Volume 51 — Illinois Reports

This is an application to this court, in the name of the people, on the relation of Ezra B. McCagg and others, Commissioners of Lincoln Park, for a writ of mandamus, to compel the mayor, comptroller and city clerk of the city of Chicago, to issue and deliver to the relators, the bonds o'f the city, as required by the 12th section of the act of February 8, 1869. entitled “ An act to fix the boundaries of Lincoln Park, and provide for its improvement.”

<p>This is an application to this court for a peremptory writ of mandamus. The opinion contains a statement of the case.</p>

<p>Application for mandamus.</p> <p>The opinion states the case.</p>

<p>Application for mandamus.</p> <p>The opinion states the case.</p>

<p>1. Eminent domain—taking private property for public me—of the compensation therefor. Where the land of an individual is condemned for public use, as for a public park in a city, and the damages assessed therefor, until the damages are paid the land cannot be occupied for the purpose for which it was condemned; but it has been held such damages may be paid by the benefits conferred upon the owner by the contemplated improvement.</p> <p>2. South Pabk op Chicago—appointment of park assessors—ascertaining amount required for condemnation of land. The act of February 24, 1869, in reference to the South Park, in the city of Chicago, confers the power to condemn land for the purposes of the park, and, as soon as the park commissioners shall ascertain, with reasonable certainty, the amount required for the condemnation of the grounds selected for the park, it is made the duty of the Judge of the Circuit Court of Cook county, to appoint assessors to assess the amount so ascertained, upon property subject thereto, in proportion to the benefits resulting to such property, and this duty of the circuit judge to appoint the assessors arises whenever the commissioners shall determine what amount, in their judgment, will be required, and shall apply to the judge to make the appointment.</p> <p>3. The act prescribes no particular mode in which the commissioners shall ascertain the amount required; they are sworn officers, and there is no guide in that respect, but their own judgments. Nor is it necessary the precise amount should be ascertained, but an approximation only.</p> <p>4. Same—of the mode of payment of damages assessed. The act provides the means of making compensation to owners of land condemned, by adopting the mode prescribed in the act of June 32,1852, in relation to condemning the right of way for the purpose of' internal improvement, by which ample provision is made for the payment of the condemnation money.</p>

<p>Partnership—of sutlers—construction of Act of Congress, March 19, 1863. The Act of Congress of March 19,1863, providing for the appointment of one sutler for each regiment, and that the person so appointed shall be the sole sutler, and shall not underlet his privileges, and prohibiting any army officer from being in any manner interested in his stock or trade, was not intended to prohibit a partnership between a sutler and any person beside an army officer, in the prosecution of such business.</p>

Silas L. Betas, Judge, presiding. This was an agreed case in the court below, in which there was a verdict and judgment for the defendant. The plaintiff appeals to this court, and assigns for error the judgment of the court below. The facts presented by the record appear in the opinion of the court.

<p>1. Witness—competency of—to disprove Ms own answer in a garnishee proceeding—construction of act of 1867. Where, in a garnishee proceeding against a bank, the cashier and book-keeper thereof make answer to the interrogatories respecting the indebtedness of the bank to the debtor, the persons so answering in behalf of the bank are competent witnesses in behalf of the creditor, under the act of 1867, to testify in respect to the subject matter of their answers, and even to disprove them.</p> <p>2. Garnishee—of indebtedness accruing to the debtor after service of the writ. The garnishee is required to answer and make full discovery in reference to any indebtedness to the debtor, or property, or effects in his hands up to the time of making his answer, and is not limited in that regard to the date of service of the writ.</p> <p>3. Evidence—admissibility of—payment of checks. In such a proceeding, checks on the bank, drawn by the debtor and honored by the bank, dated after the service of the writ, and before answer made, are admissible as tending to prove the liability of the garnishee, and they establish a prima fade presumption that the money so drawn was that of the debtor.</p> <p>4. Agency—how proven. Nor would the fact that such debtor signed his name to such checks with “ agt.” following it, prove that the money paid on such checks belonged to some other person. But the presumption that the money belonged to the debtor may be rebutted by evidence that the money so deposited and drawn out did belong to another.</p>

<p>1. Error will not always bevebse. Where an instruction given by the court is as favorable to a party as the law would authorize, and even more so, he cannot allege that it is erroneous.</p> <p>2. Negligence—grass and weeds upon a railroad track—a question of fact for the ¡wry. In an action against a railroad company to recover for injury resulting to premises adjoining a railroad, by reason of fire communicated because of dry grass and weeds accumulating upon the right of way, the question of comparative negligence on the part of the plaintiff and the company, in respect to the accumulation of such combustible material, is a question of fact properly left to the jury.</p>

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

<p>Writ of Error to the Circuit Court of Alexander county; the Hon. John Olney, Judge, presiding.</p> <p>The opinion states the case.</p>

Edwin S. Leland,.Judge, presiding. This was an action of assumpsit brought in the court below by Orrin A. Turner against The LaSalle Glass Company, and a trial resulted in a verdict and judgment for the plaintiff. Thé defendants appeal.

<p>Wbit of Ebbob to the Circuit Court of Saline county; the Hon. Ahdbew D. Duff, Judge, presiding.</p> <p>The opinion states the case.</p>

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action for personal trespass, brought by Owens, against Stallings and others, to the Madison County Circuit Court, and taken by change of venue to St. Clair county. The facts as presented by the record are fully stated in the opinion.

<p>1. Stock nranmra at labge—in Monroe, St. Olai/r and other counties— construction of the act of 1867. By the provisions of the 8th and 10th sections of the act of 1867, entitled, “An Act to prevent domestic animals from running at large in the counties of Monroe, St. Clair and other counties,” a majority of the legal votes cast for the adoption of the act, in any one of the counties named in the act, at an election to be held for that purpose, makes such act operative throughout the entire county so adopting it. But if a majority of the legal voters of such county, at such' election, reject the act, and a majority of the legal voters of any one or more of the precincts of said county adopt it, such act goes into effect, and is a law of the precincts in such county so adopting it.</p> <p>2. Statutes—titles of acts—construction of sec. 23, art. 3, of the constitution. An act entitled, “An Act to prevent domestic animals from running at large, in the counties of Monroe, St. Olair and other counties,” which embraces not only more than one county, and may be adopted or rejected by any or all of them, but also embraces the precincts of each county, and although rejected by a majority vote of the county, may be adopted by a majority vote of one or more of the precincts in such county, and become a law valid and operative, within the territorial limits of such precinct, yet, such precincts, being subdivisions of the territorial limits of the counties, are included therein, and ancillary to the subject expressed in such title, and the act is not repugnant to the constitution in that regard.</p> <p>3. If or will that portion of the act, which refers to and adopts the mode of proceeding prescribed in the general estray laws of the State relative to giving notice, and the time within which to reclaim the property, be construed as an amendment of the estray laws in that regard, but will be treated as the adopting of a reasonable and proper mode to carry the actinto effect, and need not be embraced in the title of the act itself.</p> <p>4. Same—submission to a vote of the people. It is fairly within the scope of legislative power, to prescribe, as one of the conditions upon which the law in a given case shall come into operation or be defeated, that it shall depend upon a vote of the people of the locality to be affected by its provisions.</p> <p>5. Statutory rights—proof thereof. Where a party seeks to justify an act, as being authorized by statute, it devolves upon him to show that he is within the conditions of the law which is claimed to be the warrant of his authority.</p> <p>6. Impounding stock—in Monroe and otlw counties, underr act of 1867. So, where under the provisions of the act of 1867, entitled, “An act to prevent domestic animals from running at large in the counties of Monroe, St. Clair and other counties,” a party who seeks to justify the taking up and impounding of stock under that law, must show that he is a householder.</p>

<p>Wbitof Eebob to the Circuit Court of St. Clair county ; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>1. Error "will not always reverse—0/ improper instrúctiiks. Where an instruction professes to set forth the rule fixing the liability of a party, omits an essential element to such liability, but such omission is so clearly supplied by the proof in the case that the error could work iió injury, the judgment will not be reversed because of such erroneous instruction.</p> <p>2. Mechanics’ lien—is a proceeding in chanc&i'y and governed by its rides. A proceeding by petition, to enforce a mechanic’s fieii,' is a chancery proceeding, and governed by the rules of chancery practice; and when the petition waives the sworn answer, although the answer be sworn to, it can not be received in evidence, and has no other or greater weight than an answer not sworn to.</p>

<p>Guaranty—what constitutes. Where a merchant sells goods to another, upon an arrangement that a third party is to collect the account and pay the same to the merchant,-for which, as collector, he is to receive a commission of ten per cent., and such third party is furnished with duplicate bills of account, which are made out in the name of the purchaser, and across the face of the bills retained by the merchant, such third party writes the word “ accepted,” to which he affixes his signature, in an action by the merchant, against him, for the amount of the bills so accepted, and remaining unpaid; it was held, that the credit so given was given to the purchaser, and that the word “accepted,” written on an account, does not import a guaranty of its payment by the person malting the indorsement, and that under such an agreement he could only be held to reasonable care and diligence in the performance of the undertaking, and not liable as guarantor.</p>

<p>1. Evidence—of divorced wife in a suit by Tier former husband—its admissibility. A divorced wife is incompetent to testify in behalf of her former husband, in a suit brought by him against her seducer.</p> <p>2. Same—of adultery by plaintiff—its admissibility in mitigation of damages. In a suit for damages brought by the husband against another, for a criminal intimacy with the wife of the former, it is admissible for the defendant to prove the adulterous conduct of the husband, in mitigation of damages, but such evidence is not admissible in ban of the action.</p> <p>3. Same—of adultm'ous conduct of wife—its admissibility. So, also, is it admissible for the defendant to prove, in mitigation of damages, that the wife of the plaintiff had been guilty of adultery with other persons before her connection with the defendant.</p> <p>4. Same—pecuniary circumstances of the parties—its admissibility. In such case, it is admissible to introduce evidence to show the condition in life and the pecuniary circumstances of the respective parties.</p> <p>5. Collusion—of parties—when a bar. In an action by a former husband against the seducer of his divorced wife, for damages resulting therefrom, evidence of collusion between the husband and wife in bringing the suit, is not admissible in bar of such action. But if the offense of the defendant had been the result of collusion between the plaintiff and his" wife, or of connivance on the part of the plaintiff, evidence of such collusion would bar the action.</p>

<p>1. Judgment lien—its territorial extent. The lien of a judgment upon real estate is only co-extensive with the limits of the county in which it is rendered.</p> <p>2. So, where the State recovered a judgment against a party, in the Circuit Court of Sangamon county, the lien of the judgment attached only to the lands of the defendant in that county.</p> <p>3. Judicial sales—inadequacy of price. A sale of land under execution will not be set aside for inadequacy of price, unless the inadequacy is gross.</p> <p>4. Wills—power of executoi' to sell lands to pay debts—under the provisions of a wiU. Where a will empowered the executor to sell all of the testator’s lands “ outside of St. Clair county,” for the payment of his debts, this was an express limitation upon the power of the executor, so far as it was derived under the will, to sell the lands of the testator lying outside of that county.</p> <p>5. Administration op estates—where the executor has exhausted his power under the will. Where the power of an executor to sell lands for the payment of debts, is limited by the will to lands situate in certain counties, and the proceeds of sales so permitted prove insufficient to pay the debts, the executor may, no doubt, apply to the proper court and procure an order of sale for so much of the lands reserved from sale in the will, as may be necessary to pay the residue of the debts. In' no other way can the executor obtain authority to sell the lands beyond that given by the will.</p> <p>6. Same—of a sale under execution as a means of subjecting property to the payment of other debts. Under the statute, no more property should be sold under an execution than shall be required to satisfy it, if the property can be divided. So, neither an executor, nor a creditor, can properly employ a judgment against the testator, as a means of selling real estate beyond the amount of the judgment, and which is susceptible of division, for the purpose of raising money to pay other debts of the estate. The statute has prescribed the mode in which lands may be subjected to the payment of debts, by an executor or administrator, and that mode should be pursued.</p> <p>7. Purchaser under execution sale—when cha/rgeahle with notice of irregularities therein. Where an executor and an officer improperly employ an execution upon a judgment against a testator, as a means of selling a body of land, exceeding in value the amount of the judgment, and susceptible of division, for the purpose of raising money to pay other debts of the estate, thereby attempting to evade the limitations in the will as to what lands should be sold to pay debts, and also in violation of the law in regard to such sales, and the purchaser under the execution sale participated in the arrangement, he will be held chargeable with notice of the want of power in the executor, and the irregularity of the sale, and subject to all the consequences thereof.</p> <p>8. Same—redemption, in equity, from, such sale—rights of the paHies in respect thereto. But in such case, where the purchaser has acted fairly and without fraud, upon bill in equity by the heirs to redeem from the sale, the redemption will be allowed, and inasmuch as the money advanced by the purchaser, paid and discharged liens of creditors of the estate, he will be subrogated to their rights.</p> <p>9. In stating the account upon such redemption, the heirs will be required to pay to the purchaser his purchase money, with interest. He will also be allowed the taxes he has paid on the premises, and for lasting and valuable improvements which are not of a merely ornamental character, made before suit brought; he should also be allowed to remove statuary and other ornaments, so far as may be done without permanent injury to the freehold; and he will .be chargeable with rents and profits.</p>

<p>1. Conveyances—of notice of a prior conveyance. Where a grantee of lands takes a deed to the same, with notice of a prior conveyance, not then recorded, he is not an innocent purchaser, but takes, subject to all the rights of the grantee under the prior conveyance.</p> <p>2. And where such grantee, with notice, conveys to another, but subsequent to the recording of the prior conveyance, such subsequent purchaser is chargeable with notice by the record.</p>

Silas L. Bryan, Judge, presiding. This suit was begun by bill in equity, filed in the Circuit Court of Monroe county, praying an injunction to restrain the collection of certain taxes or assessments, levied by William Wilson, sen., Sidney Todd, William B. Quigley, William Kinney and Hyacinthe Demete, commissioners appointed under and acting by virtue of the powers granted by an act of the general assembly of Illinois, entitled “ An Act to provide for the constructing of a…

Joseph Gillespie, Judge, presiding. This case was brought to this court upon an agreed state of facts, involving the same questions as the preceding case.

S. L. Richmond, Judge, presiding. This was an action of assumpsit, brought npon a promissory note, dated Uov. 7, 1868, for $1,185.86, due thirty days after date, with interest at ten per cent., signed by Richards as maker, and Cassell and Magarity as securities. Upon this note were total endorsements of payments made' at three different times, amounting to $775.

John A. Jameson, Judge, presiding. This was an action of assumpsit on a promissory note, brought by Sturges as endorsee, against Keith and others, and a trial was had before the' court.

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Charles Turner, Judge, presiding.</p> <p>The opinion states the case.</p>

Jaimes Steele, Judge, presiding. This was an action of assumpsit brought by English, against Beckwith, as county treasurer of Vermilion county, to recover money alleged to have been paid under duress. The money so sought to be recovered had been collected from the plaintiff by the collector, under a levy of a tax alleged to have been made by the board of supervisors. The trial resulted in a verdict and judgment for the plaintiff, and the defendant appealed.

<p>1. Of annual elections—in towns incorporated under the general law. Under the general law for the incorporation of towns, it is made the duty of the president and board of trustees to give at least ten days notice, before the expiration of their term of office, of the time and place for the election of their successors in office, and if they shall neglect to give such notice before the expiration of their term of office, they may lawfully do so at a subsequent time, as they exercise the functions of their office until their successors are elected.</p> <p>2. Same—of the general rule in that regard. Where the members of a corporation are directed to be annually elected, the words are only directory, and do not take away the power incident to the corporation to elect after-wards, when the annual day has, by some means, free from design or fraud, been passed by.</p> <p>3. Same—of the power of calling am, election for trustees of a town, incorporated under the general law. Under the general law for the incorporation of towns, the people elect the trustees of the town, as such, and the trustees themselves elect one of their number as president, yet in giving notice for such election it is proper that the purpose designated should be, to elect a board of “ president and trustees,” according to the express language of the 8th section of that law.</p> <p>4. Mandamus—when awarded. Where the president and board of trustees of a town incorporated under the general law, have neglected to give the requisite notice for holding the annual election for the new board, within the year for which they were elected, as prescribed by law, and refuse afterwards to give notice and call a meeting of the qualified voters of such town, for the election of their successors in office, a mandamus will be awarded, compelling them to do so.</p>

<p>1. Evidence—of the admissions of a vendor after the sale. The statements of a vendor of land made after the sale, are not admissible for the purpose of showing the transaction was fraudulent, or to prove any other fact affecting the title of the vendee.</p> <p>2. Improper evidence—should not he admitted even with an explanation. Where a party offers matter in evidence which is not properly admissible, the opposite party has the right to have it entirely excluded from the jury; and its admission, even with an explanation from the court to the jury as to its legal bearing, is erroneous.</p> <p>3. So, in an action of ejectment, where the plaintiff sought to prove statements made by the vendor óf the defendant, after the sale to him, relartive to facts affecting the title of the defendant, the statements were admitted against the objection of the defendant, with an explanation by the court, that such statements were not evidence against the defendant,* but were evidence against his vendor: it was hdd, their admission was erroneous, notwithstanding the explanation of the court, as they would be likely to mislead the jury.</p> <p>4. Ebatjd—hath parties must participate. To avoid a sale upon the ground that it was fraudulent, as to creditors, it must appear that both the vendor and vendee were parties to the fraud.</p>

Charles Turner, Judge, presiding. This was an action of trespass on the case, brought by Kickler and Behrens against the Toledo, Peoria & Warsaw Railway Company, to recover the value of thirty barrels— 1.264 gallons—of whiskey, and twenty barrels of pork, alleged to have been shipped from Pekin and consigned to St. Louis, the property having been destroyed while in transitu, by fire, from the negligence, as is alleged, of the defendants.

Writ of Error to the Circuit Court of La Salle county; the Hon. Edwin S. Leland, Judge, presiding. The facts in this case are sufficiently stated in the opinion of the court.

<p>Writ of Error to the Circuit Court of Livingston county; the Hon. Charles E. Starr, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. S. L. Kichmond, Judge, presiding.</p> <p>The opinion states the case.</p>

Charles H. W ood, Judge, presiding. This was an action of assumpsit, brought to the court below, to recover damages for a breach of contract. The trial resulted in a verdict and judgment for the plaintiff, and the defendants appealed. The further facts are stated in the opinion.

<p>1. Practice—Oooh Oircuit Oourt—in all cases appealed to—affidavit of merits required. Under the act of January 14th, 1857, regulating the practice in the Circuit Court of Cook County, in all appeals prosecuted to that court, no matter what the form of action, or where the domicil of appellant maybe, an affidavit of merits must be filed within the period limited to plead, as in other cases, to prevent a dismissal of the appeal.</p> <p>2. Appeal—¿from justice of the peace—when dismissed—discretionary with, the court whether default shad be set aside. An appeal from a justice of the peace to the Circuit Court of Cook County, was dismissed by the court upon motion, for want of an affidavit of merits, and a procedendo awarded to the justice. Afterwards, and at the same term, the defendant’s attorney filed an affidavit of merits, and that he was informed and believed that defendant was not a resident of Cook county, and entered a motion to set aside the default, which motion the court overruled. Held, that there was no error in this, it being discretionary with the court, whether to set aside the default or not.</p>

Writ of Error to the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding. This was an action of assumpsit, brought by Miller against Hammers, upon a promissory note, bearing date February 26th, 1864, for $806, and due two years after date, with six pier cent, interest.

<p>This was a petition for Mandamus upon an agreed state of facts.</p> <p>The opinion states the case.</p>

<p>Writ of Error to the Circuit Court of Tazewell county; the Hon. James Harriot, Judge, presiding.</p> <p>The opinion states the case.</p>

P. K. Leland, Judge, presiding. This was an action brought to recover for services rendered in training a horse for a race, and for money laid out and expended for the shoeing and feed of 'such horse while under training. On the trial the jury found for the defendant, and the court rendered judgment upon the verdict. The plaintiff appeals.

This was a suit in chancery, brought by the appellant, Eliza Johnson, against Josephine M. L. Montgomery and Edgar H. Montgomery, the appellees, by petition, claiming dower in lot Mo. 41, in Johnson’s subdivision of part of the south-east fractional quarter of sec. 2J, town 39 north, range 14 east of the 3rd p. m., in the city of Chicago, Cook county, as the widow of William F. Johnson.

This was an application to this court, for a writ of mandamus in the name of the people, upon the relation of the American Central Railway, against the Supervisor and Town Clerk of Ohio Grove Township, Mercer county, to compel the respondents to execute, issue and deliver to the relator, certain bonds of said township, agreeably to the terms of subscription to the capital stock of said railroad, made by said township.

<p>1. Evidence—parol evidence to vary a writing. Parol evidence is inadmissible for the purpose of showing that other property, not answering the written description in a mortgage, was intended to be included by the mortgagor.</p> <p>3. The principle is well settled, that a written instrument can not be varied by parol evidence. The instrument must speak for itself, unless there be a latent ambiguity, which may be explained by such evidence.</p> <p>3. Eobheb decisions. The case of Myers v. Ladd, 26 Ill. 415, is not in conflict with this principle.</p> <p>4. Chattel mobtgages—desm'vption of property mortgaged,—must control. A mortgagee of personal property must see to it that the property mortgaged is correctly and truly described, so that others may not be misled. The description given in the mortgage must control, otherwise great fraud and injury might result.</p> <p>5. Tbovbb—action of—who cam maimtain. The doctrine is well settled, that the action of trover may be maintained by a naked bailee.</p> <p>6. And equally so by a pledgee for value; and, as this court has said, one in such position may loan the property pledged, temporarily, to the pledgor, for a special purpose, and recover in trover, if the property be not returned to him.</p> <p>7. By an arrangement between A and D, D sold and turned out to A certain cattle, to secure the payment of $85 borrowed money, the property to be A’s until the debt was paid, D to have until a day specified to pay it. Afterwards, A loaned the cattle to D, temporarily, and for a specific purpose, D agreeing to re-deliver to him; Held,, that this transaction amounted to a conditional sale of the property, and D failing to restore it, after the purpose was fulfilled for which it was loaned, A could recover in trover.</p>

Writ of Error to the Superior Court of Chicago. This was a suit in chancery, instituted in the Superior Court of Chicago, by the defendant in error, against the plaintiffs in error, the facts in which case are as follows : On the 7th of November, 1868, Walter L. Newberry, of Chicago, died at sea, leaving a widow, the defendant in error, and two daughters, one of whom is an infant of the age of sixteen years.

<p>1. Married woman—of her right to sue in her ovm name, under the act of 1861. Since the act of 1861, securing to married women the enjoyment of their separate property, the husband’s right to the curtesy in the land of his wife is contingent, and does not vest in the husband until the death of his wife; and, until it so vests, the husband has no present interest for which he can bring an action in his own name, but the wife may, under the act of 1861, maintain an action in her own name when her separate property has been injured, or her rights thereto have been affected.</p> <p>3. So, where land was conveyed to the wife, since the passage of the act of 1861, she may maintain an action in her own name for a breach of covenants in the deed, without joining her husband.</p> <p>8. Incumbrance—what constitutes—of aright of wa/y. Where the owner of a tract of land had conveyed toa railroad company a right of way over the same, upon which the company had built and were operating their road, and subsequently thereto such owner conveys the same land to another, by deed purporting to pass the fee to the entire tract, without any reservation in respect to such right of way, the easement so held by the railroad company is an incumbrance upon the land, and its existence constitutes a breach of a covenant against incumbrances contained in the deed, for which the covenantee may maintain his action. '</p> <p>4. Mor is it a release or discharge of the covenant, to say that both parties knew that a railroad was being operated, which run through the land, and that such railroad company owned and was in possession of a certain strip as their right of way, and that to that extent the covenant in the deed was not true, or that it would not be performed when it was made.</p>

<p>1. Justices op the peace—consolidating causes of action—splitting a demand,. Under the statute requiring a party commencing a suit before a justice of the peace, to consolidate all his demands which are of such a nature as to admit of it, and which do not exceed one hundred dollars when consolidated, into one action, if the plaintiff splits his demand and sues for one item only, he is thereby barred from suing to recover for any of the other items.</p> <p>3. In such case, the bar only extends to the items not incorporated in the suit, not the original claim.</p> <p>3. Same—-form of action immaterial. A party may succeed in any form of action, on appeal from a justice of the peace to the circuit court, when it appears that the justice of the peace had jurisdiction of the subject matter.</p> <p>4. In such cases, the only question to be determined is, had the justice of the peace jurisdiction; if so, the plaintiff can not be held to the same form in which his claim was prosecuted before the justice of the peace.</p> <p>5. Former decisions. The case of Gates v. City of Aurora, 44 Ill. 131, is not in conflict with the decisions announced in the cases of Yanighan v. Thompson et al. 15 Ill. 39, and Swingley v. Haines, 33 ib. 316, which are in harmony with the views here presented.</p>

Writ oe Error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding. This was an action of replevin for a horse, originally brought before a justice of the peace, by the appellant, against the appellee, and. judgment was rendered in favor of the defendant. An appeal was taken to the Circuit Court of Knox county, and a trial had before the court and a jury, which resulted in like manner. The plaintiff brings the case to this court upon writ of error.

<p>Writ of Error to the Circuit Court of Henry county; the Hon. George W. Pleasants, Judge, presiding.</p> <p>The facts are fully presented in the opinion.</p>

This was a petition for a rehearing. This case was decided at the September term, A. D. 1867, and is reported in 46 Ill. 252, where a statement of the facts is fully set forth. Reference is made to that case for a better understanding of the opinion of the court upon the petition.

<p>Appeal from the Circuit Court of Iroquois county} the Hon. Charles R. Starr, Judge, presiding;.</p> <p>The opinion states the case.</p>

<p>Appeal from the Circuit Court of Mercer county; the Hon. Arthur A. Smith, Judge, presiding.</p> <p>The facts are fully presented in the opinion.</p>

Writ of Error to the Circuit Court of Kane county; the Hon. Sylvahus Wilcox, Judge, presiding. John McCarty was indicted in the court below, for the alleged murder of one Michael Kinsella. The trial resulted in a verdict of guilty of manslaughter, and the jury fixed the term of confinement in the penitentiary at ten years. A new trial was denied, and judgment entered upon the verdict, and the defendant thereupon sued out this writ of error.

<p>1. Setting aside defaults—how fair disoretiononry. The matter of setting aside defaults is regarded as largely discretionary with the circuit court, and the appellate court will not interfere, unless it is plainly apparent that such discretion has been wrongfully and oppressively exercised.</p> <p>2. So, where it is the rule of the circuit court, that copies of affidavits offered in support of a motion to set aside a default shall be served upon the opposing counsel, which is neglected to be done, and the court refuses to entertain the motion, this is not such error as can he availed of in this court. •</p> <p>3. Motion to set aside default—when'it must be made. A motion to set aside a default comes too late when made at a term subsequent to that at which the default is entered.</p>

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

<p>1. Evidence—written admission of guilt—made with a mew to compromise—not admissible. The written admission of a party accused of crime, made with a view to compromise the matter with the injured party, on the basis that he should not be prosecuted, is not admissible as evidence on indictment for such offense.</p> <p>2. Same—confessions—rule as to. The rule is, a confession can never be received in evidence, when the prisoner has been influenced by any threat or promise.</p> <p>3. Same—ride in wiminal cam—not essentially different in civil cases. In civil cases, what is confessed by way of compromise, or to buy peace, is never allowed to be taken advantage of and made evidence; and this rule is not essentially different in criminal cases.</p> <p>4. Same—on examination of a prisoner—the precise language used should he taken down. When resort is had to the examination of a prisoner, care should be taken that such examination is taken down in the precise words used by him, as the change of a word might change the character of the confession really made.</p> <p>5. Same—copy of a confession—made from memory. And it would be unsafe to permit a copy of such confession to be given in evidence, written out from mere recollection of the contents of the original, after a lapse of nearly two years.</p> <p>6. Same—character of proof—to sustain charge of ra/pe. Where the offense charged is rape, the evidence to support it should not be of a questionable character, but sufficient to remove all reasonable doubt from the minds of the jury.</p>

Charles Turner, Judge, presiding. This was an action of trespass on the case, brought by the appellee against the appellants, in the court below, to recover the value of certain stock, alleged to have been killed by the cars of the appellants. A trial was had before the court and a jury, and judgment rendered in favor of the plaintiff, for $475.00. Whereupon the defendants bring the record to this court by appeal.

<p>1. Vendor and purchaser—in contract to convey land—what sufficient description of premises. A contract for the sale of land, described the premises as “ the east \ of N. W. i, Sec. 27, T. 38,14 E. of 3d P. M.,” omitting to state the range and the position of the land as to the base line: Held, that this description was sufficient, as by a reference to the government land surveys, it would be seen that there is no township 38, south of the base line and 14 east of the 3d P. M., and hence, it must be north of the base, and in 14 east of said meridian, which would locate the land in Cook county.</p> <p>2. Same—description must he sufficient—to enable a surveyor to locate the premises. A contract for the conveyance of lands, will not, on account of a defective description of the premises, be held invalid, where such description is sufficient to enable a surveyor to locate them.</p> <p>3. Same—question of sufficiency of description—when to be left to the jury. In an action to recover damages for a breach of such contract, where it is objected, that the instrument sued upon does not describe the lands, the question as to the sufficiency of such description is for the jury to determine, from the evidence, unless it is apparent from the instrument that a location can not be made.</p> <p>4. Same—such contracts wiU he enforced—when intention cam. he ascertained. Courts will not permit contracts of this character to fail, when from the entire instrument, and the general acts of the government, the intention of the parties can be ascertained.</p> <p>5. Evidence—contracts to convey land—in actions for breach of—how value may he shown. In an action to recover damages for the breach of a contract to convey land, the plaintiff, in order to show the value of the premises in controversy, will he permitted to prove, not only the worth of other adjacent property, at or near the date of such contract, but even the value of lands of a different quality, lying in the immediate vicinity, leaving it for the jury to determine the difference in value.</p> <p>6. Same—valve—proof of—mot confined to experts. And in such cases, any person knowing the property and its value, may testify upon that question. Proof of the value of the property, need not be confined to persons only who are engaged in buying and selling real estate. Such knowledge is not scientific.</p> <p>7. Witnesses—to prove the value of property—of the number to be called. In actions of this character, it is error for the court to refuse to permit a party to call more than four witnesses, by whom to prove the value of the property. The liability of persons to differ materially upon such question, makes it necessary that parties should be allowed to call a larger number than four witnesses, to prove its value.</p> <p>8. Same—construction of the statute—concerning the number of. The statute provides, that the costs of four witnesses only shall be taxed against the unsuccessful party, unless the court shall certify that a greater number were necessary; but this in no wise prevents a party from calling a larger numher, provided he is willing to risk the liability to pay their fees.</p> <p>9. Same—power of the court to limit the number of. Nor in such case, is this court prepared to hold, that the number of witnesses to be called by either party, upon the question of the value of the property, can be limited.</p> <p>10. Same—number certified to—discretionary withthe court. But the court would of course determine, in the exercise of a sound discretion, whether he would certify to the necessity of more than four witnesses, and if so, to what number.</p>

Writ of Error to the Circuit Court of Mercer county; the Hon. Arthur A. Smith, Judge, presiding. This was an action of assumpsit, brought in the court below by Josephus Wade, to recover for three certain promissory notes executed by the defendant, Taliaferro, to Wade. The defense produced in eyidence a receipt signed by Wade, of a subsequent date to the notes sued upon, and which was in full of all demands to date.

<p>1. Practice in chancery—what is compliance with a rule to answer. Under a general rule to answer by a certain day in term, a plea, answer or demurrer may be filed.</p> <p>3. Same—of a rule expiring in vacation. But it may well be doubted, whether it should be so held as to long rules expiring in vacation.</p> <p>3. Partition—decree must declare the rights and interests of the panties. In a suit for partition of lands, the bill stated that the premises were subject to a certain mortgage, executed to one of the defendants, and the answer of such mortgagor defendant also set up the mortgage; but on the hearing, neither the mortgage was put in evidence, nor any proof offered in regard to it, and in the decrees of partition and sale, which were subsequently entered, the court failed to make any mention of it: Held, that this was error; that the court should have passed upon the mortgage, in such manner as to have clearly defined the interest which would be acquired by a purchaser at the sale.</p> <p>4 Under such circumstances, a proper course would have been, to decree a sale of the premises discharged from the mortgage, and that the proceeds be brought into court. The court could then have entered a rule, directing the money to be paid over, as provided in the decree, should the mortgagor defendant fail, by a certain time, to make proof of the same, and the amount due thereon.</p> <p>5. In suits of this character, the statute not only requires all persons having either a present or contingent interest, to be made parties, but further requires the court, in its decree, to declare the rights and interests of all the parties.</p> <p>6. Same—counsel fees—when to be taxed as costs. The terms of the law of 1869, providing for the allowance of counsel fees, in proceedings for partition, are not mandatory, and the act should be construed as intending such taxation only in cases where the proceedings are amicable.</p>

<p>1. Practice—rendition of judgment by a court—disposes of a motion to set aside the verdict and for a new tried. Where the record entry is, that the court overruled the motion for a new trial, and the motion entered was, to set aside the verdict and to grant a new trial: SeM,'that this disposed of the whole motion. The rendition of judgment disposes of all such motions.</p> <p>2. Evidence—contracts. In an action to recover for the breach of a contract to deliver a certain number of agricultural implements, the plaintiff offered in evidence an order or memorandum, specifying the number and quality of the implements ordered, for the purpose of enabling the jury, in connection with other proof, to fix the price agreed to be paid. It did not constitute the contract of the parties, and the suit was not based upon this instrument. To this the defendant objected, for the reason that a copy of such order was not filed with the declaration: Held, that it was not necessary to file a copy of such instrument with the declaration, and that it was properly admitted in evidence, for the purposes for which it was offered.</p> <p>3. Damages'—measure of—for breach of contract. And in such case, the measure of damages would be, the property purchased not having been paid for, the difference between the value of the articles at the place and on the day when the delivery ought to have been made, and the contract price.</p> <p>4. Former decisions. ' The cases of Smith v. Dunlap, 12 Ill. 184, and Dhétps v. McGee, 18 ib. 155, cited in support of this rule.</p> <p>5. Damages—nominal—whenplaintiffordy entitled to. And where in such case, the proof shows that at the time when the articles contracted for should have been delivered, they could have been purchased for less than the contract price at the place of delivery, the plaintiff is not entitled to recover other than nominal damages for the breach of the contract.</p> <p>6. The law will not permit a party to willfully violate his contract, and if he does, the other may sue and recover nominal damages, even when substantial damages have not been sustained.</p> <p>7. Fraud—vitiates every contract—fedse representations—effect of. Where a party, by means of false and fraudulent representations concerning his pecuniary responsibility, procures from another a contract for the sale and delivery to him of certain property, the latter is discharged from performance of the agreement, upon discovery of the fraud practiced upon him. Fraud vitiates all contracts.</p>

Abthue A. Smith, Judge, presiding. This was an action of assumpsit, brought by Whiteleather against Chichester, in the Knox County Circuit Court, to recover damages for a failure to deliver ten bushels of osage orange seed. The trial resulted in a verdict and judgment for the plaintiff.

Writ oe Error to the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding. This was an action of assumpsit, brought in the court below, by the appellee, against the appellant, to recover money alleged to have been placed in his hands, in consideration that he would be the surety of the appellee. The case was tried before the court and a jury, and a verdict found for the plaintiff for $265.

<p>Witness—credibility of. A suit in chancery was instituted to compel a conveyance of certain lands to which the complainant claims title, through certain assignments of a certificate of purchase to him, made, as was alleged in the bill, by defendant’s assignee, to complainant. The answer denies the assignment of the certificate of purchase by the defendant, or by any assignee of the defendant, and alleges that such assignments are fraudulent. On the trial of the cause, it was proved that the witness for the complainant, by whom the validity of the subsequent assignments was attempted to be proved, had written two letters in which he strongly intimated that, for a consideration, he would swear in favor of the defendant; that there was money in it, and that the termination of the case depended upon his evidence. It also appeared from the evidence, that the assignee of the defendant, had left the State, and was absent at the time the assignment by him to the complainant bears date. Upon these facts appearing, the court. below disregarded the testimony of the witness as unworthy of belief, and dismissed the bill: Held, that a court of chancery is justified in discrediting the testimony of a witness under such circumstances.</p>

<p>1. Navigation—navigable streams—erection of bridges across them,—of the relative rights in respect thereto. As has been announced by this court, the true doctrine is, relative to the constitutional power of a State over the navigable waters lying within its jurisdiction, that the right of free navigation of such waters is not inconsistent with the right of the State to provide means of crossing them, by bridges or otherwise, provided such bridges do not essentially injure their navigation. The right to navigate these waters, and the right to cross them by bridges, are co-existent, and neither can be permitted to destroy or essentially impair the other.</p> <p>3. Former decisions. The case of The Illinois River Packet Company v. The Peoria Bridge Association, 38 Ill. 467, is cited in support of this doctrine, $md commented upon by the court at length.</p> <p>3. Navigation—rivers above the ébb and, flow of the tide—not deemed navigable by the common law. By the common law, rivers are not deemed navigable above the ebb and flow of the- tide. And in the sense of the common law, which obtains in full force in this state by legislative enactment, neither the Mississippi, Illinois nor Chicago rivers is a navigable stream.</p> <p>4. Water course—the fee of such portion of a river as is measured by the width of the street—is in the corporation. As this court has said, the fee in the streets of a city is vested in the corporation. Bridges are but streets or highways, over water; the fee, therefore, of such portion of the river as is measured by the width of the street of which the bridge forms a part, is likewise in the corporation.</p> <p>5. Navigation—namigable streams—right to bridge them. This being so, it is competent for the corporation to devote such portion of the river to any use which, in the judgment of its authorities, shall be deemed most promotive of thepublic interests, subject only to the easement for navigation.</p> <p>6. Bridges—corporation possesses the power to regulate. The power to build bridges, being a necessary power, and expressly granted to a corporation, the power to regulate them—to prescribe the time and manner of vessels passing through them—is a necessary incident of that power.</p> <p>7. Chicago—power of the common council to regulate the bridges—ordinance of April 32d, 1867—valid. By the charter of the city of Chicago, authority is conferred upon the common council, to pass ordinances regulating the time and manner of vessels passing through the bridges which cross the Chicago river; and the ordinance of the city, for such purpose, passed April 22d, 1867, is valid, being a proper and reasonable exercise of that power.</p> <p>8. Navigation—power of the States over namigable waters, exclusively within their jurisdiction. Neither under the power granted by the States to congress to regulate commerce with foreign nations and among the several States and with the Indian tribes, nor under any other provision of the constitution, or of any act of congress, has this power of the States over the navigable rivers exclusively within them, to render them useful for their domestic purposes, been surrendered, or designed to be surrendered.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. ¥m. W. Heaton, Judge, presiding.</p> <p>The facts in this case are sufficiently stated in the opinion.</p>

<p>1. University op Chicago—the restraint upon the sale of liquors within one mile thereof. That clause in the charter of the University of Chicago, which provides, that a place where intoxicating liquors are sold, or furnished for other than medicinal or mechanical purposes, and located within one mile of the site of such university, shall be declared a nuisance, and subject to abatement as such, is repealed by the act of February 13,1863, revising the charter of the city of Chicago, whereby the power to grant or refuse licenses for the sale of liquors, within the city limits, is conferred on the mayor and city council.</p> <p>2. Statutes—repealed by implication. Where there is a clear repugnance between two acts of the general assembly, the later expression of the legislative will, will be regarded as a repeal of the former. So, where the former act prohibited a certain thing to be done, and a subsequent act granted the power to permit or prohibit the same thing to be done, there is such a repugnance between them, in that respect, that the later statute will be held to operate as a repeal of the former.</p> <p>3. Chant op power—to a corporation—what constitutes. A clause in the charter of the University of Chicago, which prohibits the sale of liquor within one mile thereof, was not a grant of power to the corporation on that subject, but was a prohibition by the legislature itself; and in this there is a distinction between this case and the Dartmouth College case, as there, the power attempted to be controlled by the legislature had been conferred upon the college authorities, to be exercised by them.</p> <p>4. Vested rights—police power of-the State. But, even if the legislature had given to the University of Chicago the power to prohibit the sale of liquors within prescribed limits, it being a part of the police power of the State, it could be resumed at the pleasure of the legislature, for the police power of a State cannot be made the subject of an irrevocable grant, either to a municipal or private corporation, or to private individuals.</p>

<p>1. Insurance—policy of—upon goods being constantly sold, and replenished. A policy of insurance upon a stock of goods, which is being constantly sold and replenished, covers as well the new purchases as the stock on hand at the date of the policy.</p> <p>2. But in order that goods subsequently purchased shall become a part of the stock in trade so as to be covered by the insurance thereon, it is not enough that other goods are purchased, but it must appear they became a part of the stock, from which sales were to be made as from the general stock, of which it may be claimed the new purchases became a part.</p>

<p>Writ of Error to the Circuit Court of Woodford county; the Hon. S. L. Eichmokd, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>1. Evidence—breach of promise to marry. It is competent, in an action for a breach of promise of marriage, for the plaintiff to prove that she appeared to be sincerely attached to the defendant.</p> <p>• 2. Same—admissibility of—in mitigation of damages. And where the plaintiff, in such case, had introduced evidence to prove that the defendant was a man of large wealth, for the purpose of increasing the amount of damages sought to be recovered, it was competent for the defendant to offer, in rebuttal, evidence of the fact that property belonging to the defendant had, without his consent, been sold since the commencement of the suit, to satisfy pre-existing indebtedness, under a mortgage given to secure the same prior to a breach of the contract for which this suit was brought.</p> <p>3. It is also admissible for the defendant, in such case, to introduce evidence, in mitigation of damages, of the fact that he was afflicted with an incurable disease, at the time of the breach of the promise to marry.</p> <p>4. Same—-of general chm'acter—when admissible. Where a defendant, in an action for a breach of promise of marriage, to avoid a recovery of damages for the breach, and in justification of the breach, introduces evidence that the plaintiff has been guilty of the crime of procuring an abortion, or of acts of unchastity, it is admissible for the plaintiff', in such case, to rebut such testimony by evidence of general good character, and thereby render it improbable that the charge is well founded.</p> <p>5. Breach op promise op marriage—e¡fecí of unchastity. When a party enters into an engagement to marry, with a knowledge that the other party was unchaste, he will be deemed to have waived the objection, and , can not afterward set it up as a reason for his refusal to comply with his/ promise. But if either party shall be guilty of acts of unchastity subsequent to the engagement, the other party is absolved from the contract, whether-such subsequent acts be known to the latter or not.</p> <p>6. Contumacious witness—punishment of—how far discretionary. Where a witness, introduced by a party, refused to testify, the degree of punishment to be inflicted upon the witness, for his contumacy, is so far a ■ matter of discretion with the court below, that its action in respect thereto can not be reviewed in the appellate court.</p> <p>7. Practice—of the introduction of emdence—after testimony is closed. Permitting evidence to be introduced after the testimony is closed, is a matter of discretion with the judge trying the case, and he alone can determine whether such evidence shall afterward be admitted, under such restrictions as shall work no injury to the opposite party.</p> <p>8. Reading law—to a jury. The court may, in civil cases, refuse to permit counsel to read law to a jury, and this cannot be assigned for error. It is the province of. the court, in such cases, to interpret the law for the jury, and not for the jury to interpret the law for themselves.</p>

<p>Writ oe Error to the Recorder’s Court of the City of Chicago; the Hon. W. K. McAllister, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Chaeles Tueneb, Judge, presiding.</p> <p>The facts in this case are sufficiently stated in the opinion of the court.</p>

Wbit of Eeeoe to the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding. The facts in this case are fully stated in the opinion of the court.

<p>Wbit of Eebob to the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding.</p> <p>The opinion states the case.</p>

Writ of Ebbob to the County Court of Henry county; the Hon. Julius S. Hihmaf, Judge, presiding. This was a proceeding instituted by the defendants in error, George W. Ellsworth and Martha H. Walsh, in the court below, against the plaintiffs in error, Caroline Moore and Alsina Moore, by Salmon W. Knapp, them guardian, and Gustus Emanuel, to obtain leave to sell real estate for the payment of debts against the estate of Dan Moore, deceased.

Wbit oe Eebob to the Becorder’s Court of the City of Chicago; the Hon. W. K. McAllistbe, Judge, presiding. The facts in this case are fully stated in the opinion of the court.

Joseph E. Q-art, Judge, presiding. This case was before this court on a former occasion, when the judgment was reversed and the cause remanded, and is reported in 24 Ill. 614, where a full statement of the case will be found. The facts necessary to an understanding of this decision are sufficiently set forth in the opinion.

Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. The facts in this case are fully presented in the opinion of the court.

Writ oe Ebror to the Circuit Court of Woodford county; the Hon: S. L. Richmond, Judge, presiding. This was an action commenced by attachment, brought by the defendants in error, Henry Simoneau and Walter P. Col-burn, in the court below, against the plaintiffs in error, William P. Bryant and S. B. Bushnell, partners, under the firm of Bryant & Bushnell. The cause was tried before the court and a jury, and a verdict found for the plaintiffs for $452.49.

<p>Appeal from the Circuit Court of Grundy county; the Hon. Josiah McBobebts, Judge, presiding.</p> <p>The facts in this case are sufficiently stated in the opinion of the court.</p>

<p>1. Mortgages—sede by the mortgagor. Where a mortgagor sells apart of the mortgaged premises, the purchaser assuming the payment of the mortgage as a part of the purchase money, the land purchased is, in his hands, the primary fund for the payment of the mortgage.</p> <p>2. Same—where the estates of mortgagor and mortgagee unite in the same person. And where the grantee of such a purchaser purchases the original mortgage, it is thereby paid and discharged.</p> <p>3. So, where a mortgagor sold the mortgaged premises, subject to the mortgage, and a third party, having purchased the mortgage, afterwards, through several mesne conveyances, obtained title to the land, he thereby became vested with the estates of both mortgagor and mortgagee; the owner of the mortgage having acquired the primary fund for its payment, which is of value equal to the mortgage, he thereby occupied the position of one who had effected a strict foreclosure, and the mortgage debt must be regarded as paid, and not recoverable against the mortgagor.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.</p> <p>The opinion states the case.</p>

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

Ebastus S. Williams, Judge, presiding. This was an action of replevin, brought by Alexander Bar-net, against Bobert Fergus, and John L. Beveridge, sheriff of Cook county, to recover of them the possession of certain printing materials, printing presses, and “ stock in trade,” of James Barnet, which had been levied upon by the sheriff, as the property of James Barnet, under, and by virtue of, an execution issued upon a judgment in favor of Fergus, for $1,861, and costs, which…

<p>Arpear from the Superior Court of Chicago.</p> <p>The opinion states the case.</p>

<p>New tbialk—verdict against the evidence. In. an action to recover for services alleged to have been rendered by the plaintiff for the defendant, upon the question whether there was an employment, the court below found for the defendant, and the judgment was reversed upon the ground, that although there was no direct evidence of any employment of the plaintiff by the defendant, there were some circumstances from which it might fairly be inferred.</p>

S. L. Richmond, Judge, presiding. This was an action on the case, brought by Barst, against the Toledo, Peoria & Warsaw Railway Company, to recover damages for killing stock. The defendants interposed a demurrer to the declaration, which was overruled. The defendants abided by their demurrer, and judgment was rendered against the defendants for $90 and costs of suit.

Writ oe Eeeoe to the County Court of LaSalle county; •the Hon. John C. Champlin, Judge, presiding. The facts in this case are fully stated in the opinion of the .court.

<p>1. Covenants fob title—run with the land. A covenant of warranty in a deed, to the grantee, his heirs and assigns, runs with the land, and its benefits may be claimed by a remote grantee.</p> <p>2. Same—whether am, eniction necessary. To recover upon a covenant of warranty, there must be an eviction or something equivalent thereto. Anciently, an actual eviction had to be shown, but the present and better doctrine is, that a technical eviction is not necessary, but that the covenantee or his assigns may peaceably yield to a paramount title.</p> <p>3. The covenantee may make an effort himself to recover possession, if it be adversely held, or, if in possession, he may await an action by his adversary, or, being able to show his adversary has the superior title, may yield to it, and purchase it for his own protection, and then resort to his remedy on the covenant of warranty to him.</p> <p>4. Same—of the necessity of notice to the warrantor. It is not essential to a right of action on the covenant that the covenantor have notice to come in and defend the title he has warranted; the only purpose subserved by giving such notice is to relieve the covenantee from the necessity of showing that the judgment of eviction was upon a superior title.* </p> <p>5. In this case, the warrantor, before making the covenant sued upon, had executed a mortgage upon the premises, with a power of sale, under which the land was sold and a deed executed to the purchaser. This title the remote grantee purchased in for his own protection, and then sued upon the covenant. The warrantor had agreed to pay the mortgage, but did not, nor was it paid with his money: Notice to him, therefore, could have had no beneficial influence on his rights, and was unnecessary.</p> <p>6. Measube of damages—in am, action on a covenant of warranty. The measure of damages in an action on a covenant of warranty, where the plaintiff has purchased in an outstanding superior title, is the amount paid therefor, with interest.</p> <p>7. Parties—right of an intermediate holder to sue on covenant of warranty. Where a covenantee, or his grantee, conveys the land before abreach of the covenant has occurred, the last grantee becomes the assignee of the covenant and he alone can sue for a subsequent breach thereof.</p> <p>8. But if the last conveyance contained a covenant of warranty, and the grantor therein afterwards purchase in an outstanding superior title, that will satisfy his covenant to his grantee, and he will have his action against the first covenantor, there being no other person who could maintain it.</p> <p>9. Pleading—construed most strongly against the pleader. Where the. defendant in an action for a breach of covenant of warranty, pleaded that the plaintiff had conveyed the premises to another, -without averring that he conveyed by quitclaim, it will be intended, in the absence of such averment, and in favor of the plaintiff, that he conveyed by warranty.</p> <p>10. Same—carrying a demurrer to a plea hack to the declaration. After a demurrer to a declaration has been overruled and the general issue pleaded, a demurrer to a defective plea cannot be carried back to the declaration.</p> <p>11. So, where a general demurrer to a declaration in an action for a breach of a covenant of warranty, had been overruled, and all the material allegations traversed by the pleas of non est factum, and mora infregit conventionem, and special pleas, it was held, a demurrer to another plea could not be carried back to the declaration. A party can not plead in bar and demur at the same time to the same matter.</p> <p>13. Accoed and satisfaction—when availing. In an action by a remote grantee upon a covenant of warranty, a plea by the defendant of an accord and satisfaction by his immediate grantee with him, without averring that it was before the first grantee had parted with his title to the plaintiff, and that the latter had notice of it before he purchased, is bad, as a release or a satisfaction by the first grantee after he had conveyed to the plaintiff, would be of no force.</p>

E. S. Williams, Judge, presiding. This was an action on the case, brought in the court below, by Bowles, against Bauman and Ellsworth. A trial resulted in a verdict and judgment for the plaintiff, from which the defendants appealed.

<p>Appeal from the Superior Court of Chicago; the Hon. William A. Portee, Judge, presiding.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

Sylvanus Wilcox, Judge, presiding. This was a suit in chancery commenced in the Circuit Court of McHenry county, by Cutter, as the administrator of William E. Thompson, deceased, to subject certain lands, located in Du Page county, of which he died seized, to the payment of his debts. The judge having been of counsel in the case, the venue was, by order of that court, changed to Du Page county.

<p>Amended injunction bond—when properly filed. The original injunction bond filed in a cause was insufficient, and a motion was made to dissolve the injunction on that ground; thereupon the complainant moved for leave to file an amended bond, and an amended bond was filed: Held, that upon an order of the court refusing the motion to dissolve the injunction, the amended bond would be presumed to be properly upon the files, even in the absence of an order of court expressly granting leave for it to be filed; and in an action upon such bond, it could not be alleged against it, it was filed without leave of the court.</p>

<p>Appeal from the Circuit Court of DeKalb county; the Hon. Theodore D. Murphy, Judge, presiding.</p> <p>The opinion states the case.</p>

S. L. Richmond, Judge, presiding. This was an action of trespass, for an assault and false imprisonment, brought in the court below by Andrew J. Kindred against Stitt, Blair and Towers. It appears from the evidence that prior to the 5th of Octotober, 1861, several burglaries, and other crimes, had been committed in Woodford county, in this State, and that the plaintiff, Kindred, was suspected of being one of the guilty parties.

Eeastus S. Williams, Judge, presiding. The question presented in this case arises on this state of facts : Honoré, the appellant, having executed his note to Butter, Endicott & Whitehouse, for $2,146.50, deposited with them, as collateral security, seventy-four barrels of whisky. They effected an insurance on the whisky, at their own expense, in their own name, and without the authority or knowledge of Honoré.

<p>1. Notice—of sale under power in a mortgage—its requisites. Where the advertisement or notice of a sale of real estate under a power of sale contained in a mortgage, describes a different and other or larger indebtedness than that described in or secured by the mortgage, the sale will not thereby be vitiated so as to entitle the mortgagor to redeem, it not being shown that the property was injuriously affected by it, or bidders deterred thereby from attending the sale, or that it was so published for a fraudulent purpose.</p> <p>2. Assignment—power of sale in a mortgage. It has been held that where a mortgage gives to the mortgagee, or his assigns, power to sell upon default in payment, an assignment of the note secured by the mortgage, will vest the power of sale in the assignee—the power thereby passes from the mortgagee, and cannot be executed by him.</p> <p>3. But the mere assignment of the mortgage by an endorsement thereon, without an assignment of the note, the mortgage not being an assignable instrument by endorsement, either by the common law or under the statute, will not operate to pass the power of sale to the assignee, but it will still remain in the mortgagee.</p> <p>4. Purchasers—how fa/r chargeable with notice of irregularities. The original purchaser at a sale by a mortgagee, under a power of sale contained in the mortgage, is chargeable with notice of defects and irregularities attending the sale, and cannot evade their effect.</p> <p>5. But with remote purchasers the rule is different; all matters in pais, affecting the sale, it not being void but only voidable, must be brought home to their knowledge, on a proper case made, sustained by proof.</p> <p>6. Lapse of time—its effect upon, vrregulat'ities in sale by mortgagee. A mortgagor should avail himself in apt time of irregularities in a sale of the premises by the mortgagee under a power in the mortgage. So a delay of four years after the mortgagor had knowledge of the sale, and proceedings under it, was held to preclude him from maintaining a bill to redeem, as against remote purchasers, on the alleged ground of a defective notice of the sale and inadequacy of price.</p>

<p>1. Mechanics’ Lien—house-painters. House-painters are within the protection of the mechanics’ lien law, which secures a lien to persons who “ furnish labor or materials for erecting or repairing ” a building.</p> <p>2. Contracts—notice. Where a mechanic agrees to do a job of work at a stated price, upon the representation of the person for whom the work is to be done as to the amount and character of the work required, and the mechanic, upon seeing what is actually to be done, discovers the job to be of a different and more expensive character than represented, the question would arise whether he should not notify the other party of that fact before proceeding with the labor; but if the mechanic did not personally examine into the character of the work to be done, and sent his men to execute it, he being absent at a distance from the time the agreement was made, the want of such notice would not prejudice his right to recover the actual value of the work done in excess of the price agreed upon.</p>

Writ of Error to the Circuit Court of Lake county ; the Hon. E. S. Williams, Judge, presiding. This was a suit in chancery instituted in the court below by Waterman against Spaulding and others, to set aside a sale under a deed of trust. Upon the hearing, the circuit court denied the relief sought, and dismissed the bill. Waterman thereupon sued out this writ of error. The facts are sufficiently set forth in the opinion of the court.

<p>Appeal from the Circuit Court of Peoria county; the Hon. S. D. Puterbaugke, Judge, presiding.</p> <p>The opinion states the case.</p>

S. D. Putebbattgh, Judge, presiding. On the 19th day of January, 1856, Warren Hall and Ash-hell Hurlburt, being the owners of lots three, four and five, in block eight, in the city of Peoria, on which the Peoria House is situated, executed a mortgage thereon to Augustus O. Garrett, to secure the payment of a number of promissory notes, amounting in the aggregate to $30,000.

John A. Jameson, Judge, presiding. This was a suit in chancery commenced in the court below by Ralph Cheney against Buckner S. Morris, administrator, and Emily M. 1STorton, administratrix, of the estate of Lewis W. Clark, deceased, and Azel Dorathy, to determine the right, as between the complainant, Cheney, and the defendant Dorathy, to a claim against the estate of Clark.

Edwin S. Leland, Judge, presiding. This was a suit in chancery instituted in the court below, by Bernard if. Lantry against Thomas Lantry and John Twohey, to enforce an alleged parol trust. The circumstances attending the conveyance out of which the controversy arises are set forth in the opinion of the court. The court below entered a decree declaring the existence of the trust, and enforcing its execution. The defendants thereupon took this appeal.

Joseph E. Gary, Judge, presiding. This was an action of trespass brought in the court below by William H. Warren against Charles B. Farwell and Dennis Curran. A trial resulted in a verdict for the plaintiff for $6,691.66, and judgment accordingly, from which the defendants appealed.

<p>1. Gaming—what constitutes. Betting on a horse race is gaming, within the meaning of our statute which provides for recovering back money lost in gaming.</p> <p>3. Measure of damages—in action to recover back money lost in gaming. Where parties betting upon a horse race, put the money in the hands of a stakeholder, who paid it over, a part to the winner and the residue to a third person, by direction of the winner, the losing party may recover the whole amount put up and lost by him, from the party with whom the bet was made and to whom he lost the money.</p>

<p>Appeal from the Court of Common Pleas of the City of Elgin ; the Hon. Bichard Gr. Montony, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. G-ary, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>1. Parol evidence—to vary the terms of a warehouse receipt. A warehouse receipt given by a warehouseman for grain received in store, is the contract of the parties, and parol evidence is not admissible to vary its terms.</p> <p>2. Remedy—against a warehouseman for failing to deliver grain’ on a warehouse receipt. Where a warehouseman receives grain in store, and gives his receipt therefor, providing for a delivery of the grain on the order of the owner, while an action of trover might lie against the warehouseman on his refusal to deliver the grain on demand, yet assumpsit will also lie, -for the breach of the contract. The rule that a party can not waive the' tort and declare in assumpsit for money had and received unless money has actually been received, has no application in such a case.</p> <p>3. Measure of damages—-for non-delivery of grain by a warehousemmi. In assumpsit against a warehouseman for a refusal to deliver grain placed in store, on demand, according to his contract, the measure of damages is the value of the grain at the time it should have been delivered.</p> <p>4. Warehousemen—non-payment of storage. Where grain is stored in a warehouse, to be kept for a short time without charge, and to be delivered to the owner when demanded, the neglect of the owner to pay storage after such time, or to offer to do so, will not defeat his action against the warehouseman for a breach of the contract of the latter to deliver the grain on demand. The most the warehouseman could claim would be a reasonable deduction for storage after having given notice that storage would be charged.</p>

Weit op Eee'oe to the Circuit Court of Livingston county; the Hon. H. B. Deoius, Judge, presiding. The opinion of ihe court contains a sufficient statement of the case.

<p>1. Usury—what constitutes, under act of 1857. Under the interest law of 1857, a promissory note bearing twelve per cent, interest per annum, is usurious. That act prohibits the taking of any greater rate than ten per cent per annum, upon any kind of contract or for any species of consideration.</p> <p>2. Former decision. Such a case is not controlled by that of McGill v. Ware, 4 Scam. 21, in which it was held, that the taking of a legal rate of interest in advance, -by deducting it from the sum loaned, was not usurious. But that case was decided upon the authority of cases in other courts upon statutes that declared a forfeiture of the whole debt, for usury, and in this State, at that time, there was a forfeiture of three-fold the usury reserved; and it is doubted whether such a rule would have obtained had the forfeiture been no more than the interest.</p> <p>8. Usury—how mailed of. The statute against usury may be availed of under the general issue, where the fact of usury appears from the contract .and the declaration.</p> <p>4. Assignee befos'ematurity—when subject to the defense of usury. Where an assignee before maturity receives a promissory note which discloses upon its face the fact that usurious interest is reserved, he is bound to take notice thereof, and will hold the note subject to that defense.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought in the court below, by Heeney and Campbell against Schuyler S. Benjamin and John J. Pearce. There was service upon Benjamin alone, who pleaded the general issue. The cause was tried before the court without a jury.

<p>Appeal from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

<p>Wbit of Ebbob to the Oircu.it Court of Woodford county; the Hon. S. L. [Richmond, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>The opinion states the case.</p>

Daniel B. James, Judge, presiding. This was an action of assumpsit brought in the court below by Eobert Margarel against Eliza A. Whiteside, to recover for work and labor alleged to have been done by the plaintiff, in the breaking of a quantity of land on a farm owned by the defendant, under a contract made with Thomas Whiteside as the agent of the defendant.

John A. Jameson, Judge, presiding. This was an action of assumpsit brought in the court below by Cushman against Carver & Co., a trial of which resulted in a finding and judgment in favor of the defendants. The plaintiff appeals. The circumstances out of which the controversy arose are set forth in the opinion of the court.

George W. Pleasants, Judge, presiding. This was a bill in chancery exhibited in the court below by Speede M. Gilbert, against Hazro Reynolds and others, for an assignment of dower in certain lands, of which the complainant claims her husband died seized.

<p>1. Practice—waiting for counsel to appear to try a cause. The matter of delaying the trial of a cause for counsel to appear, is analogous to an application to set aside a default, and in such cases it is not the practice of appellate courts to interfere, except where the court below is chargeable with an abuse of its discretion.</p> <p>2. In this case, one of defendant’s attorneys was in court waiting the call of the case, and shortly before it was reached, went out to notify one of Ms co-partners, who expected to take charge of the trial. The case was reached sooner than the counsel expected, and the court, having been notified by the counsel who had been in attendance that he was going for Ms associate, waited from fifteen to twenty minutes after calling the case for counsel to appear. No one appearing for the defendant, the court caused a jury to be impannelled, and the plaintiff made Ms proof and obtained a verdict. Immediately after the verdict was returned and judgment entered, the defendant’s counsel entered the court room, and asked to have the proceedings set aside. This was refused, and counsel then made a formal motion to that effect, stating that the defendant had a good defense, but the motion was overruled. After the senior counsel had been notified by his associate that the case was about to be called, he waited ten or fifteen minutes in his office, not supposing that the call was so near at hand. The refusal of the court below to open the case, under the circumstances, was not such an abuse of discretion as to call for a reversal.</p>

S. L. Richmond, Judge, presiding. This was an action of assumpsit, brought in the court below, by Hartley, against H. & E. Ives, to recover the value of a quantity of wheat stored with the defendant, and not returned or accounted for. It appears the defendants owned a warehouse, which was used by them in connection with their mill, for the purpose of storing grain purchased by them to be manufactured into flour.

<p>Appeal from the Circuit Court of Lee county; the Hon. William W. Heaton, Judge, presiding.</p> <p>The opinion states the case.</p>

William A. Portee, Judge, presiding. This was an action of trover, brought in the court below by Emma E. De Puie, against James W. Hippie, executor of Gideon L. Becker, deceased. It appears that the plaintiff, in the year 1866, was carrying on the business of the manufacture of wheelbarrows, in the city of Chicago, in premises owned by Becker, the testator, and which she was occupying as his tenant.

This cause was argued, originally, at the September term, 1869, of this court, when the decree of the court below was affirmed. The case is reported in this volume, page 166. At the September term, 1870, the appellant applied for a rehearing, which was allowed, and thereupon the following additional opinion was delivered:

This case was originally argued and determined at the September term, 1869, and is reported in this volume, page 390. At the September term, 1870, an application for a rehearing was made on behalf of the appellant, asking the court to review their former decision upon the question as to the power of an administrator to seek to have clouds removed from the title of lands belonging to the estate, with the view of obtaining a better price for them on a sale to pay debts.