the disclosure, he is bound to act in good faith, and with a strict regard to truth ; if he makes false representations respecting material facts, or intentionally conceals or suppresses them, he acts fraudulently, and renders himself responsible for the consequences whicii may result, (a) </p> <p>2. FRA.U'D — supfiressio veri. Fraud may consist as well in a sufpressio veri, as in a stiggestio falsi, for in either case it may operate to the injury of the innocent party.</p> <p>3. Same — false representation by vendor. A false representation by a vendor, which influences the conduct of the other party, and induces him to make the purchase, will vitiate and avoid the contract. A court of equity will not enforce and carry into effect contracts thus unfairly and fraudulently made; and when the injured party invokes its aid in proper lime, and the circumstances of the case [*570] will permit it to be done, the contract will be rescinded, and the parties restored to their original rights.</p> <p>4. Contract — rescission, or performance. Where a bill in chancery is filed for the rescission of a contract for the sale of a tract of land, the title to part of which the vendor did not possess, and the bill prays that the contract may be rescinded or specifically performed, the court has jurisdiction of the whole case, and can properly settle the rights of the parties, and render any further litigation unnecessary; and where the facts of the case do not justify a rescission of the contract, and the case does not show the specific value of the land to which the vendor had no title, it is proper for the court to consider the whole land sold of equal Value per acre, and render a decree for an abatement of the purchase money, and interest thereon, from the time the same became due, of such number of acres as the vendor failed to convey to the vendee.</p> <p>5. Same — fraud, vendee's election. Where a vendor represents himself to be the owner of a tract of land, of which, in fact, he only owns the greater part, whether he believed h mself to be the owner of it or not, and in consequence of such representation sells the property, he is guilty of a fraud upon the vendee, and if the latter resorts to a court of equity in proper time, and the vendor or his legal representatives are not in a situation to perfect the title, a rescission of the contract may be obtained. On the discovery of the fraud, the vendee is at liberty to consider the contract at an end, and to take the necessary steps to procure its rescission, or to confirm it, and rely upon his covenants of warranty to make good the failure of title. This election the vendee must make within a reasonable time.</p> <p>6. Same — same—laches. Where a vendee discovered a fraud in the sale of a tract of land to him in 1837, in the quantity of land sold, before he had made any improvements thereon, and while a' great portion of the purchase money was unpaid, and af-terwards erected a dwelling house, and made valuable improvements on the premises, and more than. four years afterwards, when sued for the balance of the purchase money, he made no complaint, and interposed no defence, but permitted judgment to go against him, and manifested no disposition for a rescission of the contract, until after he had paid a part of the purchase money, and purchased the title to a part of the land which his vendor pretended to sell to him, and made partition with the owner of the other portion to which the vendor had no title: Held, that the latter act alone would prevent the vendee from restoring the land to the vendor or his heirs, in the situation in which he found it, and that it was too late to ask for á rescission of the contract, after waiting five years without complaint, and that he was concluded by his own acts.</p>

This cause was heard in the Madison circuit court at the June term, 1843, before the Hon. James Semple and a jury. A party may prove that there was a mistake in drawing up a written instrument. 18 Johns. 81-2; 1 Binnev 616; 2 Stark. Ev. 555; 19 Johns.. 313; 4 Blackf. 374; 1 Phil. Ev. 532; 2 P. Wins. 140; 5 Eng. Com. Law E. 408; 8 Term R. 376 (6 p. g.); 1 Metcalfe 381; 7 Peters 345.

<p>moved, upon affidavit filed, for an extension of time in which to file the transcript of the record of the court below.</p>