Volume 53 — Illinois Reports

Charles Turner, Judge, presiding. In this case, the-question presented is, whether the boundaries of land situated on a stream of water not navigable, extended to the centre thread of the stream or was limited to its bank.

<p>1. Nuisance—of the use of one’s own property, as between adjacent proprietors. In an action on the case, it appeared the defendant had erected and was operating a flouring mill upon a lot adjacent to the plaintiff’s dwelling house, whereby, as plaintiff claimed, large quantities of chaff, dust, smut and dirt were thrown into and upon his house, rendering it uncomfortable as a habitation: Held,, the plaintiff had a right of action, and was entitled, to damages in proportion to the degree of the injury.</p> <p>2. In such case, the right of action does not depend upon the degree of the injury. If it exist at all, it exists as well for a slight as for a great injury.</p> <p>3. Still the injury must be something more than a fanciful inconvenience, a question of mere delicacy or fastidiousness, arising from elegant and dainty habits of life; it must be a clear and plain interference with ordinary comforts or enjoyments.</p> <p>4. Even if a business be lawful in itself, and is carried on with reasonable diligence to prevent it becoming an injury to others, still the proprietor will be held responsible in damages to one who does receive injury therefrom, as, in rendering his dwelling uncomfortable as a habitation.</p> <p>5. Evidence—where vindictive damages arre dawned. So, it would be incompetent in such case for the defendant to prove that the machinery used in the business was good, and the business was properly managed, except where the plaintiff claimed vindictive damages, on the ground of gross carelessness or wanton injury. Such evidence could not be received to show defendant was not liable to damages at all.</p> <p>6. Same—as to use of other property of the plaintiff. Nor would it be competent in such case, where the action was for an injury to a particular house of the plaintiff, for the defendant to prove that another house in the same neighborhood, owned and rented by the plaintiff, was a disreputable house. Such evidence would be wholly foreign to the issue.</p>

<p>1. Pleading—traversing the several breaches assigned in an action of covenant. Each assignment of breach in an action of covenant is regarded as a separate declaration, and may be severally traversed. The plea being as broad as the declaration, and responsive to it, is not demurrable.</p> <p>2. Same—in covenant on a lease, brought by the lessor. In an action of covenant on a lease brought by the lessor, among other breaches, it was alleged there was due and unpaid a certain sum as rent for a specified portion of the term, and that after the lessee had entered, the premises became greatly ruinous, the windows broken and destroyed, the locks and plastering torn off and the premises greatly injured. The defendant traversed these two breaches as follows: First, there was no rent due and unpaid at the time, &c., concluding to the country: Second, that the premises did not become ruinous, &c., concluding to the country: Mdd, that the traverses were good, each breach being separately traversable.</p> <p>3. Compromise—acceptance necessary. In the same action, the defendant pleaded to the- whole declaration, setting up that the parties, having divers disputes concerning the subject matter of the suit, as a compromise and settlement thereof, before suit brought, agreed the lease should be surrendered and annulled, and the same was surrendered and canceled, and the possession given to the plaintiff: Meld, the plea was bad, because it did not aver the plaintiff accepted the possession.</p> <p>4. Recoupment—when allowable—whether damages arre remete. A claim originating in contract may be set off against one founded in tort, if the counter claims arise out of the same subject matter on which the suit on the contract is brought, and are susceptible of adjustment in one action.</p> <p>5. So, in an action of covenant on a lease, brought by the lessor, alleging divers breaches, the defendant pleaded that the premises were leased for hotel purposes; and to induce defendant to take them, the plaintiff falsely represented there was good and sufficient drainage under the ground to carry off the slops and waste water from the premises, and that the premises were in good, wholesome condition; that, relying on these representations, defendant, at great expense, moved into the premises, and had many guests, but, by reason-of inadequate drainage, the premises became in such had odor and condition, that his guests left the hotel, and he had sustained damage to the extent of $1000, which he offered to set off, &c.: Meld, the damages thus claimed were not remote, and could be recouped in the action, as they arose out of the transaction.</p> <p>6. Plea oe rescission of a lease—as to time of rescission. In the same action, a plea alleging that the lessee rescinded the contract when he discovered the falsity of the lessor’s representations in regard to the premises, and returned the latter to the possession, which he accepted, was bad, because it did not allege at what time the defendant rescinded, non constat, but the defendant occupied the premises until hear the end of the term, and should pay the rent, which had accrued and was sued for, notwithstanding the rescission.</p>

Writ or Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Chief Justice, presiding. This was a suit in ejectment, brought by the plaintiff, Thomas O’Neal, for the recovery of certain real estate in the city of Chicago, claimed by the defendant, Levi D.. Boone, under color of title and payment of taxes.

<p>1. Streets in Chicago—of their use for purposes of building—power of the. Board of Public Works. Under the charter of the city of Chicago, the Board of Public Works are not bound, nor have they the authority, to grant permits to individuals to occupy the streets with building material, and to make excavations in sidewalks for building- purposes, except as that subject-may be regulated by ordinance.</p> <p>2. Under an ordinance of the city, which was continued in force by the charter of 1868, the Board of Public Works have the power to require of a party, who proposes to use and occupy the sidewalk and street for the purpose of depositing building material, and for excavating for the purpose of1 building, the execution of a bond to indemnify the city against any loss which may accrue by the recovery of damages for injuries resulting from the street or sidewalk being out of repairlby reason of such use thereof. .</p> <p>3. Pleading and BviDBNCB-TDíiríízwee, - In averring the breach of the</p> <p>cbndition of a bond sued upon, the same strictness is not required as in set: ting out the bond on which the action is founded; but the averment of thé manner in which the breach occurred should be reasonably specific—enough so to fully apprise the defendant of what is relied upon as the breach, though every particular need not be -stated. '</p> <p>4 So, where a party, on obtaining a permit from the Board of Public Works of the city of Chicago, to make use of a portion of one of the streets bf the city for depositing building materials, etc. gave a bond, conditioned for indemnifying the city against any judgment for damages.resulting from such use of the street or sidewalk, a person fell into a pit excavated in the sidewalk by the' principal obligor in the bond, and recovered a judgment for injuries thereby received, against the City, in an actioq by the city ori the bond, it was averred that the judgment against the plaintiff was recova ered in consequence of the excavation made in the street at the place described in the permit, whereas by the record of the judgment it appeared the declaration in that suit averred it was in consequence of the excavation, and a failure of the city to'maintain lights in the night at the place where the accident occurred: Held, there was no variance in respect to the alleged: breach of the condition of the bond. . . , .</p>

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

<p>1. Fobfeitube of contbact—in what manner it may be declared. Where a vendor of land has a right, by the terms of the contract, to declare a forfeiture in case the purchaser fails to comply on his part, where he holds no securities of a negotiable character, he has only clearly to manifest an intention to end the contract, and, by selling the property to another, he does, in the most unequivocal manner, make his declaration of forfeiture.</p> <p>2. Specific performance—when granted. A purchaser of land will not be entitled to a decree for a specific performance, unless he shows a performance on his part of all the conditions precedent to his right to demand a conveyance.</p> <p>3. Notice—by possession. Where a purchaser of land is in possession, such possession will operate as constructive notice to a subsequent purchaser from the same vendor, of the right of the party in possession.</p>

Wbit of Ebbob to the Superior Court of Chicago. This was a bill in chancery against the Fifth National Bank of Chicago and Hugh Lewis, to remove a cloud upon the title of Flora Tompkins to a certain lot in the city of Chicago. The record shows that September 4,.1866, she purchased the lot of one Henry Deverill, who conveyed to her by warranty deed, she assuming the payment of two certain mortgages to which the lot was then subject.

The opinion of the court contains a full statement of the case. The principal question arises in respect to a claim on the part of the appellees, of the right to redeem from a sale of realty under an execution at law, after the statutory time for redemption had expired.

<p>Special assessment—¿for work not done. Upon a special assessment for grading, paving and curbing a street, it appeared that the curbing had been done some years previously, and was adopted by the city in making this improvement, no new curbing having been made: Held,, the city could not collect an assessment for work it never performed.</p>

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

William A. Postee, Judge, presiding. This was an action of assumpsit, brought in the court below by Stuart and Gray, for the use of McKickaw, against the city of Chicago, to recover for work and labor done by the plaintiffs, for the city, in the filling, grading, curbing and paving of a portion of Wabash avenue.

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

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

William A. Portee, Judge, presiding. - Charles Johnson brought an action on the case, in the court below, against the city of Chicago, alleging in his declaration that in August, 1867, the defendant, while repairing Milwaukee Avenue, one of the streets in said city, caused a deep ditch to be dug on the east side of said avenue, and left the same in the night time, without light, guards or barricades, and that the plaintiff, while driving along said avenue on the evening of…

Joseph E. Gary, Judge, presiding. This was an application for a judgment on a special assessment for opening or extending a certain street in the city of Chicago. An objection was taken to the notice which was given of the application to the common council to confirm the assessment. The ground of objection is stated in the opinion of the court.

<p>1. Covenant against incumbbances—its effect on the right to compel the payment of purchase money. Where a vendor of real estate agrees to remove all existing incumbrances upon the premises, a failure to remove them will constitute a defense in equity against the notes given for the purchase money, to the extent of the incumbrance; and such defense will be good, even against an assignee of the notes, before maturity, he having notice thereof when he received them.</p> <p>2. Judoment lien—its duration—whether continued in existence by the levy of an execution. Under our statute, where an execution is issued upon a judgment within a year, the judgment will continue to be a lien upon real estate, as against subsequent purchasers, for a period of seven years after the last day of the term at which it was rendered, and no longer; and a pending levy of an execution issued on the judgment, made during the existence of the lien, will not operate to continue the lien of the judgment beyond the statutory period of seven years.</p> <p>3. Same—effect of the levy. The levy of an execution upon land has no force in the creation of a lien, except in the single instance, where the execution is issued to a foreign county, and the certificate of levy is recorded as required by statute; with that exception, the lien, if any exists, is that of the judgment.</p> <p>4. Redemption—by a junior judgment creditor. Where a levy upon land is pending at the time of the expiration of the lien of the judgment under which the levy was made, whatever right of redemption may have existed in a junior judgment creditor by virtue of such levy, such right of redemption would cease to exist with the lien of the elder judgment.</p>

<p>Writ of Error to the County Court of Cook county.</p>

Charles D. Hodges, Judge, presiding. This was an action on the case, brought by Sylvester J. Fears against the Chicago & Alton Bailroad company to recover for injuries resulting to the person and property of the plaintiff, by the alleged negligence of the defendants. The jury returned a verdict for the plaintiff, upon which judgment was entered, and to reverse said judgment defendants appeal ■ to this court.

<p>Appeal from, the Circuit Court of Sangamon county; the Hon. Benjamin S. Edwabds, Judge, presiding.</p>

Writ op error to the Circuit Court of Greene county; the Hon. Charles D. Hodges, Judge, presiding. This was an action of ejectment, brought by Anthony S. Seely and Hiram Parr, against Samuel Wells, to obtain possession of a certain' tract of land in Greene county.

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

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

<p>Writ of Error to the Circuit Court of Champaign county; the Hon. A. J. Gallagher, Judge, presiding.</p>

<p>Marked 'women—conveyance of land, during minority. The statute authorizes a married woman to convey her land only when she has attained the age of eighteen years, and if she executes -a conveyance before attaining that age, though her husband join therein, the deed will be void.</p>

<p>1. Tax—/or building bridges—what number of supervisors necessary to levy the same. Less than a majority of the whole number of the board of supervisors in a county, can not appropriate funds to aid in the construction of bridges. Nor can less than a majority levy a tax for that purpose.</p> <p>2. So an order of less than a majority of the whole number of supervisors in Cumberland county, making a levy for the purpose of building a bridge, under the act of the nineteenth of February, 1867, authorizing the board of supervisors of Cumberland county to levy and collect a special tax for the purpose of building bridges, was unauthorized and void.</p> <p>3. Injunction to restrain the collection of a torn. Where less than a majority of a board of supervisors of a county have undertaken to levy a tax for bridge purposes, equity will interpose to restrain its collection, as being levied without legal authority.</p>

Wbit of Eebob to the Circuit Court of Fulton county; the Hon. Chauncey L. Higbee, Judge, presiding. This was an action of forcible entry and detainer, brought by Abraham Herh against Thomas Pearson. The tract of land, upon which the wrongful entry is alleged to have been made, was woodland, unimproved and uninclosed.

Joseph Gillespie, Judge, presiding. This was an action of assumpsit, brought in the court below, by Pantali Fix, for the use of Henry F. Mayer, to recover upon a policy of insurance, issued by the Illinois Mutual Fire Insurance Company. The insurance was upon a dwelling house and brewery attached, two thousand two hundred dollars, and upon fixtures in brewery and cellar, eight hundred dollars, total three thousand dollars.

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

Writ op eeeoe to the Circuit Court of Champaign county; the Hon. A. J. Gallagher, Judge, presiding. This was an action of assumpsit, commenced by attachment, in the court below, by Frederick George & Son, against Jane Sterritt, upon an open account, for goods sold and delivered. Certain proceedings were had against Benjamin H. Towner and William Towner, as garnishees, which they allege were erroneous, and which are fully set forth in the opinion of the court.

J. McBoberts, Judge, presiding. Sherwood, holding a bond, secured by a mortgage, against Small, on the twenty-first of February, 1862, instituted a suit in the supreme court of Mew York to foreclose the mortgage. Pending the suit, Small died, and his representatives were made parties.

<p>Appeal from the Circuit Court of Jackson county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

<p>1. Administrator—of his powers respecting incumbrances upon lands sought to be sold to pay debts. The statute gives an administrator no power to engage in litigation to remove clouds upon the title to lands belonging to the estate, and a bill filed by him for that purpose, is obnoxious to a general demurrer.</p> <p>2. But where a bill, filed by an administrator for such purpose, was fully answered, and an issue made up thereon, and a cross bill filed and fully answered, and an issue made up, and tried on testimony taken, the cause was held to have been properly heard on the merits.</p> <p>3. Judgment lien—of Us duration. Under our statute, if a judgment creditor takes out an execution within one year from the rendition of his judgment, the judgment will be a lien on his debtor’s land for the period of seven years from the last day of the term of the court in which the same is rendered ; after this period, it ceases to be a lien as against bona fide purchasers, or subsequent incumbrancers by mortgage, judgment or otherwise.</p> <p>4 So, whether an execution may be legally issued or not, after the lapse of seven years, and be levied upon the debtor’s property, it cannot operate to revive the lien of the judgment, if issued after that time, so as to subject property in the hands of those third persons-named in the statute.</p> <p>5. Same—-who will be considered subsequent incumbrancers, within the statute. A judgment was obtained against a party who had previously purchased, with his own money, a lot of ground, which was conveyed to a member of his family. The grantee contracted debts after having become invested with the legal title to the lot, and afterwards died. It was held, that the creditors of the grantee were subsequent incumbrancers, within the meaning of the statute, and as to them, the judgment ceased to be a lien upon the lot after the lapse of seven years, even if it had been a lien before the expiration of that time.</p> <p>6. Voluntary conveyance—whether fraudulent as to creditors. "Where a debtor has property more than sufficient to pay his debts, he has a right to provide a home for his wife and children, leaving property sufficient to satisfy his creditors, and if he procures a conveyance to be made to secure that end, it will not be deemed fraudulent as to creditors.</p>

Writ of Error to the Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding. This suit was commenced in the circuit court of Marshall county, and removed, on change of venue, into the circuit court of McLean county. The opinion of the court contains a sufficient statement of the case.

Benjamin S. Edwards, Judge, presiding. This was an action of forcible detainer, commenced by Samuel Haines against Shadrack Wilburn, to recover possession of land sold by Haines to Wilburn. Wilburn paid in hand five hundred dollars to Haines, and executed two notes for the balance, of nine hundred and fifty dollars each, with interest, due in one and two years.

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

<p>1. Injunctio'S—judgment improperly, changed. Where a judgment was obtained and execution issued, and was levied on property sufficient to satisfy the debt, but was returned by order of the plaintiff, and subsequently the record was fraudulently changed and the amount of the judgment increased, without, consent of the judgment debtor, and a second execution issued thereon: Held, a court of equity had jurisdiction to interpose by injunction, to prevent its collection, and relieve against the fraud.</p> <p>2. But had the only relief sought been to quash the execution and set aside the levy, the remedy would have been by motion, when an order could have been obtained by applying to the judge at chambers, staying the proceedings until the hearing of the motion. But the relief sought, going to the judgment itself, and to relieve against a fraud, the remedy could be pursued in chancery.</p> <p>3. Jurisdiction in chancery—remedy at law, by statute. Even though a court of law may have the power, under the statute, to correct a judgment which has been fraudulently changed by increasing the amount foi; which it was rendered, it not being clear, however, that such power exists, still that would not oust a court of equity of its jurisdiction. Fraud is a matter of chancery jurisdiction, and that court would not lose it merely by the statute conferring a similar jurisdiction upon courts of law.</p> <p>4. Execution—prior levy pending. A levy upon property is only prima facie evidence of a satisfaction of the judgment, yet, while a prior levy remains undisposed of, it is irregular to issue an ordinary fl.fa. The process should be a venditioni exponas, with a Ji. fa. clause if desired.</p>

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

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

<p>1. Baggage—when liability of carrrie/r ceases and that of warrehouseman attaches. Where the baggage of a passenger is placed in charge of the carrier, and upon arriving at his place of destination the passenger leaves it in charge of the carrier, the duty and liability of the carrier, as such, will not be changed to that of warehouseman, until the baggage is stored in a safe and secure warehouse. If the baggage be'placed in an insecure room, and is stolen, the carrier will be held responsible in that capacity, not as warehouseman. The same rule applies, in this regard, to the carrying of baggage, as in case of ordinary freight.</p> <p>2. Burden of proof—in such case. In an action against the carrier for the loss of baggage which had been stolen from the place where it had been deposited by the carrier, at the place of destination, if the latter seeks to avoid liability as a carrier, and place his defense on the ground that he is only liable as warehouseman, the burden of proof is upon him to show the baggage was stored in a safe and secure warehouse.</p>

Writ of Error to the Circuit Court of Piatt county; the Hon. Charles Emerson, Judge, presiding. This was a suit in chancery, instituted in the court below by Wiggand and Hatch against the infant heirs at law and the administrators of Edward Williams, deceased, for the partition of certain real estate, in which the complainants claim an undivided interest.

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

<p>Pleading—certainty as to identity of the person, in a plea of former recovery. In an action of debt on a recognizance, the defendant interposed a plea of former recovery, in which it was averred that the people “impleaded the said defendant in a certain plea of scire facias, in the words and figures following,” setting out the writ at length, by which it appeared the defendant was named and impleaded with a certain other person, who was his co-obligor in the recognizance: Held, it appeared with sufficient certainty in the plea, that the defendant was the same person who was impleaded in the scire facias.</p>

Writ op Error to the Circuit Court of Sangamon county; the Hon. Benjamin S. Edwards, Judge, presiding. This was an action of trover, brought at the regular term of the county court of Sangamon county, in March, 1868, by Sexton E. Smith against Elizabeth Archer, administratrix of the estate of William Archer, deceased, to recover the value of corn belonging to the plaintiff, destroyed by the cattle of deceased, in his life time.

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

<p>1. Security for costs—-for what costs he is liable. Where a person executes a bond for costs, in behalf of the plaintiff in a cause, in the form prescribed in the statute, it seems he will be liable, not only for the defendant’s costs, and such as may accrue to the officers of the court, but for all the costs which may be made in the case, without reference to the person ' to whom they may accrue.</p> <p>% Same—of the mode of collecting the costs from the security. Under the twenty-fourth section of the cost act, a fee bill and execution for costs may issue against the security for costs, without a judgment having been rendered against him, where the plaintiff fails to recover.</p> <p>3. Constitutionality of that act. Nor is that section of the statute, in that regard, in violation of any provision of the constitution.</p> <p>4. Right of trial by jury—construction of the constitution. Under a reasonable construction of those clauses of the constitution which declare that “ the right of trial by jury shall remain inviolate, and shall extend to all cases at law,” and that “ no freeman shall be deprived of his property but by the judgment of his peers,” a party shall be entitled to a jury in all cases in which it was authorized at the time of the adoption of the organic# law.</p> <p>5. The constitution does not give the right of trial by jury to a security for costs who executes a bond therefor in conformity to the cost act, but he may be compelled to pay them, without even a formal judgment against him, in case the plaintiff fails to recQver.</p>

<p>1. Submission to arbitration—effect thereof upon pending suit. In a suit in chancery, a reference was made to the master, and pending such reference, the parties mutually agreed to submit the matters in difference to three persons as arbitrators, upon whose award the court should have power to enter a decree. The arbitrators made their award, that the bill should be dismissed. At the next term of the court, an order was entered discontinuing the suit,4for the reason that the matters in dispute had been submitted to arbitration. This was proper. The submission of the pending suit operated as a discontinuance thereof.</p> <p>2. Same—questioning the validity of the award. The validity of the award could not be questioned in that suit, because, by the fact of submission, the cause was out of court. But the dismissal of the suit did not determine the validity of the award. That was still open to attack, and might be shown, in a proper action, not to be binding, and therefore no bar to another suit on the same cause of action.</p> <p>3. Bill of exceptions—when necessary. In case of the discontinuance of a cause upon the ground that the parties had submitted the matters in dispute to arbitration, if it is desired to question the fact of submission, the evidence in respect thereto should be preserved in a bill of exceptions. In the absence of proof to the contrary, it will be presumed the court below decided correctly, that there was a submission.</p>

Charles Turner, Judge, presiding. This was a suit in chancery, instituted in the court below by Mary Benjamin against Lemuel Parker, to compel the execution of a deed of conveyance by the defendant, for a tract of land which the complainant had purchased. The circumstances were these: It appears that Parker owned two forty-acre tracts of land, adjoining each other, upon one of which was a lake or pond.

<p>Writ op Error to the Common Pleas Court of the city of Mattoon; the Hon. William W. Craddock, Judge, presiding.</p>

<p>Jurisdiction in chancery—remedy at law—as between cosureties. The principal maker of a note placed an indemnity in the hands of one of his sureties, and the latter assumed to pay the note, and, after having paid it in part, procured a third person to purchase the note for his benefit. The assignee sued upon it in his own name, and recovered a judgment thereon against the surety, for whose benefit the note had been bought, and another, his co-surety, and execution was levied upon the property of the latter: Held, it was inequitable to compel the surety, whose property was levied on, to pay the debt for the benefit of his co-surety, in whose hands the principal maker had placed funds to pay it, and a court of chancery would interpose to restrain its collection. The remedy was not at law.</p>

• Appeal from the Circuit Court of Morgan county; the Hon. Charles- D. Hodges, Judge, presiding. This was an appeal from the county court of Morgan county, to the circuit court, involving a question in regard to the character and amount of the special dower for the widow of Jacob. Strawn, deceased.

Arthur J. Gallagher, Judge, presiding. This was an action of ejectment, brought by Reuben H. Merriwether against John Fetrow, to recover a certain eighty acre tract of land. The plaintiff, on the trial, deduced title to the land from the general government to himself, and on his chain of title no question is raised. The defendant, to defeat a recovery, attempted to set up a paramount outstanding title.

<p>1. Bill of review—to what extent and under what circumstances errors may be corrected. Upon a petition to enforce a mechanic’s lien, to which prior incumbrancers by mortgage were made parties, the decree found the value of the premises before the erection of the improvements, and their value with the improvements, for the making of which the mechanic’s lien accrued, and then declared the rule of distribution, so that the prior mortgagees should first be paid out of the proceeds of a sale of the premises, to the extent of their value without the improvements, and upon a sale being made, the proceeds thereof were distributed according to the rule thus declared. Upon bill of review, afterwards filed by those claiming the mechanic’s lien, alleging there was error in that decree in regard to the rule of distribution, it was held, even though there was error in that respect, it could not, equitably, be corrected upon bill of review, so as to compel the prior incumbrancers to refund any portion of what they had received, because, the sale under the decree being allowed to stand, they would have no opportunity, under a different rule of distribution limiting their proportion of the proceeds of the sale, to protect their interests by making the property bring a higher price. The only equitable mode of correcting such error in the original decree, if one existed, would be to set aside the sale and order a re-sale.</p> <p>2. Mechanic’s lien—of the rule of adjustment as respects prior incumbrancers. The rule of distribution, however, as between the prior incumbrancers by mortgage and those holding the mechanics’ liens, declared in the original decree, was correct, being in conformity to the rule announced in Oroskey v. Northwestern Manufaa. Co. 48 Ill. 481.</p> <p>3. Purchaser at judicial side—how affected by a reversal. Where a purchaser at a judicial sale is a stranger to the record, he is not chargeable with any error which may be supposed to exist in the decree under which he purchased.</p>

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

Chaunoey L. Higbee, Judge, presiding. The facts of this case will be found set forth in the opinion of the court in the preceding case of Dolton v. Erb et al.

Writ of Error to to the Circuit Court of Edgar county; the Hon. James Steele, Judge, presiding. This was a bill in chancery, filed by William W. Hanks against Aden Baber, for a settlement of the accounts of a co-partnership previously formed between them, for the purpose of buying and selling a lot of cattle. Upon the hearing, the court below dismissed the bill, and to reverse this decree, the complainant brings the record to this court.

Writ of Error to the Superior Court of Chicago; the Hon. William A. Porter, Judge, presiding. This was an indictment against Carl Gresur, alias Carlo Greschia, for the murder of Stephania Lagarmarsen. The circumstances under which the homicide was committed, are set forth in the opinion of the court. On behalf of the prosecution, the court instructed the jury as follows: 1.

<p>1. Taxation for corfprate purposes—by whom the power may be exercised—constitutionality of the act of 1867, “to establish a police for the city of Bast St. Louis.” That act provides for the appointment by the governor, with the consent of the senate, of three commissioners, who were to control the police department of the city, and in case of a failure of the city council to appropriate money according to their annual estimate of the amount required, the commissioners were given the unlimited power to issue certificates of indebtedness in the name of the city, which should be receivable in payment of city taxes, and by an amendatory act, these certificates are made convertible into city bonds on demand of the holder: Held, this act is in violation of the fifth section of the ninth article of the constitution of 1848, authorizing the legislature to give the corporate authorities of cities and towns the right of taxation for corporate purposes.</p> <p>3. That clause of the constitution is a limitation upon the power of the legislature to grant the right of corporate or local taxation to any other persons than the corporate or local authorities.</p> <p>3. Same—who are “ corporate authorities'” By corporate authorities, as used in this clause of the constitution, must be understood those municipal officers who are either directly elected by the people of the municipality, or appointed in some mode to which they have given'their assent.</p> <p>4. These police commissioners are not corporate authorities of the city over whose police affairs they are, by the act creating them, given the control, because by that act they are forced upon the people of the municipality, without reference to their wishes or consent.</p> <p>5. Same—power to create a debt against the city. While the act creating these commissioners does not, in terms, give them the right to impose a direct tax, yet it does give them the power to create a debt against the city; and the power to impose a tax and create a debt to be discharged by the levy of a tax, are substantially the same thing.</p> <p>6. Same—power of the legislature to levy a local tax. The doctrine in reference to the possible existence of cases in which the legislature would be authorized to levy a local tax without the consent of the corporate authorities, has no application in a case where it is attempted to confer a discretionary power of taxation upon persons other than the corporate authorities.</p> <p>7. Parties in chancery—to restrain an illegal issue of city indebtedness. Where the legislature have attempted in violation of the constitution, to confer upon persons other than the corporate authorities of a city, the power to create a debt against the city, an individual taxpayer therein can not maintain a bill to restrain the exercise of such power. His position is not like that of a person upon whose property an illegal tax has been levied.</p> <p>8. It is possible, however, that the city might maintain such a bill, on the allegation that, although indebtedness thus created would not be binding upon it, the credit of the city might thereby be impaired, and, such indebtedness being made receivable for city taxes, interfere with the collection of its revenues, and expose it to the hazard of future litigation.</p>

A. J. Gallagher, Judge, presiding. This was an action of assumpsit, brought by Thomas M. Argall against Alexander Archibald and William Stevenson, partners, to recover for goods, wares and merchandise sold and delivered by the plaintiff to the defendants. A trial resulted in a verdict and judgment for the plaintiff, from which the defendant, Archibald, appealed. The opinion of the court contains a statement of the grounds upon which error is assigned.

Writ of Error to the Circuit Court of Adams county; the Hon. Joseph Sibley, Judge, presiding. This was an indictment for murder, charging Byron Leach and Montgomery Leach with the murder of Andrew F. Price. Upon the trial, Montgomery Leach was convicted of manslaughter, and sentenced to ten years’ imprisonment, and Byron Leach was acquitted.

<p>1. Appeals from highway commissioners to supervisors—of the form thereof. It is not essential that the paper intended as an appeal from au order of the commissioners of highways, to the supervisors, under the sixty-eighth, sixty-ninth and seventieth sections of article seventeen, of the township organization law of 1861, should be formally addressed to the town clerk. It is sufficient, if it is a paper stating the order appealed from, the time when the order was filed, and the ground upon which the' appeal is taken, signed by the party appealing, and filed by him within the required time, together with the bond of the party, with sureties, to be approved by the clerk.</p> <p>2. Notice of such appeal—of stating the grounds of appeal. The statute does not require the grounds of such an appeal to be stated in the notices issued to the commissioners and petitioners, but in the paper filed with the town clerk; and if the clerk, in issuing the notices, undertakes to set forth therein the grounds of the appeal, and misstates them, while it may be a good reason for an application to the supervisors to postpone the hearing, it will not affect their jurisdiction over the subject matter of the appeal as set forth in the paper filed with the town clerk.</p>

<p>1. Notice—of amendment of officer’s return. Leave will be granted to an officer to amend his return, as a matter of course, and notice to the opposite party of the intended application for such leave is not necessary.</p> <p>2. Error—obviated by amendment in the court below. Where judgment is entered by default, and it is assigned for error that the sheriff’s return was insufficient, such error may be obviated by amendment in the court below.</p> <p>3. Costs—where error is removed by amendment in the court below. Where the record in the circuit court, after a writ of error is sued out, is so amended as to remove the error of which complaint has been made, a motion by the plaintiff in error for judgment for costs comes too late after the amended record is filed. Such motion should be interposed or terms should be insisted upon by the plaintiff in error when the application is made to file the amended record, when it is discretionary with the court to require the payment of costs as a condition to the filing of the same.</p>

Writ oe Error to the Circuit Court of Champaign county ; the Hon. A. J. Gallagher, Judge, presiding. The principal question in this case arises upon the construction to be given to the will of Benjamin Lester, deceased.

<p>1. Master and servant—liability of the common master for injury to a servant, received through the negligence of a fellow servant. In an action against a railroad company by the administratrix of “ A,” for wrongfully causing the death of “A,” who was at the time in the service of the company, it appeared that “A” was one' of several workmen, under the immediate charge of one Hill, as foreman, whose duty consisted in examining all trains on. their arrival at the railway station in B—and making all needed repairs. He and a fellow workman had been engaged in “jacking up” and repairing a car in a freight train, and having finished his work, had started for the shop where they kept their tools, when, in passing down between the rails of the main track, he was overtaken and struck by a switch engine, and so injured that he soon after died. The switch engine was constantly engaged ou the station grounds, and although under the immediate control of the yard master, it was used for whatever purpose it might be required, and among others, for switching such car or cars as were to undergo repairs by Hill’s men. If a car in a train which had just arrived was found to need repairs, Hill would advise the yard master, and the latter would have the switch engine place the car in such position in the yard as he 'might think proper, when Hill’s men would make the necessary repairs. Under these circumstances it was held, that the deceased, and the engineer managing the engine, through whose negligence “A” received the injury which caused his death, were fellow servants in such a sense as to subject them to the operation of the well established rule, which refuses a remedy against a common master, in favor of one employee, who receives an injury through the carelessness of another, while in the same line of duty.</p> <p>2. And, while it is not easy to define who are to be considered fellow servants in the sense of the general rule, which exempts the common master from liability for injuries received by one employee through the carelessness of another, while in the same line of duty, with such perfect accuracy that doubtful cases will not occur, in this case the court say that, in their opinion, the principle announced in the following instruction asked by the defendants is correct: “ If the jury believe, from the evidence, that both the deceased and the engine driver, at the time deceased was injured, were in the employment of the railroad company, and that their ordinary occupations in such service bore such relations to each other, that the careless or negligent conduct of the engine driver endangered the safety of the deceased, then such danger was incident to the employment of the deceased, and the plaintiff can not recover in this case.”</p> <p>3. So where the ordinary duties and occupations of the servants of a common master are such that one is necessarily exposed to hazard by the carelessness of another, "they must be supposed to have voluntarily taken the risks of such possible carelessness when they entered the service, and must be regarded as fellow servants within the meaning of the rule.</p> <p>4 And in this case, the fact that the engine driver received his orders from the yard master, while the deceased received his from the foreman of the repair gang, can not be considered as material. They were still the fellow servants of a common master, working in the same place, to subserve the same interests, and with their occupations so related to each other that the safety of the deceased necessarily depended to a greater or less extent upon the care of the engine driver.</p>

Weit .of Error to the Circuit Court of Champaign county; the Hon. O. L. Davts, Judge, presiding. This was a suit in chancery, instituted by Samuel Partlow, to set aside a deed alleged to be a cloud upon the title of complainant to a lot of ground, which he claimed under a levy and sale on an execution issued upon a judgment recovered by him against Thomas A. McLaurie. The circumstances attending the transaction are set forth in the opinion of the court.

Writ op Error to the Circuit Court of Macon county; the Hon. A. J. Gallagher, Judge, presiding.

<p>1. Parties—who may sue for the price of goods sold at cmction. An auctioneer can maintain a suit in his own name for goods sold and delivered by him, because he has the possession of the goods and a lien upon them for his charges.</p> <p>3. So, where A, being a member of a club of twenty-three persons who bought each a ticket in a New York lottery scheme, with an agreement to share equally whatever might be drawn, received a sewing machine drawn by the club, paying the charges for freight, and upon authority of a majority of the ticket holders, sold the machine at auction, it was held, that A could maintain an action in his own name for the price of the machine. Having the possession, and a lien on the machine for the freight paid by him, his position was the same as that of any auctioneer who sells and delivers goods by authority of the owner.</p>

John M. Scott, Judge, presiding. This was a suit on a promissory note, brought by Samuel V. Calhoun against William M. and John C.'O’Neal and William Beeler.

<p>Limitation act or 1839—necessity of a continuous possession. Where a party claiming land under color of title, payment of taxes and seven years’ possession, held undisputed possession from 1858 until 1867, with the exception of the year 1864, during which year the owner of the paramount title held quiet possession by his tenants, but without the consent of the tax title claiinant, who paid the taxes during the whole of the time, it was held, the bar of the statute was incomplete, the tax title claimant having acquiesced in an interruption to his possession, making no effort to recover the possession by action at law.</p>

<p>1. Parties—in suit for penalty for issuing marriage license to a minor— who may sue. The tenth section of the chapter of the revised statutes entitled “ Marriages,” which provides that the clerk of the county commissioners’ court shall forfeit to the use of the father, a penalty for wrongfully issuing a marriage license to a minor, must be construed as giving the father a right to sue in his own name.</p> <p>2. Pleading—declaration in suit for penalty for issuing marriage license to a minor. And in a suit by the father to recover such-penalty, it is sufficient if the declaration avers the license was granted without his consent. It is not necessary to aver that banns had not been published, that the father was capable of consenting to the issuance of the license, or that the clerk omitted to swear the parties.</p> <p>3. But if the publication of banns would relieve the clerk of the penalty imposed, or if the father was incapable of consenting, or if the clerk was deceived by false swearing, he should make these defenses by plea.</p> <p>4. It is sufficient for the plaintiff to make out a prima facie case, under the section giving the penalty, and not necessary to controvert in advance every possible defense.</p> <p>o. This is not the case of an action given by statute, with an exception in the same clause giving the right of action, as in Whitecraft v. Vanderver, 12 Ill. 238, and Chicago, Burlington & Quincy R. R Co. v. Carter, 20 Ill. 391.</p> <p>6. Same—averment as to name of party to whom license was issued,. And an objection that the declaration shows the name of plaintiff’s daughter to be “ Martha,” when the license was issued to “Mattie,” will not avail where the declaration, in several of its counts, describes the daughter’s name as Mattie, and in others as Martha or Mattie, and avers the license was issued to her under the name Mattie, by virtue of which she was married to the other party named in the license.</p> <p>7. Marriage license to minors—clerks of county courts succeeded clerks county commissioners' courts. Nor is the objection, when the suit is against a county clerk, that the statute, by its terms, only applies to the clerk of the county commissioners’ court, well taken, because the clerk of the county court, in succeeding to the powers and emoluments of the clerk of the superseded court, accepted, also, his responsibilities.</p>

<p>1. Costs on foreclosure—solicitor’s fees. In a decree of foreclosure of a mortgage, it is error to allow for money advanced by and for fees of the solicitor, such allowances not being statutory fees or charges.</p> <p>2. Surety—of his rights before he is damnified. Where the principal debtor executes to the payee of a note on which there is personal security, a mortgage for further security, until the surety pays the debt he has no right to be subrogated to the rights of the mortgagee, and to have the mortgaged premises sold and the money paid to him.* </p> <p>3. Chancery—relief upon answer. Where the surety on a note secured by mortgage, brought suit for the purpose of obtaining a decree of foreclosure in his favor, and the payee filed an answer resisting the relief sought by the surety, but filed no cross bill nor asked for any relief: Held, it was error to decree a foreclosure for the benefit of the payee.</p>

Writ of Error to the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding. This was a prosecution for bastardy, against Green H. Jones. The defendant entered his motion in the court below, to quash the affidavit and writ issued thereon, on the alleged ground that the complaint was made by a person other than the mother of the bastard child. The court overruled the motion, but no exception was taken thereto.

<p>1. Taxation—-for bounty purposes—by towns in Fulton county, under act of Februm\y 9,1865. That act authorizes any town in Fulton county to levy and collect a tax for war purposes, not to exceed three per cent in any one year, to pay to volunteers, substitutes and drafted men, who might enlist or be drafted in the military service of the United States. It is held, the power to levy this tax was not exhausted by the levy of a tax of three per cent in any one year, but the act contemplated there might be a necessity for a further levy, which might be made to any extent, so it did not exceed three per cent in any one year, upon the taxable property in the several towns.</p> <p>3. Under this act, it -was competent for the several towns to incur debts for the purpose contemplated, and if the tax authorized to be levied for one year was not sufficient to pay them, successive levies might be made, until a sufficient sum should be raised for their payment, being limited only to the three per cent in any one year.</p> <p>3. So, where one of those towns employed an agent to secure volunteers in the army, to be credited to the town, in order to avoid the then impending draft, agreeing to pay such agent for liis services, and to reimburse him for all moneys advanced by him in accomplishing the purposes of the act, it was held, the town, as a municipal corporation, would be liable to the agent on such contract. The obligation thus incurred would not be that of the individual officers who acted in behalf of the town.</p> <p>4. Remedy—against towns—upon their contracts. Towns may be sued, in respect to their contracts, in any appropriate action at law, or in chancery, and there is no limit in the use of these remedies, as to the character of the claim. .</p> <p>5. Assumpsit—against a town. So, where a town employed an agent to procure volunteers in the army, and to be credited to the town, in order to avoid an impending draft-, the town agreeing to pay the agent for his services, and to reimburse him for all moneys advanced by him in the accomplishment of the object, it was held, an action of' assumpsit would lie against the town upon such contract.</p> <p>6. Remedy—where the claim is payable out of a special fund. And the fact that such claim was payable only out of a special fund, to be raised by a special tax, would not deprive the creditor of the right to have a judgment against the town.</p> <p>7. Since it has been decided that an execution can not issue against a municipal corporation, the reason of the rule, that a judgment could not be recovered for a claim payable out of a special fund, has ceased, and the rule also. In this respect, the case of The Illinois State 'Hospital for the Insane v. Higgins, 15 Ill. 185, has been modified by that of City of Chicago v. Halsey, So Ill. 598.</p>

Writ of Error to the Alton City Court; the Hon. Henry S. Baker, Judge, presiding. This was an action of ejectment brought by-Bonnell against Smith, and afterwards Joshua Neely was also made a defendant. Bonnell claims title under a judgment recovered in April, 1863, against Philip English, and one of the questions presented is, whether English had a homestead right in the premises.

James Steele, Judge, presiding. This was an action of assumpsit, brought by Montague against Toles, upon a promissory note executed by Toles to W. S. Hinkle.

<p>1. Return upon process—of the time of service. A return upon a summons was as follows: “ Served the within named,” giving the names of the defendants, and concluding thus: “This fifth day of April, 1867:” Held, that by a proper construction of the return, the summons was served on the date mentioned, and the return was sufficiently certain in that regard.</p> <p>2. Service of summons in chancery—upon several defendants. The return upon a summons in chancery against several, was as follows: “ Served the within named, by leaving a true copy of the same with the within named,” giving the names of the several defendants: Held, it might reasonably be inferred from the return, that a copy was delivered to each defendant.</p> <p>8. But if the return would not bear that construction, it could only be understood that a copy was delivered to all the defendants collectively, and not to one of the number, and such a service would be sufficient.</p> <p>4. Service op process upon infants—necessity thereof. In a suit in chancery, an infant was made a party defendant in the bill, but was not named in the summons or served with the process. The guardian of the minor defendant, however, was named in the process and served therewith, and entered the appearance of his ward and filed an answer: Held, this was not sufficient to give the court jurisdiction of the person of the minor; that could be acquired only by service upon the minor himself. The guardian had no authority to enter his appearance.</p> <p>5. Assignment op ebbob—by whom. As a general rule, one of several parties to a suit can not avail of an error committed against his co-plaintiif or co-defendant, but this rule is subject to the limitation that the party seeking to avail of such error is not affected by it.</p> <p>6., So, where a widow instituted a suit for an assignment of her dower in lands which her husband, in his lifetime, had sold and agreed to convey, making the purchasers and the heirs at law parties defendant, and a decree was rendered in accordance with the prayer of the bill, upon writ of error sued out by the purchasers, they may assign as error, that there was no service of process in the court below upon one of the heirs, who was a minor, although such minor did not join in the writ of error, because it would be their right to have all questions in regard to the dower settled in that proceeding.</p>

<p>1. Common cabbiebs—delay in transporting stoch—construction of contract. In an action against a railroad company to recover damages for delay in transporting a lot of hogs, it appeared the contract was, that the company should not be liable for loss “ by delay of trains, or any damage said property might sustain, except such as might result from a collision of a train, or when cars were thrown from the track in course of transportation.” During the trip, one car was thrown from the track by reason of a broken rail, while all the cars containing the hogs remained on the track: Held,, the company were liable for whatever hogs were lost, or whatever shrinkage occurred by reason of the delay caused by the accident.</p> <p>2. But the company would not be liable for injury resulting from delay not attributable to the accident, such as delay caused by the cold weather.</p> <p>3. Pabties—who may sue upon a contract made in the name of one partner. One of two partners entered into a written contract, in his own name, with a railroad company, for the transportation of property belonging to the firm. The parties had no particular way of signing the firm name, signing, sometimes, in the names of both partners, and sometimes in the name of one or the other of them, individually: Held, a suit could be maintained in the names of both partners, for a breach of the contract.</p>

<p>1. Divorce—-for cruelty. A single act of cruelty does not constitute sufficient ground for a divorce. There must be extreme and repeated cruelty, which must consist, in physical violence, and not merely in angry or abusive epithets, or even profane language, to authorize a divorce in this State. Mere angry or abusive words, menaces or indignities, do not constitute cruelty, within the meaning of our statute.</p> <p>3. Same—-for desertion. Desertion, to be a cause for divorce, must be willful, and continue for two years. Mor is the case altered, where the bill is prematurely filed, by filing a supplemental bill, alleging two years’ desertion, when the two years includes any portion of the time which has elapsed after the filing of the original bill. A hearing can only be had on the grounds which exist when the suit is commenced, and subsequent grounds can not be incorporated into the case after the commencement of proceedings.</p>

<p>1. Passengers on freight trains. In a suit against a railroad company for damages resulting to the plaintiff by reason of bis being put off a freight train on which he had taken passage without first procuring a ticket, it was objected that the plaintiff had not proven such train was employed in carrying passengers: Held, it was sufficient that the evidence showed defendants, at the time of the occurrence, were accustomed to carry passengers on freight trains; that notices were posted up around the window of the ticket office, that passengers on freight trains must first obtain tickets, and that . there were persons on the train who had procured tickets.</p> <p>2. Allegations and proofs—as to place from which a passenger was to be ca/rried. An averment in the declaration that the defendants, for a consideration, undertook and promised to convey the plaintiff, as a passenger upon their cars, from “West Urbana to Tolono,” is supported by proof showing the undertaking was to carry the plaintiff from “ Champaign City to Tolono,” it also appearing, from the evidence, that West Urbana and Champaign City are one and the same place.</p> <p>3. Measure of damages—in action against a railroad company for personal injuries. In an action for personal injury, unless the injury complained of was willful, mental suffering of the plaintiff, such as is produced by an injury to one’s reputation by circumstances of indignity and contumely under which the injury was done, and the consequent public disgrace to the plaintiff, can form no part of the inquiry by a jury, in estimating the damages. In such case the only inquiry for the jury is, the bodily injury to the plaintiff, with such consequential damages as were the necessary result of the injury.</p> <p>4. Passengers on railroads—of the place of putting them off for want of tickets. Railroad companies are liable for injuries caused to a person by reason of the company or their servants putting him off, or compelling him to leave their train at any other than a regular station.</p>

Writ op Error to the Circuit Court of Sangamon county ; the Hon. Benjamin S. Edwards, Judge, presiding. This was an action of assumpsit, brought by the trustees of the Methodist Episcopal Church of Illiopolis, against William F. Garvey, to recover upon a subscription. Upon trial in the court below, judgment was rendered for the defendant, and to reverse this judgment the plaintiffs bring the record to this court.

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Benjamin S. Edwards, Judge, presiding.</p>

<p>1. Highways—duty and liability of cities for safe condition of their streets. The authorities of a city under whose control are its streets and sidewalks, are liable in damages for injuries occasioned by reason of the streets and sidewalks being out of repair.</p> <p>2. Measure of damages—for negligence on the part of municipal corporations. But it has never been the doctrine of this court, or of any other, that a municipal corporation shall be held liable for more than compensatory damages, unless there shall be proof the injury complained of was willful, which is scarcely possible in'the case of a corporation of that description.</p> <p>3. Willful negligence—of evidence thereof. The mere non-feasance of city authorities in respect to repairing a defective sidewalk, they having no knowledge thereof, cannot be charged as willful negligence.</p> <p>4. Excessive damages. In an action against a city to recover for injuries received by the plaintiff, by reason of a defective sidewalk, it appeared the plaintiff was a girl, about twenty years of age, who was employed as hired help, and, as such, probably received one hundred dollars per annum. Her injuries were not of such character as to prevent her still earning her living by labor she was qualified to do. A verdict of $3000 was set aside as excessive.</p>

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. Benjamin S. Edwards, Judge, presiding.</p>

<p>1. Widow—renunciation of will of her husband—election under the tenth and fifteenth sections of dower act. Under the tenth section of the statute of dower, a widow may renounce the benefit of a devise in the will of her husband, “ and take her dower in the lands and her share in the personal estate of her husband,” and having made such election, she may then, under the fifteenth section, if there be no children or descendants of children, “if she elect, have in lieu of her dower in the estate of which her husband died seized,” one-half of all the real estate in fee, after the payment of debts.* </p> <p>2. Same—election under the fifteenth section—what is embraced in the word “ dower." The word “ dower,” as used in the fifteenth section of the dower act, is to be understood in its proper common law sense, having no relation to the widow’s interest in the personal property. That section was designed to give to the widow the right to elect between two different estates in the realty, without disturbing her interest in the personalty.</p> <p>3. So if the widow elect, under the fifteenth section, to take one-lialf the realty remaining after the payment of debts, “ in lieu of her dower,” she will still be entitled to “ her share in the personal estate of her husband.”† </p>

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

John M. Scott, Judge, presiding. This was an action of assumpsit, brought to recover for goods sold and delivered. The facts of the case, generally, are fully stated in the opinion of the court.

This is an application of “ The Illinois Staats-Zeitung Company,” for a writ of mandamus, to compel the common council of the city of Chicago to designate the German newspaper printed and published by the said company in the city of Chicago, and known as “ The Illinois Staats-Zeitung,” to publish the proceedings, notices and ordinances of said city and the departments thereof, as fully as they are required to be published in the corporation newspaper.

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

Writ op Error to the Circuit Court of DeWitt county; the Hon. John M. Scott, Judge, presiding. This was a scire facias on a recognizance, entered into by Jonathan Way, with Jordan Banta and Tillman Lane as sureties, for his appearance at the November term, 1868, of the DeWitt circuit court, to answer a charge of manslaughter.

<p>Appeal from the Circuit Court of Champaign county; the Hon. Oliver L. Davis, Judge, presiding.</p>

<p>1. Change oe venue — in suits where a county is a party. In a suit where a county is a party, a change of venue may be awarded to another county, as in all civil actions, when application therefor is properly made.</p> <p>2. Batieication of contract. A county court made an order for the erection of a jail, to cost not exceeding $10,000. The county judge and an associate justice of the county made a contract with certain parties, by which the latter were to build a jail at a cost of $25,000. After the building was completed, the county court, acting as such, received it and appropriated it-to the use of the county, and acknowledged that the county owed the contractors the balance due upon the contract price. This final action of the county court bound the county according to the terms o'f the contract, notwithstanding those who made the contract on behalf of the county may have exceeded their authority in respect to the cost of the building, the county court having competent authority in reference to the subject matter of the contract.</p> <p>3. Assumpsit—recovery under the common counts. Where a contract has been performed, and nothing remains to be done but to pay the money, a recovery therefor may be had under the common counts.</p> <p>4. Same — and herein, where the payment was not to be made in money. Where a party contracted to build a county jail, and to receive in payment therefor the bonds of the county, and, upon completion of the building, did receive the bonds, which were afterwards, however, repudiated by the county authorities as invalid: Held, the county having denied the validity of the bonds, the party doing the work could recover the price agreed to be paid therefor, in money, and under the common counts; the county, having repudiated the bonds, would be estopped to assert their validity so as to defeat the action.</p> <p>5. Same—must place the county in statu quo. But before a recovery could be had in such case, the plaintiff should return the bonds to the county, or at least bring them into court and surrender them to be canceled.</p>

Charles Turner, Judge, presiding. This was an application, made at the March term, 1866, of the Cass circuit court, by the complainant, Louisa Plaster, for further alimony and maintenance.

John M. Scott, Judge, presiding. This was an action brought by Henry Pindar and Eobert Pindar, against the Toledo, Peoria & Warsaw Eailway Company, to recover for the loss of a store house and its contents, by fire, communicated from a burning building owned by the company, from which the fire was blown across the street to plaintiff’s store. The company’s building was set on fire by means of sparks which escaped from a passing engine of the defendants.

Writ op Error to the Circuit Court of Macon county; the Hon. Arthur J. Gallagher, Judge, presiding. This was an action on the case, brought by Simon Seitz, against the Toledo, Wabash & Western Eailway Company, under the statute, for neglect of the defendants to fence their track, whereby, it was alleged, injury resulted to a mule, the property of the plaintiff, and claiming damages. On the trial, the issues were found for the plaintiff, and his damages assessed at $100.

<p>Assignee before maturity—subject to what defenses. It is no defense to an action upon a promissory note, by the assignee against the maker, that the consideration of the note, between the maker and the payee, was a wager on the result of the presidential election, where the assignee received the note in good faith, for a valuable consideration, before maturity.</p>

Writ op Error to the Circuit Court of Champaign county; the Hon. A. J. Gallagher, Judge, presiding. This was a suit in chancery, brought by Rachael E. Goltra, Mary A. Goltra, James Goltra and William E. Goltra, minor heirs of Clarkson K. Goltra, deceased, against Almira E. Sana-sack, surviving widow of said Clarkson K. Goltra, and Ira Gardner, for the purpose of having a deed of conveyance reformed and an alleged mistake corrected.

<p>1. Bubden of peoof—in suit against am, officer f 'of failing to malee a lemy. In a suit against a sheriff for a failure to seize and subject to sale under execution personal property shown to have been in possession of the defendant in the execution, it devolves upon the officer to show that such property was exempt front execution, or such facts as justify a failure to make-a levy. The onus probandi in such case is upon the officer.</p> <p>%. Where a sheriff was sued for a failure to make the money in satisfaction of an execution received by him, the plaintiff proved the defendant in the execution to have owned and been in possession of a horse, which the deputy sheriff levied upon, but the sheriff afterward returned under a claim that he was exempt from execution: Meld,, the plaintiff having shown the defendant in the execution to have been the owner of and in possession of . property sufficient to satisfy the execution, the officer, failing to show that the debtor was the head of a family or the property in any way exempt from levy and sale, was liable.</p> <p>3. And that an instruction given for the defendant which failed to require the jury to find that the property was exempt from levy and sale on execution, but only required them to find that the horse was worth less than a hundred dollars, and had been returned under a claim that he was exempt, was erroneous.</p> <p>4 Exemption from execution—duty of the debtor. Where the defendant in an execution is in possession of personal property specifically exempt from levy and sale, and the officer levies upon it without his knowledge, before he can afterwards claim such property as exempt he must, if he has it, offer to surrender other property not exempt.</p>

Silas L. Bbyan, Judge, presiding. This was an action brought by Jones against the Adams Express Company, to recover damages for the non-delivery of a lot of trees received by the defendants to be transported from Shoals, in the State of Indiana, to Odin, in this State. The plaintiff recovered a judgment in the court below, and the defendants appealed.

<p>1. Judgment lien—its territorial extent. A judgment can not become a lien upon lands of the debtor, situate in any other county than that in which it was rendered.</p> <p>3. Lien oe a levy m a foreign county—its duration. Where an execution issued to a foreign county is there levied upon real estate, the lien of the levy will not continue beyond seven years from the last day of the term at which the judgment upon which the execution was issued was obtained, that being the duration of the lien of the judgment in the county where it was rendered.</p> <p>3. Redemption from a mortgage—by a judgment creditor. After the recovery of a judgment, the debtor executed a mortgage upon land owned by him, and situate in a foreign county. Subsequent to the making of the mortgage, the judgment creditor sued out an execution to the county in which the mortgaged premises were situate, which was levied upon the land and a certificate of levy filed for record. A foreclosure was afterwards had without making the judgment creditor a party, and after such delay that his lien under the levy was lost, he sought to sell the premises under a venditioni exponas. Upon bill filed to enjoin such sale, and cross bill by the judgment creditor to redeem, it was held, that, having lost his lien, he had no right of redemption, and could not, therefore, complain of any terms upon which he was permitted to redeem.</p>

A. J. Gallagher, Judge, - presiding. This was an action brought by Sanford Richards, against William C. Betzer, to the November term, 1868, of the Champaign circuit court, on two promissory notes, executed by the defendant, in favor of one S. D. Mandeville, who endorsed them to the plaintiff, both notes bearing date of October 5, 1867, due in ten months after date, and drawing ten per cent interest from date, one for the sum of $1000, and the other for $584.

Writ of Error to the Circuit Court of Edgar county; the Hon. James Steele, Judge, presiding. This was a suit in chancery, brought by Charles Carey against William Walker, impleaded with William Kile, for the settlement of a partnership concern, the answer of defendants being under oath, as required by the bill.

<p>1. Equalizing assessments—as between improved and unimproved lands. The board of supervisors, in exercising their power of equalizing assessments between the different towns of the county, must add or deduct the same per cent upon all the real estate in any- one township.</p> <p>3. So, an order of the board of supervisors increasing the valuation'of the improved lands in a township by adding one hundred per cent, and that of the unimproved lands by adding twenty-five per cent, is illegal and void.</p> <p>3. Judgment fob taxes—of noticeby the collector. A judgment entered against lands for taxes where the collector failed to give the notice required by statute of his intended application for judgment, is invalid.</p>

Henry S. Baker, Judge, presiding. This was an action of debt, on a bond, brought by John Silsbe against Napoleon B. Lucas, Thomas McDow and John Utt, to the April term, 1867, of the circuit court of Jersey county, and afterward taken, by change of venue, to the Alton City Court.

Hiram B. Decius, Judge, presiding. This was a suit in chancery, instituted in the court below on the sixth day of August, 1869, the purposes of which, and the questions arising thereon, are set forth in the opinion of the court.

Writ of Error to the Circuit Court of Alexander county; the Hon. David J. Baker, Jr. Judge, presiding.

<p>1. Amendment of answer in chancery—when and on what tm'ms allowable. Permission to a party to amend his answer is a matter of discretion in the chancellor, and will always be allowed in the promotion of justice and when injury can not result to the opposite party.</p> <p>2. And in cases where injury might result unless time is given to the opposite party to meet the change in the case produced by the amendment, the court should always refuse leave to amend, or give reasonable time to the other party to meet the amendment.</p> <p>3. Waivino answeb undeb oath—by amiended bill. The effect of an answer under oath, to an original bill calling for an answer under oath, can not be avoided by the filing of an amended bill waiving, the oath, and an answer to the same not under oath. The answer under oath, to the original bill, would still be evidence on the hearing of the cause, so far as responsive to the bill.</p> <p>4. Chattel mobtoag®s—rights of prior and junior mortgages. In a suit to subject property to payment of a chattel mortgage, sold under foreclo-. sure of a prior mortgage, it was hdd, the prior mortgage, not being shown to have been fraudulent when it was foreclosed, barred and foreclosed the equity of redemption of the mortgagor, and also of the mortgagee under the junior mortgage.</p> <p>5. Same—notice of sale—public and primate sales. Where the power of sale contained in a chattel mortgage does not require notice of sale to be given, the mortgagee has the option to give notice or not as he may choose, and he may sell at public or private sale, but as between the mortgagor and mortgagee, the sale, to be binding, must be fair.</p> <p>6. Same-—of the possession of the mortgaged property. Where a chattel mortgage provided that the mortgaged property should remain with the mortgagor until the maturity of the debt, which was January 1, 1861, but was permitted to retain the possession, as to a portion of the property, until the spring of 1861, and of the residue until the autumn of 1862, it was held, the mortgage was fraudulent and void as to a bona jide purchaser of the property at the dates last named.</p> <p>7. Same—irregula/rity in sales—subsequent purchasers. A bona fide purchaser, without notice, from the purchaser at a foreclosure sale of a chattel mortgage, is not required to inquire whether such sale was regular, but must be protected.</p> <p>8. And if such sale is irregular, the mortgagor, or his assigns or creditors, should take steps to enforce their liens, or to make redemption before the rights of innocent purchasers have intervened, or be barred in their rights.</p> <p>9. Chancery—remedy at lorn. Upon a bill in chancery being filed by a junior mortgagee of chattels, the mortgagor being made a party defendant, to subject property, sold under foreclosure of a prior mortgage, to payment of his debt, it was ñdd, upon failure to establish his right to equitable relief against the property, the complainant could not obtain a decree against the mortgagor for payment of his debt, there being a complete remedy at law, unless such relief was prayed for in the hill.</p>

John M. Scott, Judge, presiding. This was a suit in chancery for partition. The principal question is in reference to the proper construction of a deed executed by George L. Hill and wife, whereby they conveyed certain land to their daughter, Sarah L. Blakie, a married woman.

<p>1. Time of taking action in court—under notice to do so on a pa/i’ticular dag. Where a person is notified that a particular step will be taken in court on a particular day of the term, it is his duty to be present at the time and await the action of the court, or take a rule on the party giving the notice to proceed with his motion or cause by filing the necessary papers, and on his failing to comply with such rule, to have the proceeding dismissed.</p> <p>2. Administbatob’s petition for order to sell land to pay debts—time of filing. So where an administrator gives notice that he will file a petition on a particular day of a term, for an order to sell real estate to pay debts, he is not restricted to the day named, but may file his petition on a subsequent day of the same term.</p> <p>8. Same—necessity of an appraisement bill. It is not essential that it appear an appraisement bill was filed by an administrator, to authorize the court to grant his petition for an order to sell land to pay debts. The statute only requires the administrator shall make a just and true account of the personal estate and debts, so far as he can discover them, and he may thereupon file his petition.</p> <p>4. Same—preservation of the evidence in such proceedings—presumption. In a proceeding under the statute for an order to an administrator to sell land to pay debts, it not being a chancery proceeding, it is not necessary, in order to support the judgment, that the evidence be preserved in the record, but it will be presumed the evidence heard on the trial was sufficient.</p> <p>5. Administbatob—of his power in respect to the realty. It has been held that an administrator has no power to file a bill to remove a cloud from, or perfect the title to lands of which his intestate died seized.</p> <p>6. So an administrator has no authority to apply to a court of chancery to reform a deed made to his intestate in his life time, on the allegation that there was a mistake therein in the description of the land intended to be conveyed.</p> <p>7. Administbatioh of estates in chancery—generally, in such cases. In this case it appeared the administrator obtained an order for the sale of land to pay debts, in a proceeding at law under the statute. He afterwards filed his bill in chancery to correct a mistake in a deed to liis intestate, and asked a decree to sell the land. The court below decreed the relief sought in the suit in chancery, reforming the deed, and giving the administrator authority to sell: Eeld, while that decree was erroneous, by reason of the want of authority in the administrator to apply to a court of chancery for such purpose, yet, as that court had a general jurisdiction of the subject matter, the administration of estates, the decree was not void, and a bona fide purchaser under the decree would be protected.</p> <p>8. Moreover, the administrator having been given authority to sell, by the order in the statutory proceeding, a sale made by him, even after the decree in chancery, would, unless that fact were negatived, be referred to and upheld by the order in the first proceeding.</p>

Arthur J. Gallagher, Judge, presiding. This was an action of assumpsit, brought by Robert Taylor against James Millikin, for the recovery of money alleged to have been received by the defendant to and for the use of the plaintiff.

<p>1. Negligence—of contributory negligence. In an action against a railroad company to recover damages resulting to the plaintiff by reason of injuries received by him in leaping from defendants’ train of cars, the plaintiff being a passenger on the train, while the cars were in motion, at a station where the train did not stop, it was held, that even if the plaintiff leaped from the car on suggestion of the conductor, and the conductor only gave it as his opinion that the plaintiff could leap from the train in safety, it was his duty to exercise his judgment whether or not it was safe, and if the danger was so apparent that a prudent man similarly situated would not have attempted the leap from the train, then the plaintiff was guilty of negligence, and should not be permitted to recover. The plaintiff" if left to act voluntarily, and not under constraint, was bound to exercise ordinary prudence.</p> <p>2. O arribes of passengers and freight—rights of carriers and passengers. Railroad companies have a legal right to appropriate a portion of their trains exclusively to the carrying of freight, and to entirely exclude passengers from the same. Their obligations to the public only require them to furnish sufficient passenger trains to accommodate the travel, and such freight trains as the business of the country along their line requires. They are not required to carry passengers on their freight trains, or freight on their passenger trains. But they may, if they choose, do either.</p> <p>3. When a passenger purchases a ticket, he only acquires the right to be carried according to the custom of the road. He has a right to go to the place for which his ticket calls, on any train that usually carries passengers to that place. But he does not acquire the right to insist that the company shall carry him out of the customary course of their road. It is his duty, when he obtains a ticket, to inform himself as to the usual mode of travel on the road, and, so far as the customary mode of carrying passengers is reasonable, he should conform to it.</p> <p>4. Railroad companies, furnishing reasonable means for carrying passengers to all their stations, have the right to run trains that only stop at designated or the principal stations on their road. And when a person purchases a ticket, he should ascertain, before getting on a train, whether such train will only stop at the principal stations, or at all of them; and were he to get on one that was not accustomed to stop at the station to which he desired to go, and for which his ticket called, he would not, without an agreement to stop, have any right to insist upon the company’s changing the course of their business for his accommodation, and to serve his convenience.</p> <p>5. And should a person get on a train, without the consent of the employees of the road, not accustomed to stop at the station to which he desired to go, and for which his ticket called, the taking up of his ticket merely, without an agreement to stop at the desired station, would not amount to an undertaking by the company to put him off at that place.</p> <p>6. In such a case, the passenger is in the wrong, and has no right to insist that he should be safely put off at the point he desires, or to be carried through without charge.</p>

<p>Appeal from the Circuit Court of Mason county; the Hon. Charles Turner, Judge, presiding.</p> <p>The opinion of the court contains a statement of the case.</p>

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