Volume 50 — Illinois Reports

<p>1. Continuance—of motion to dissolve injunction. It is not error to refuse an application to continue a motion to dissolve an injunction, based upon an affidavit which simply states that the complainant expects to disprove the answer (which denies the allegations of the bill), by certain unnamed and unlocated witnesses. It should be shown what facts can be proven by the witnesses, and their names and residence.</p> <p>2. Jurisdiction in chancery—when there is a defense at lam. Where by the use of ordinary diligence and precaution, a defense could have been made available upon the trial of a suit at law, no relief will be granted in equity.</p> <p>3. A party cannot resort to chancery to deliver himself from a judgment which includes usurious interest, when he had an opportunity to defend 'against the recovery of the judgment.</p> <p>4. So, while it may not be said a court of chancery should never open a judgment on application of sureties to let in a defense of usury, yet where sureties, upon being sued, neglect to ascertain from their principal the character of the transaction, and do not attempt, in any way, to make a defense at law, a court of chancery will not interfere.</p> <p>5. Chancery—neglect of one’s attorney. The fact that a party against whom a default has been taken in a suit at law, applied to an attorney to make a motion to set aside the default, and the attorney failed to make the motion, is no ground tor relief in chancery.</p> <p>6. Suggestion op damages—on dissolution of injunction—when not necessary. Damages may be awarded upon the dissolution of an injunction granted to restrain the collection of a judgment at law, without the filing of suggestions in writing. In such case the practice is governed by the act of 1848 on that subject, and not by that of 1861* </p>

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

<p>1. Municipal coepoeations—power conferred upon—to regulate any calling or business—cannot be delegated to individuals. Where the power is conferred upon municipal corporations to regulate any calling or business, it is so done with the intention that such power shall be exercised by the corporations, and in the mode prescribed; and they are not warranted in delegating a discretionary authority to others, or -to an individual.</p> <p>2. Same—ordinance authorizing an officer of the corporation to exercise a power conferred upon the latter—declared void in a particular case. By the charter of the city of East St. Louis, the power was conferred upon the city council to regulate the selling of spirituous liquors, and by an ordinance of that body prohibiting the sale thereof, under a penalty, without a license, the city treasurer was authorized to grant licenses, and fix the amount to be paid therefor, and, with the concurrence of the mayor, to reject any application for the same. Held, that by such ordinance, the city council attempted to delegate their powers to an officer of the corporation, which action was unwarranted, and that a prosecution could not be maintained for any violation thereof.</p> <p>3. Same—power—alone to be exercised by the corporation. The manifest intention was, in conferring this power upon the city, that it should alone be exercised by the corporate body, under reasonable and proper ordinances, and any attempt to delegate such authority to others, would be unwarranted.</p> <p>4. And until the city council shall, by proper ordinance under their charter, either prohibit the sale of liquor, or regulate its sale, and fix a penalty for a violation thereof, no prosecution can be maintained by the city against a person for selling liquor without a license, as the charter itself fixes no penalty for such act.</p> <p>5. Same—power remains dormant—until, properly exercised. And this power, delegated to the city by its charter, remains dormant, until called into exercise in the mode prescribed by the charter.</p>

<p>1. Husband and wife—right of survivorship. Where husband and wife are jointly seized in fee of real estate, upon the death of one, the land passes to the survivor.</p> <p>2. But where husband and wife join in the conveyance of land owned by the former in his own right, the husband still holding the reversion in fee, upon the death of the husband and the subsequent extinguishment of the outstanding freehold estate created by the conveyance, the wife will not become entitled, as surviving grantor, to the lands in question, but they will revert to the heirs at law of the husband.</p> <p>3. Same—application of the rule. In this case the owner of certain lands executed a deed, his wife joining therein in the usual mode for the purpose of relinquishing her dower, whereby he conveyed the lands to his daughter, to have and to hold the same to her and the heirs of her body begotten, forever. Subsequently he died, and after his death the grantee, his daughter, died, unmarried, and leaving no issue. Held, that the estate which reverted upon the death of the grantee did not vest in the widow of the grantor by right of survivorship.</p> <p>4. Conveyance by husband and wife of the lands of the former—effect thereof as to the wife. Where the owner of land executes a conveyance thereof, his wife joining therein in the usual mode prescribed by the statute for the purpose of relinquishing her dower, the deed will operate, so far as the wife is concerned, merely to release her inchoate right of dower, and is not evidence of a joint seizin in fee in the husband and wife at the time of the conveyance.</p> <p>8. Same—where the wife joins in a covenant of warranty—whether she is bound— act of 1861. Although the wife who joins with her husband in a conveyance of his land, also joins in the covenants for title contained therein, she will not be bound by such covenants. Even if it were her own land, and her husband had united in a conveyance of it, containing covenants, she could not be held responsible upon them any further than that they should be held to convey from her and her heirs, her right and interest in the land. This immunity of the wife from liability upon such covenants is not destroyed by the act of 1861 securing to married women the enjoyment of their separate property.</p> <p>6. Dower—to what character of estate it will attach. A reversionary interest in land is not such an estate, though it be in fee, as will give the wife of the owner thereof a right of dower in the premises, unless, by the death of the intermediate freeholder, or a surrender of the outstanding estate to the husband, the inheritance becomes entire in him during coverture.</p> <p>Í. Estoppel. The fact of a married woman joining her husband in the execution of a conveyance of land of which the husband was the owner, will not estop his heirs from denying that the wife was jointly seized in fee with her husband, to defeat any claim she may set up to the property upon its reverting after the husband’s death. Even a declaration by the wife, in so many words, in the deed, that she was joint owner of the lands, would not bind the heirs, nor estop them from denying that such was the fact, as against her.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Edward Y. Rice, Judge, presiding.</p> <p>The City of Jacksonville instituted a prosecution before a justice of the peace in Morgan county, against Valentine Kettering, for an alleged violation of an ordinance of said city, prohibiting the sale of liquor and beer. The cause was removed into the Circuit Court of Morgan county by appeal, and subsequently to the Circuit Court of Sangamon county on change of venue.</p> <p>Upon the trial below, the prosecution, to prove the publication of the ordinance in question, gave in evidence the following certificate:</p> <p>“ Joseph Ironmonger on his oath says, that he is one of the publishers of the Daily Jacksonville Journal, a daily newspaper printed and published in the city of Jacksonville, county of Morgan, and State of Illinois, and that the foregoing and attached written paper commencing 1 printed and published by authority of the city council of the city of Jacksonville,’ and entitled ‘ An Ordinance relating to various Liquors,’ was published three days in said paper, in the entire issue thereof for said three days, which days were the 15th, and 17th, and the 18th days of June, A. D. 1867, in the city aforesaid, and by the order and authority of said city.</p> <p>« JOS.'J. IRONMONGER.</p> <p>“ Sworn to and subscribed before me this 3d day of October, 1867.</p> <p>“HENRY STRYKER, Jr.,</p> <p>“ Notary Public.”</p> <p>The, remaining facts in the case are set forth in the opinion of the court.</p> <p>The trial resulted in a verdict and judgment against the defendant, and he thereupon took this appeal.</p>

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

<p>' 1. New trial—verdict against the evidence. Where, in an action of assumpsit upon a promissory note, under a plea of the general issue, with notice of payment and tender, it is clearly evident the jury did not consider and understand the case, and that their verdict was against the weight of evidence, this court will not hesitate to reverse the judgment</p> <p>2. In actions ex contractu, where it appears from the record, the jury have mistaken the evidence, or found against a clear preponderance, this court will not hesitate to set aside the verdict. In actions ex delicto, the rule is more strict.</p>

John M. Scott, Judge, presiding. This was an action qui tam, commenced in the Macon county circuit court, and. taken by change of venue to the Circuit Court of De Witt county, to recover the statutory penalty in each case, for seventy alleged violations of the statute requiring a railroad company to ring the hell, or blow the whistle, at public crossings as therein provided.

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of ejectment, brought in the court below by Henry H. Horner, against Peter Wilding and Henry Zachary. A trial resulted in a judgment in favor of the plaintiff, from which the defendants took this appeal.

<p>Witness—competency. A prosecution for bastardy is a civil proceeding, and the putative father, who is the defendant in the prosecution, is a competent witness in his own behalf, under the Act of 1861, relating to disqualification by interest.</p>

Charles Turner, Judge, presiding. This was a bill in chancery, exhibited in the Circuit Court of Mason county, by Richard Litter, the complainant, to compel the defendant, Loveland, to accept a tender of $425, in full satisfaction of a certain note made and executed by him, October 10th, 1869, for the sum of $587.35, and also, to release a mortgage of the same date, given to secure the payment of the note.

<p>Writ oe Error to the Circuit Court of Logan county; the Hon. John M. Scott, Judge, presiding.</p>

<p>1. Admitting improper evidence—obviated by instructions. Although improper evidence may be admitted upon the trial, yet, if its effect is so far restrained by the instructions to the jury, that it could not affect the verdict, the judgment will not be reversed because of its admission.</p> <p>2. Evidence—admissibility. In an action against a city, for damages, resulting from, a defective sidewalk and street crossing, it is competent for the plaintiff to give in evidence an ordinance of the city, which shows that the city had taken under its cognizance and control these structures, as thereby the duty would devolve upon the city to keep them in repair.</p> <p>3. Municipal corporations—keeping sidewalks and street crossings in repair. Where it appears from a city ordinance, prescribing the duties of the street supervisor of the city, in regard to keeping sidewalks and street crossings in repair, that they had taken such structures under their cognizance and control— the neglect on the part of such official to exercise such power, so given him by the ordinance, will make the city liable for any damage resulting from such omission of duty.</p> <p>4. A person has a right to use the usual street crossings in a city, though it be a covering for a drain, if the inhabitants of the city and others used it for a crossing; and if he receives injuries by reason of its unsafe condition, which the street supervisor was authorized by city ordinance to obviate, but did not, the city must respond in damages.</p> <p>6. In an action against a city to recover damages for injuries alleged to have resulted from a defective sidewalk or street crossing, in the city, it was field, to be incompetent for the defendant to give evidence of the manner in which other cities and towns of similar size and character, in the immediate section of country, constructed their walks and crossings, for their neglect would neither be excuse nor justification for the particular neglect out of which the alleged cause of action arose.</p>

Writ op Error to the Circuit Court of Greene county; the Hon. Charles D. Hodges, Judge, presiding. This case was brought to this court by stipulation, and upon an agreed statement of the facts. It was a petition for partition, filed in the court below by the heirs at law of James Mulberry, who died testate.

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

Joseph Sibley, Judge, presiding. This was an action brought by heirs of Henry Auer, deceased, against Michael Heubrecht, the husband of the widow of Auer, by a subsequent marriage, to recover the sum of $200, loaned to Heubrecht by his wife, in her capacity of administratrix of the estate of Auer, deceased, upon his promise, verbally made to his wife as such administratrix, to return the money to the children of her deceased husband, Henry, Caroline and Louisa, upon the…

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

<p>Appeal from the Circuit Court of Fulton county; the Hon. Chaunoey L. Higbee, Judge, presiding.</p>

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

Writ of Error to the Circuit Court of Coles county ; the Hon. James Steele, Judge, presiding. This was an action of assumpsit, brought by the defendants in error, against the plaintiff in error, in the Circuit Court of Coles county, to recover for advances made by them as commission merchants in the city of Chicago, together with interest thereon at the rate of ten per cent, per annum, and their reasonable commissions.

Edward T. Eice, Judge, presiding. This was a prosecution, commenced by the City of Jacksonville, against John Graubner, for an alleged violation of a city ordinance prohibiting the sale of liquor within the corporate limits. The proceeding was instituted before a justice of the peace of the city of Jacksonville, appealed to the Circuit Court of Morgan county, and a change of venue taken to the Circuit Court of Sangamon county.

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

Clair county; the Hon. Joseph Gillespie, Judge, presiding. An order was made by the city council of East St. Louis, under the 22d section of the 8th article of the city charter, to macadamize Third street in said city, and that a special assessment be made upon the lots on said street deemed benefited by the improvement, for the entire expense of the same. The appellant filed her objections to the assessment upon certain lots so claimed to be benefited.

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

<p>1. Mandamus—of the jurisdiction—where there is another adequate remedy. The rule is firmly established, that where there is another adequate remedy. available to the party, by which he can obtain relief, a court will not award the writ of mandamus. It is only in cases where a party has a right and no other remedy has been provided, that mandamus lies.</p> <p>2. So, where the votes cast at an election for sheriff have been duly canvassed, and a certificate of election issued to the person declared elected, a writ of mandamus will not be awarded to compel che county clerk to issue a certificate of election to another person who claims to have been elected instead of the one to whom the certificate has been issued; as in such case, the party asking the writ of mandamus has an adequate remedy under the statute providing the mode for contesting the election.</p>

John M. Scott, Judge, presiding. This was a bill in chancery, in the McLean Circuit Court, filed by Absalom Stubblefield, against Linus Graves, Samuel B. Evans and others, claiming, among other things, a prior lien upon a certain tract of land containing 23-gj, acres.

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

<p>1. Insurance—of an over valuation. Where a policy of insurance is silent in regard to 'an./Over valuation of the property insured, the statement of the value of the property in the_applicalion for insurance, is not one which the assured warrants to be true; and where the agent knows, or can judge of the value of the property himself, and accepts an application without objection to the statement therein of the value, eveii-'if'such valuation is higher than it should be, it will not vitiate the policy.</p> <p>2.. But an over estimate of the value of the property by the owner in his application, is a circumstance which may be considered, in connection with others, to show that the owner destroyed the property for the purpose of defrauding tHe company, where that is relied upon as a defense.</p> <p>3. Same—of notice of application—what deemed sufficient notice. Where it is one of the conditions of a policy that the application must be sent to the Secretary at Chicago, before any risk can be assumed,—an indorsement upon the application, “ Authorized, Nov. 6th, 1866, at 4 per cent.,” is proof of such notice. And a subsequent recognition of the validity of the policy, by receiving the premiums, and sending an agent to investigate the loss, is an estoppel to an objection raised on that ground.</p> <p>4. Same—of failure to endorse consent on policy to effect other insurance—incumbrances. Where several policies of insurance were effected with one person, acting as the agent of the several companies, the object and purpose of endorsing consent on the policy was fully secured. And an endorsement upon the policies, that the loss, if any, would be paid to persons holding the incumbrances, was notice of such incumbrances, and the companies cannot avail themselves of the negligence, if any, of their agents, as against the bona fide assured.</p> <p>6. Same—increased hazard from repairs—effect of. An increase of hazard only suspends the policy while it continues; the liability is restored when the increased hazard terminates.</p> <p>6. Policy oe Insurance—of the lime of commencing suit. Where the policy provides that the company shall have sixty days after notice and proof of loss, within which to pay the loss, suit brought after the prescribed time, with notice and proof of loss incurred, is not premature; and any failure to make timely objections to the sufficiency of such proof would be regarded as a waiver of such objection, if any existed.</p> <p>7. Same—of a substantial compliance with its conditions. Where the requirements of the policy of insurance, upon a mill do not permit smoking in or upon the premises, or the carrying lights open and exposed, under a penalty of a forfeiture of the policy, it was held, that under such conditions the insured undertook only that these violations should not occur with his consent, and that he would use the reasonable diligence of a prudent man to prevent them.</p> <p>8. Averment and proof—variance—Where the declaration avers the contract to have been made with the Insurance Company of North America, and the proof shows it to have been made with the President and Directors of the company, it was held, that the averment stated the obligation under the contract according to its legal effect.</p>

<p>Writ of Error to the Circuit Court of Jersey county; the Hon. Chas. D. Hodges, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Jersey county; the Hon. Charles D. Hodges, Judge, presiding.</p>

Edwabd Y. Rice, Judge, presiding. This was an action of ejectment commenced in the Circuit Court of Madison county, and the cause was taken hy change of venue to the Circuit Court of Montgomery county, where a trial was had before the court, a jury having been waived.

<p>1. Contracts—necessity of signing the same. Although the name of a party may be mentioned in the. body of a written contract, as being one of the contracting parties, yet if he does not sign the instrument he will noc be bound thereby.</p> <p>2. Jurisdiction in chancery—where there is a remedy at law. Where a party to a contract has a remedy at law thereon, the mere fact that the other party, who has possession of the instrument, refuses to permit him to see it, or to have a copy thereof, will not authorize the former to resort to a court of chancery for the mere purpose of recovering upon the contract, there being no prayer for discovery as to the contents of the instrument.</p> <p>3. Should the party seeking to recover upon a contract, which is so out of his possession and control, seek by his bill a discovery of the contents of the instrument, a different question as to jurisdiction in equity would arise.</p> <p>4. Assumpsit—common counts. Where a contract has been performed, and nothing remains to be done under it but to pay the money due by its terms, the party to whom it is owing may sue in assumpsit, and recover under the appropriate common counts, and is not required to declare specially on the written instrument.</p>

James Steele, Judge, presiding. This was a bill in chancery, exhibited at the October term, 1865, of the Coles County Circuit Court, by Martha Jeffries, against Peyton, Nesbit, Skidmore, Allen and Vanmeter, for the assignment of her dower as the widow of John P. Jeffries, deceased, in part of lot 53, block 5, city of Charleston, upon which lot of ground was erected, prior to the death of Jeffries, which occurred the 2d of November, 1859, a three-story brick building, the…

A. J. Gallagher, Judge, presiding. ' This was an action of trespass on the case brought by Beals against the railroad company, to recover damages for personal injuries, resulting to him as a passenger. The trial resulted in a verdict and judgment for the plaintiff. The cause was brought to this court on appeal.

Charles Turner, Judge, presiding. This was an action on the case brought by Terhune against the St. Louis, Jacksonville & Chicago Eailroad Company, to recover for damages resulting from an alleged violation of the statute, imposing upon railroad companies the duty to ring the bell or sound the whistle upon the engine at the crossing of public highways, as therein provided.

This was a Petition for Mandamus, upon which the alternative writ of mandamus was awarded according to the prayer of the petition. The facts alleged as the grounds for the writ, on the part of the relators, and the facts relied on as a defense, on the part of the respondents, as set forth in their return to the alternative- writ, are fully presented in the opinion.

Writ of Error to the Circuit Court of Greene county; the Hon. Charles D. Hodges, Judge, presiding. This was a suit commenced before a justice of the peace, by Linder, to recover the value of some rails which he alleges were taken by Ashlock; the cause was removed into the circuit court by appeal. On the trial, Linder testified that he was the owner of the land on which the rails were cut.

Silas L. Bryan, J udge, presiding. This suit was commenced in the Circuit Court of Fayette county, and removed by change of venue into the Circuit Court of Marion county.

<p>1. Iífl tiel record—when not pleadable. The plea of nut tiel record is not a proper plea to an action of debt upon an appeal bond.</p> <p>2. Action upon appeal bond—of a defense thereto. In an action of debt upon an appeal bond given upon an appeal to the supreme court, the parties executing the bond are estopped from disputing the facts recited therein.</p> <p>3. So the defendants in such action cannot plead that the judgment appealed from, was rendered against other persons than those recited in the bond as being the parties to such judgment.</p>

Writ of Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of trover, commenced before a justice of the peace of St. Clair county, by Kreuchi, against Dehler, to recover for certain personal property of the plaintiff, alleged to have been taken by the defendant as a constable, under an execution against another person.

<p>1. Abandonment of contract—waiver of right ip enforce it. Where a party to a contract manifests an intention to abandon it, by suing for and recovering money which he has paid thereon, he cannot be permitted afterwards to treat the contract as in force, and insist upon its performance by the other party.</p> <p>2. So, where A and B, each claiming the better right to a tract of land, entered into an agreement that he who should be found to have the better title should convey to the other one half of the land, and receive therefor a stipulated sum of money, A agreeing to pay to B a certain sum for improvements made by B upon the portion which was to be allotted to A: Self that this was one entire agreement, and the recovery by B against the estate of A, who had died before the agreement was performed, the sum so agreed to be paid for the improvements, will be treated as an abandonment of the contract by B, and preclude him from after-wards insisting upon a conveyance of one half of the land by the representatives of A, who had perfected their title thereto.</p>

<p>1. Pleading—of tile declaration—in an action against a railroad company for injury to stock. A declaration in an action against a railroad company, contained but one count, and that was for killing and crippling a mare and a mule, but it was not averred which animal was killed and which crippled. This defect, however, was regarded as cured by a subsequent averment, that by the act of the defendants in running their train upon them, they were lost to the owner.</p> <p>2. Railroads—liability for injury to a mule. Under the act of 1855, which requires railroad companies to make and maintain fences “ sufficient to prevent cattle, horses,” &c., from getting on the road, a railroad company would be liable for injury to a mule, occasioned by a non-compliance with the statute, as mules are embraced in the terms “ cattle and horses,” as used in this statute.</p>

<p>1. Alien enemy—of the condition of persons during the late rebellion. A person residing in one of the States engaged in the late rebellion at the breaking out of the war, soon after left his home, remaining absent until the termination of hostilities; meanwhile his family continued to reside at their home in the rebellious State, while his place of abode was, for a portion of the time in the loyal States and the residue in neutral countries, but intending all the while to return to his former home at the close of the war. He was always faithful to the union and opposed to secession: H“ld, that he would not be regarded as an alien enemy ; that he lost none of his rights as a citizen of the United States by reason of his temporary and constrained residence in the rebellious district after the war commenced, and was at liberty at any time to sue in the courts of this State.</p> <p>2. In such a case, if the party had sought, during the war, to recover a debt in one of our courts, the inquiry would be, not whether the plaintiff had a legal citizenship in a rebel State at the opening of the war, which he might and intended to resume at its close, but where his actual residence was daring the war, and whether, if allowed to recover his dues, the probable effect of a recovery would be to place the amount recovered within the reach of the enemy.</p> <p>3. Limitations—operation of the statute in relation to such person. A person thus situated, being under no disability to bring suit in our courts during the war, the statute of limitations did not cease to run against him during that time.</p>

<p>1. Bail—in criminal cases—hoto to be taken. The statute has not authorized a sheriff to receive money or property for his indemnity, to the amount of the bail and in lieu of it, and discharge a prisoner. A recognizance with good and sufficient sureties, must be signed by the accused at the time of his discharge.</p> <p>2. Illegal discharge—money deposited for, cannot be recovered back—depositor party to a misdemeanor. It is a flagrant violation of duty for a sheriff or jailor, to discharge a prisoner except by legal requirement. The acceptance of money to procure the discharge of a prisoner is illegal—is in violation of sec. 101 of the Criminal Code—and the depositor is parliceps criminis, having contributed to a wrongful discharge, and thus assisted in obstructing justice, and has no right to recover back the money.</p> <p>3. Statute—23 Henry VI, chap. 9—explained. That statute applies only to civil cases. Under that act, the discharge of a prisoner without authority of law, was not a misdemeanor—it simply made the sheriff liable for the debt for which the prisoner was arrested.</p> <p>4. Semble, notwithstanding a sheriff acted without authority, in receiving money in lieu of bail, it should be paid into the county treasury precisely as if collected on a recognizance, and be applied in the manner required as to such moneys.</p>

Whit of Error to the Circuit Court of Mason county ; the Hon. Charles Turner, Judge, presiding. This was a prosecution for bastardy under the statute, and the only question presented by the record, is, as to the form of the verdict.

John M. Scott, Judge, presiding. This was an action brought originally before a justice of the peace, by appellee, to recover the value of a certain package, said to contain $46, consigned at Heyworth, Illinois, to appellant, to carry and deliver to appellee at Clinton, Michigan. On arriving at its destination, the package, it is asserted by appellee, contained only $36.

<p>1. Redemption by a judgment creditor—and subsequent quitclaim, deed by the debtor to a third person. A judgment debtor, whose land had been sold under the judgment, being unable to redeem within the twelve months, confessed a judgment in favor of a third person, with the understanding that he should redeem the premises as a judgment creditor, and give the debtor further time to redeem. The judgment creditor redeemed, the premises were sold under his levy, and he became the purchaser. Subsequently, and without having redeemed, the debtor quitclaimed to another, and after he had done so, the judgment creditor, who redeemed and purchased the land, obtained a sheriff’s deed: Held, in an action of ejectment by the grantee under the quitclaim deed against him who held the sheriff’s deed, that the latter held the better title; the quitclaim deed passed no greater right than the grantor then had.</p> <p>2. Ejectment—wleerc plaintiff only holds an equity. Even if the judgment debtor, in such case, still had a right of redemption at the time he made the quitclaim deed, and passed the right to his grantee, it was a mere equity which would not authorize the holder of it to recover in ejectment.</p> <p>3. Tenant denying landlord’s title. And even if the defendant in such action of ejectment, originally entered upon the premises as the tenant of the judgment debtor, that fact would not preclude him from asserting his title derived under the judgment against his landlord, against the grantee of the landlord under the quitclaim deed.</p> <p>4. When the landlord conveys his title to his tenant, the latter is not bound to restore possession to his landlord, and then resort to an action to regain possession. By receiving the deed, the relation of landlord and tenant ceases, and the latter then holds as grantee.</p> <p>5. So when a landlord conveys to a stranger, the tenant is not bound to restore possession to his landlord, but may attorn to the grantee, and in so doing, he fully recognizes the landlord’s title; and if afterwards sued by his former landlord for possession, he may set up the deed of such landlord, to defeat a recovery.</p> <p>6. And it does not matter, whether the landlord makes a voluntary conveyance, or, as in this case, the premises were sold under execution against the landlord, so the title of the landlord is divested.</p>

<p>Evidence—of the degree of preponderance required. In an action on the case, herein i* is sought to recover damages for the killing of a mule belonging to tiie plaintiff, it is not necessary that there shall be a “ clear preponderance” of evidence in favor of the plaintiff to entitle him to recover. It is sufficient if the evidence creates probabilities in his favor—that the weight of the evidence inclines to his side.</p>

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

<p>Appeal from the Alton Oity Court; the Hon. Henry S. Baker, Judge, presiding.</p>

<p>1 Mandamus—when awarded. Where the ordinary proceedings at law afford a remedy, the writ of mandamus is never awarded.</p> <p>2. The holder of a county order, drawn upon the general revenue fund of the county, may have a judgment against the county in the ordinary mode of legal proceeding, but he cannot have his remedy by mandamus, to compel the board of supervisors to levy a tax for its payment.</p>

This was an application for a peremptory writ of mandamus, upon the same state of facts upon which the alternative writ was sought to be sustained in the preceding case.

<p>Writ of Error to the Circuit Court of Mason county; the Hon. Charles Turner, Judge, presiding.</p>

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

<p>1. Consideration—what constitutes. It is no doubt true, that a promise made to settle a doubtful right, or to get rid of a probable liability, is binding, and made upon a good and valuable consideration, and it is no defense for the promissor to say he was mistaken in regard to his liability.</p> <p>2. But where a person’s building takes fire by accident, and the fire extends ■ to the building of another, and it is destroyed, there is no legal or moral obligation on the part of the former to make good the loss of the latter, and a note given by the owner on whose premises the fire originated, to the other party, on the false representation of the latter that he could prove the maker was the cause of the fire, and thereby induced him to believe he was in some way liable, is without consideration, and a suit thereon by the payee may be defeated on that ground.</p>

Charles Turner, Judge, presiding. This was a bill in chancery, by the appellant, against appellees, brought in the Mason County Circuit Court, at its October term, 1867, to set aside a judgment at law obtained in the same court, March, 1867.

John A. Jameson, Judge presiding. This was a bill in chancery, exhibited in the Kane County Circuit Court. The cause was removed by a change of venue to the Superior Court of Chicago. The bill was filed February 5,186í, and upon the hearing a decree for the complainants was entered. The defendants below bring the cause to this court. The further facts in this case are fully stated in the opinion.

<p>Appeal from the Circuit Court of Ford county; the Hon. A. J. Gallaghee, Judge, presiding.</p>

A. J. Gallagheb, Judge,, presiding. The facts in this case are to be found in the preceding opinion, the difference in the two cases being, that in this case the -jury had before them the precise nature of the damage as the ba_sis of computation, namely, the difference between the rental value of the premises in question, before the existence of the nuisance complained of, and during the time it was con- . tinned.

<p>1. Specific performance—dday inpayment—and want of good faith. Although in contracts for the sale of land, where time is not expressly made an essential stipulation, the mere failure by the purchaser to tender payment within the timo agreed upon is not a reason for denying specific performance, if such delay receives a satisfactory explanation and one consistent with the good faith of the purchaser, yet he has never been permitted first wilfully to repudiate the obligations of his own contract, and then turn round and ask a court of chancery specifically to enforce it.</p> <p>2. So, in this case, a party holding a contract for the purchase of land, sold the premises to another by a verbal agreement, the understanding being that it was a cash transaction. The second purchaser, in order to make the cash payment, borrowed the money of a third person at ten per cent, interest; in order to secure the lender of this money it was paid to the vendor of the second purchaser, who gave his note to the lender therefor, bearing interest at ten per cent., as agreed upon. The purchaser went into possession and made some improvements. This sale to the second purchaser took place in the spring of 1863 ; his vendor obtained a deed under his contract of purchase in December, 1864, having paid a year’s interest at ten per cent, on the note he had given for the money borrowed by his vendee. The deed obtained bv the intermediate vendor ran directly to the second purchaser, and was at once tendered to him and payment demanded, but he denied having agreed to pay any interest on the money he had borrowed, which had been paid by his vendor, and refused to do so. A few days afterwards, the purchaser offered to pay the money with six per cent, interest, which was declined ; and in the summer of 1865 he offered to pay the interest at the rate he had originally agreed upon, but this was also refused. On,bill subsequently filed by the purchaser for a specific performance, it was held that his bad faith in repudiating liis obligation to pay the ten per cent, interest, deprived him of any right to the relief sought.</p>

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

Henry S. Baker, Judge, presiding. This was an action on the case brought in the court below, by John Henry, against the Keolmlc Packet Company, to recover damages for an injury to the plaintiff, resulting, as is alleged, from the negligence of the officers of one of the boats of the company, in not affording the plaintiff proper time and facilities for leaving said boat.

<p>1. Fraud—misrepresentation as to title. If a persons sells a tract of land, claiming to be the owner, and knowing that he is not, he is guilty of a fraud, for which the vendee may rescind the contract.</p> <p>2. But if he professes to sell, not the paramount title, but only a claim derived from a particular source, such as a sale of the land for taxes, and he has a claim thus derived, he is not guilty of a fraud for which the vendee can rescind, merely because he expresses an opinion as to the legal value or strength of his claim, which the facts do not justify, so long as he makes no false statement as to what those facts are.</p> <p>3. Interest—at what rate recoverable—under act of 1849. Upon a note given while the interest law of 1849 was in force, reserving interest at ten per cent., where the consideration was not borrowed money, only six per cent, can be recovered.</p> <p>4. Same—effect of act of 1857. The act of 1857 repealed all penalties for reserving a greater rate of interest than the law allowed, but the creditor cannot, as a mere effect of that repeal, recover a higher rate of interest than he could lawfully, have contracted for.</p> <p>5. Usury—how availed of. It has been held, that since the act of 1857, usury need not be pleaded if the fact of usury appears by the declaration.</p> <p>6. So, in a suit to foreclose a mortgage, where the bill on its face discloses the fact that a higher rate of interest has been reserved in the contract than the law allowed, and the master computes the interest on that basis, the question of usury may be presented by exceptions to the master’s report, without having been raised by answer or plea.</p>

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

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

<p>Estrays—adv&'tisemmt of—duty of taker-up of The title to an estray does not vest in the taker-up, unless he has complied with all the material requirements of the statute, among which the posting and advertising are especially important. A mistake in the name of the taker-up is a fatal defect in the advertisement of estrays, where the notice fails to so describe the locality as will enable the owner to find his property. He should see to it that publication is properly made, if he would acquire title to the estray.</p>

<p>1. Bill in chancery—-for partition—of the proper allegation as to title. Where a bill in chancery, filed for a partition of lands, in setting out the title of the parties, alleges that their ancestor died, seized of the premises sought to be divided, and that he died intestate, and that they are his heirs at law, although the bill might be obnoxious to a demurrer for want of more specific allegation of title, it would be sufficient to support a decree for partition.</p> <p>2. Bill op interpleader—in a suit for partition. Where a bill is filed for a partition of lands among several joint owners, a judgment creditor of one of the parties having a lien upon the premises to the extent of the share of his debtor, has such an interest in the land as will authorize him to file a bill of interpleader, under the seventh section of the partition act, for the purpose of subjecting such share to the satisfaction of his debt.</p> <p>3. A person interpleading in such a case, should also answer the original bill, and if he fails to do so, on motion made in the court below, he will be compelled to answer, or his bill of interpleader will be stricken from the files.</p> <p>4. But if the objection be not taken in the court below, an omission to file an answer will not be ground for reversal, especially when it can be seen an answer could not have been of any service to any party to the suit, and of no importance to the rights of the party interpleading.</p> <p>5. Where the jurat appended to a bill of interpleader of such character, states that the complainant deposed that it was true in substance and in fact, that is sufficient, although in the jurat the bill was called a plea; the jurat being attached to the bill, will be understood as-referring to that and nothing else.</p> <p>6. Partition—order of sale—of the oath of the commissioners appointed to make partition. In a suit in chancery for partition, the oath of the commissioners appointed to divide the lands, was objected to as insufficient to authorize an order of sale based upon the report of such commissioners, because in the title of the cause, as written over the oath, the Christian names of two of the parties were given to the wrong persons, and the two parties were transposed as to their position as complainant and defendant; but there being enough to show the oath was in that proceeding it was held sufficient.</p> <p>Í. Notice of the filing of a bill of interpleader—whether necessary. Where a party files a bill of interpleader in a suit for partition, he is not required to give notice thereof to the complainants in the suit. When a plaintiff is prosecuting a suit in court, he must be presumed to have notice of every step taken or paper filed in the cause.</p> <p>8. So, the omission to give such notice is no ground for granting a party leave to answer the bill of interpleader after he has permitted a default to be entered in respect to it, and a final decree rendered.</p> <p>9. Of granting leave to answer—after final decree. Where a party to a suit in chancery, against whom a default has been taken and final decree entered, asks to have the decree opened and for leave to file an answer, he should present his answer on making his motion, in order that the court may see whether it presents a defense. Unless the answer is so presented the motion for leave to answer should be denied.</p> <p>10. Entering decrees of record—duty of the clerk. It is not the duty of the clerk of a court to draw decrees in chancery, but only to record them when drawn by counsel and approved by the chancellor, and such is the proper practice.</p>

‘Appeal from the Circuit Court of Sangamon county; the Hon. Edwabd Y. Bice, Judge, presiding. This was an action of assumpsit, brought in the court below, by Smith, against Gillett, for failing to deliver a lot of cattle ivhich the plaintiff claimed to have purchased from the defendant, at a certain price per hundred pounds.

<p>1. Notice by possession—its extent and effect. Where a person is in possession of premises, upon which he holds a mortgage which is not recorded, the constructive notice of his rights under the mortgage which is afforded by his possession, in lieu of a record, only goes to the extent of putting persons upon inquiry, and requiring a subsequent purchaser to apply for information to the person in possession.</p> <p>2. But if such information is honestly and properly asked on the one side, and willfully refused on the other, he who has done all in his power to acquire it, may deal with the land on the presumption that the title is in fact as disclosed by the record, and the party in possession will be estopped from setting up his mortgage to the injury of him to whom he refused the information.</p>

Writ of Error to the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding. This cause was before this court at the January term, 1866, when pleas of a release of errors were filed, and the issues formed thereon were sent to the court below to be there tried before a jury, with directions that their finding and the evidence in respect thereto, should be certified to this court. The proceedings relating to those pleas are reported in 40 111. 82.

<p>1. Contract of sale—as to the time of delivery. A contract of sale of a large number of cattle, which were being herded in different lots a considerable distance apart, provided that they should be delivered from one day named, to another, as, from the 1st to the 10th of the month, at the option of the purchaser: Held, that before the vendor could be put in default for not delivering the cattle, the purchaser should make his election of time for the delivery, and give the vendor reasonable notice thereof, so as to enable him to perform his part of the agreement.</p> <p>2. Or should the time for delivery be extended, by agreement of parties, so that the last day for the buyer’s option should be postponed, the like duty of giving notice would devolve upon the buyer.</p> <p>3. And where, at the instance of the buyer, the vendor consents that he may take a less number than was originally sold, the former expressly agreeing to give notice when he would receive the residue, such notice must be given before the vendor can be put in default for non-delivery.</p> <p>4. In this case the cattle sold were owned by several persons, two of whom were in charge of the different lots at different places; the buyer obtained the consent of one of the vendors, as the time for delivery was approaching, that he should take a small number then, agreeing to notify the vendor when he would be ready to take the residue. The buyer then went to another of the vendors who was in charge of one of the lots of the cattle, from which the buyer was to take the smaller number he then was to have, and concealing from him the fact of the change in the agreement, induced him to drive that lot to one of the several points named in the original agreement, at which the whole number sold were to have been delivered, and when there, the buyer refused to take them, alleging, in general terms, that they did not fill the contract: Held, that the buyer could not put the vendors in default in that mode ; he should have given the notice he agreed to give, so as to have enabled the vendors to make the delivery, if it was his desire to have all the cattle at that time and place.</p> <p>6. Same—of objections to the quality of the property to be delivered. It was not enough for the buyer in such case, to object, in general terms, that the lot of cattle so offered him did not fill the contract. If he designed receiving the lots in different places at different times, he should have stated his objections specifically, so that they might have been obviated by supplying the place of those which were not of the requisite quality, from the other lot of cattle.</p> <p>6. Same—readiness on the part of the purchaser, to pay. In an action by a purchaser against his vendor to recover back a part of the purchase price which he had paid in advance, alleging as his ground for recovery that the vendor had failed to deliver, or offer to deliver, property of the quality purchased, it appeared that at the time he objected he did not have the money to pay, as was required by the agreement, and that fact of a want of readiness to pay was held fatal to his right of recovery.</p>

Joseph Sibley, Judge, presiding. This was an action of assumpsit, brought in the court below by Porter against Curry and Majors, as partners, for the balance of the price of a mare, claimed to have been sold by the plaintiff to the defendants. Curry alone was served with process, and he pleaded non assumpsit. A trial resulted in a verdict and judgment for the defendant. The plaintiff thereupon appealed.

John M. Scott, Judge, presiding. This was an action of assumpsit, commenced in the Circuit Court of Macon county, by Franklin Priest, for the use of James Millikin, against The First National Bank of Decatur, to recover a sum of money alleged to have been received by the Bank for the use of the plaintiff.

Edward T. Rice, Judge, presiding. This was an action on the case, by Hunter and McHeil, against the Toledo, Wabash & Western Railway Company, to recover damages arising from injury to a lot of cattle, caused by the waters of the Sangamon river overflowing the ground, occupied by the plaintiffs, in a time of flood, such overflowing being the result, as is alleged, of the filling up by the railroad company, of an open trestle work in an embankment of their road across the…

<p>1. Evidence—proceedings and decree in another suit. The record of proceedings in a suit in chancery is not even prima fade evidence in favor of one of the parties thereto against another, in a proceeding at law, where, as between those parties, in the chancery suit, in which they were co-defendants, there was nothing litigated.</p> <p>2. Same—of a judgment in the same proceeding. A creditor instituted proceedings by attachment against three; judgment in personam was obtained against one, and a judgment in ran against the others. On scire facias to make the latter parties to the personal judgment, to which a plea of non-assumpsit was interposed, going back to the original cause of action, it was held, that neither the judgment in personam against the other party, nor the judgment in rem against the defendants in the scire facias, was evidence against the latter in that proceeding, as to the amount due.</p>

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

Joseph Sibley, Judge, presiding. This was an action on the case, brought in the court below, by William B. Hayte, against Frederick Collins, Allen Comstock, Enoch Comstock, Timothy H. Castle and Charles H. Winn, for an alleged malicious prosecution, arrest and imprisonment.

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

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

<p>Legal title—when it must yield to an equity. Where a person holds a promissory note as assignee thereof, before a court can properly divest him of his legal title, at the instance of one claiming a superior equity in the note, the proof should be very satisfactory that the latter has such superior equity.</p>

Writ on Error to the Circuit Court of Edgar county; the Hon. Jambs Steblb, Judge, presiding. This was an action of assumpsit, brought by McClure against Wilson, for money paid, laid out and expended, and lent and advanced by the plaintiff at the request of the defendant. The cause was before this court at the January term 1867, when the judgment which had been rendered for the defendant was reversed and the cause remanded.

<p>1, Conflict of laws—by what law a contract will be governed. As a general rule, the validity of a contract is to be governed by the law of the place where it is made, so that contracts made in other States will be enforced in this State, although not conforming to our laws, if they are in accordance with the laws of the State where they were executed, and do not contravene the positive laws, institutions or policy, which prohibit such contracts in this State.</p> <p>2. It is not opposed to the policy of this State to enforce contracts made in another State, where they are not based upon an immoral or criminal consideration.</p> <p>3. So, where personal property was mortgaged in the State of Missouri, and permitted to remain with the mortgagor after the maturity of the debt to secure which the mortgage was given, and upon being subsequently brought into this State was seized under an attachment in favor of a bona fide creditor of the mortgagor, the rights of the mortgagee as against such creditor will be determined by the law of Missouri; and as by the law of Missouri the possession of the property by the mortgagor after the maturity of the debt is not per se fraudulent as to the creditor, but may be shown to be bona fide , that rule will govern the rights of the mortgagee on his claiming the property, notwithstanding, under our law, such possession in the mortgagor would be fraudulent per se as to creditors.</p>

John M. Scott, Judge, presiding. This case was before this court at the January term, 1866, and will be found reported in 39 111. 364, where a full statement of the case is presented.

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

<p>Appeal from the Circuit Court of Mason county; the Hon. Chaeles Tubeee, Judge, presiding.</p>

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

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

<p>Appeal from the Circuit Court of Richland county; the Hon. E. S. Canby, Judge, presiding.</p>

Writ of Error to the Circuit Court of Wabash county; the Hon. S. S. Marshall, Judge, presiding. This was a suit in chancery, instituted in the court below, for a partition of certain lands among the heirs at law of James Thompson, deceased.

<p>1. Resignation of an office—and acceptance thereof. A county superintendent of schools addressed and presented to the county court of his county, a paper as follows: “ The undersigned hereby tenders his resignation as county superintendent of schools.” This paper was received by the court, and handed to their clerk to be placed on the files of the court, and was by him so filed. This was a virtual acceptance of the resignation, which was not subject to be revoked by the party presenting it. It was not necessary to enter an order upon the records accepting the resignation in form.</p> <p>2. County Court—of the number to constitute a quorum. The county judge and one associate justice constituted a quorum for the purpose of accepting the resignation.</p>

<p>1. Action of debt—whether it will lie. A contract for the sale of land, recited that the vendor had sold certain described lands to the purchaser, at a stipulated price, a portion of which was paid cash in hand, and the balance secured by the promissory notes of the purchaser, upon the full payment of which the vendor agreed to convey by deed with warranty. The purchaser, without having paid the notes, brought an action of debt to recover back the money he had paid, declaring specially on the contract, alleging the vendor could not convey by reason of the premises having been sold under incumbrances created by him: Held, that covenant, not debt, was the remedy. Debt will lie only for a sum certain or a sum that may be rendered certain by computation. In this case, the action was for the breach of the terms of the agreement, and not for a sum of money eo nomine and in numero.</p> <p>2. Pleading—carrying demurrer back to a prior pleading. Where a demurrer is interposed to a bad plea, and that is the only plea filed, the demurrer may be darned back and sustained to a defective declaration.</p> <p>3:-'- Defective declaration—how availed of. Where a declaration is so defective that it will not support a judgment, as when it shows on its face that another form of action should have been resorted to, advantage may be taken of the defect, in arrest of judgment, or on error, although a good plea may have been interposed.</p>

<p>Whit of Ebbob to the Circuit Court of Hamilton county; the Hon. James M. Pollock, Judge, presiding.</p>

<p>1. Forcible entry and detainer—necessity of an affidavit. The filing of an affidavit, preliminary to a summons in an action of forcible entry and detainer, is essential to gi-ve the justice jurisdiction of the subject matter. The complaint cannot be made verbally under oath, and the justice thereupon issue summons, nor can the justice acquire jurisdiction, by allowing an affidavit to be filed on the day of the trial. The affidavit is the jurisdictional foundation for the entire proceeding, and must precede the summons.</p> <p>2. Appeals prom justices—dismissal in the circuit court. Where a justice issues a summons in an action of forcible entry and detainer without an affidavit having been previously filed, an appeal to the circuit court by the defendant will not cure the want of jurisdiction of the justice over the subject matter ; such a case is not within the rule, that an appeal by the defendant will cure the want of a summons before the justice.</p>

<p>Appeal from the Circuit Court of Clay county; the Hon. E. S. Canby, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Ei chi an cl county; the Hon. Eichabd S. Canby, Judge, presiding.</p>

<p>1. Admissions—of one of several partners—how far binding upon the others. Where in a suit against several as partners, one of the defendants puts the fact of the partnership in issue by plea in abatement, the admissions or statements of his co-defendants, made in his absence, in reference to the existence of the partnership, are not admissible in evidence against him upon that issue.</p> <p>2. A partner can only bind a co-partner by his admissions, within the scope of the business of the firm; to that extent only does the law imply that each partner is the agent of the other.</p> <p>3. So, where certain persons,who are in partnership in a certain business, are sued as partners, with reference to another and a different business, and not within the scope of the former business of the firm, the admissions of one of the partners of the original firm are not binding upon, or admissible in evidence against his co-partners, upon an issue in that suit as to the fact of partnership.</p>

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

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

<p>Judicial sales—inadequacy of price—fraud. Judicial sales will not be disturbed for mere inadequacy of price, unless the price obtained is so grossly inadequate as to amount to a fraud.</p>

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

<p>Appeal from the Circuit Court of Fayette county; the Hon. A. J. Gallagheb, Judge, presiding.</p>

<p>1. Error—who may complain thereof. A party cannot complain of an error, which in nowise injures or impairs his rights.</p> <p>2. So, where the yearly value of a widow’s dower in several tracts of land, was charged upon all the lands, instead of charging each separate tract with the amount arising therefrom, the error, if it be one, is not such as the widow can complain of, inasmuch as it gave her a higher and better security.</p> <p>3. Description op premises—in a decree. A decree establishing a right of dower in certain lands, described one of the tracts, as a part of the N. W. qr. of N. E. qr. of Section 12, without quantity or further description: Held, the description was insufficient, as the part intended to be aifeeted by the decree, could not be ascertained, or separated from the balance of the quarter.</p> <p>4. Pleading in chancery—allegation of the existence of a homestead right. Where a party seeks to assert a homestead right in premises, it is not enough to declare simply that the right exists; the pleading should set out the facts, which, if proven, would establish the right.</p> <p>5. Decree—for dower—requisites thereof. Where the yearly value of the widow’s dower is ascertained, and allowed in lieu of dower, the decree should fix the day in each year for the payment thereof, and it is error to omit to do so.</p> <p>8. Same—should not be confiding. A decree fixing the annual value of a widow’s dower provided that the allowance should be a lien upon the premises, and also provided for a sale of the land in the event of non-payment of any of the installments; the decree then directed the master, in case of sale, to convey to the purchaser, all the right, title, interest and estate of the parties to the suit, in the lands: Held, that the decree was erroneous because the character of estate to be conveyed by the master was inconsistent with the lien previously declared in favor of the widow, for the yearly allowances as they might successively fall due.</p> <p>v</p>

<p>New trial—verdict against the evidence. When the finding of the court below is supported by the evidence, it will not be disturbed.</p>

<p>1. Contracts—excuse for non-performance. As a general rule, where a party binds himself to perform an act, he is held to its performance, except where it is rendered impossible by the act of God or the public enemy. The mere fact that it may be inconvenient, or attended with loss, is no excuse.</p> <p>2. Forthcoming bond—excuse for non-delivery of the property. So, in an action on a forthcoming bond which had been given for the delivery of property seized upon execution, the security in the bond pleaded, that at the time of the levy a portion of the property was subject to a prior valid mortgage, and after the execution of the forthcoming bond the mortgagee took the property into liis possession, as he had a right to do under the provisions of his mortgage, and sold it in part satisfaction of his debt, the property being insufficient to satisfy the whole: Held, the plea did not present a defense to the action. The party interposing the plea could have paid the mortgage debt, and thus discharging the property from the lien, would have been able to deliver it, according to the condition of his bond.</p> <p>8. Measure of damages—in an action on a forthcoming bond. In an action of covenant or debt, on a bond with a condition, the true measure of damages is the loss sustained by the covenantee or obligee.</p> <p>4. So, in an action on a forthcoming bond, for a non-delivery of the property, it was pleaded by the surety that there was a prior mortgage lien upon the property, and by virtue of the mortgage the mortgagee had taken it and subjected it to the satisfaction of a portion of his debt, the property being worth less than the lien of the mortgage: Held, only nominal damages could be recovered.</p> <p>6. If, however, it should turn out that the property was worth more than the mortgage lien, then the excess, whatever it might be, would be the measure of damages, as that would be the extent of the injury sustained by the plaintiff in the execution.</p> <p>6. Plea in bar—when nominal damages are recoverable. In such case, although a plea by the surety sets up that the property had been taken under the prior mortgage after the forthcoming bond was executed, and that it was worth no more than the mortgage lien, still the plea should not be in bar of the action, as the failure to deliver the property according to the condition of the bond not being occasioned by the act of God or the public enemy, there was a technical breach for which there was a right of action, and a right to recover nominal damages.</p> <p>7. Plea of part performance—when good. A part performance of an obligation, accepted by the obligee, is good, and will discharge the obligor as far as it goes. So, a plea in an action on a forthcoming bond, which alleges that a part of the property was delivered to the officer, is, substantially, a good defense to a part of the recovery—to the extent of the proceeds of the property so returned.</p>

Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding. This was a proceeding by scire facias upon a recognizance, in which a judgment was rendered against the defendants. There was no judgment of forfeiture given in evidence, and the want thereof is assigned as error.

' Appeal from the Circuit Court of Clinton county; the Hon. í.TSilas 1. Bryan, Judge, presiding. ‘ ‘ i This-was an action for slander, commenced hy the appellee, against the appellant, in the Circuit Court of Marion county. The cause was removed into the Circuit Court of Clinton county by change of venue, where a trial resulted in a verdict for the plaintiff below for $2,500. The defendant thereupon took this appeal.

<p>1. Service of process—waiver of irregularities. Where an alternative writ of mandamus was served upon the individual members of a county court, when that court was not in session, and a regular term of the court did not intervene between the day of service and the return day, such irregularity in the service would be waived, by the members of the court appearing and making return to the writ, even though such irregularity was set down in the return, as one of the reasons why a peremptory writ should not be granted.</p> <p>2. Same—how such irregularity availed of. Such an irregularity in the service of an alternative writ, could only be availed of as a ground for continuance, until the county court would be in session, that it might determine what defense the county would make.</p> <p>8. Judgment, awarding execution against the county, not void. Where in rendering a judgment against a county, the court awarded execution, such award is not an error, which of itself would render a judgment otherwise valid, void ; nor can such judgment be questioned in a collateral proceeding, but the error can only be availed of in a direct proceeding to reverse the judgment.</p> <p>4. Venue—change of—in a suit against a county. Under the statute authorizing counties to be sued, such suit must be brought in the circuit court of the defendant county, but when so brought, like all civil actions, it may be removed by a change of venue to a foreign county, where the statutory causes authorizing it are alleged to exist.</p> <p>5. Suit against a county—in what court it must be brought—of a proceeding by mandamus. A proceeding by mandamus is a suit, within the meaning of the statute, which requires all suits against a county to be brought in the circuit court of the county being sued, and therefore must be commenced in that court.</p>

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

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

Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding. This was an action on the case, for a malicious prosecution, arrest and imprisonment, and the damages were laid at five thousand dollars. The appellee had rented certain premises of the appellant for á month, and paid the rent. After the expiration of the .term, the appellee was temporarily absent, having left his furniture in the house.

Madison E. Hollister, Judge, presiding. This was a bill in chancery, filed by Samuel Eyster, in the Circuit Court of LaSalle county, on the 5th day of August, A. D. 1862, alleging, in substance, that Eyster, being seized in fee simple of that part of out-lot 34, in the subdivision of the south-west fractional quarter of section Ho. 11, in township 33, north range 3 east of the 3d p. m., which lies between Main street and Webster street in the city of Ottawa, in LaSalle…

This cause was decided at the June term, 1869, and is reported in this volume, ante p. 456. After the foregoing pages were in plates, at the June term, 1870, the appellees applied for a rehearing.