Volume 54 — Illinois Reports

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

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

<p>1. Partnership—of the application of firm assets and of the separate property of the individual partners, to the payment of debts. As to the order in which partnership debts, and the individual debts of the partners shall be paid, the rule is, that no one partner has a right or share in the firm property, except the portion which remains after full payment of all the partnership liabilities; and each partner has a right to have the same applied to the payment of all such liabilities before any one of the partners, or his personal representatives, or his creditors, can claim any right to the same.</p> <p>2. And as between the partners themselves, there is a lien upon the partnership assets, as the primary fund for the payment of partnership debts, or at least an equity, which may be enforced through the partners, in favor of creditors of the firm, although it may not directly attach in the creditors, by virtue of their original claims, in all cases.</p> <p>3. Though it is only in cases where there is a dissolution by death, or bankruptcy of one partner, that the right of the joint creditors can attach as a quasi lien upon the partnership effects, as a derivative, subordinate right, under and through the lien and equities of the partners.</p> <p>4. In equity, in case of insolvency or death of a partner, thus terminating the partnership, the joint creditors are entitled to a priority of payment out of the joint fund, and the separate creditors to a like priority out of the separate property of the partners, unless specific liens have been acquired on the respective classes of property. But in case of a surplus in either fund, not subject to any specific lien, creditors of the other class may participate in such surplus.</p> <p>5. One partner can not, as against his copartners, give to his individual creditor, by mortgage, pledge, or otherwise, a specific lien upon his interest in the firm property, to the exclusion of creditors of the firm who have not acquired such a lien.</p> <p>6. Nor can a judgment creditor of one partner, by a levy upon the debtor’s interest in the firm property, acquire a lien superior to the rights of the other partners, or of the partnership creditors. Such a levy would only operate to give a lien prior to that of other separate creditors- of the individual partners upon their respective portions of the fund remaining after the payment of firm debts, and satisfying the claims of other partners.</p> <p>7. Where a person becomes a member of a firm, purchasing an interest in a mill and the ground upon which it stands, and there is a prior incumbrance by mortgage upon the premises, which the former owners agreed to remove, and also a mechanic’s lien of which the purchasing partner had no notice, the real estate becomes partnership property, and upon an adjustment of the rights of the partners, and partnership creditors, and creditors of individual partners, the purchasing partner, as against the separate creditors of the partners, will be considered a creditor of the firm, and as such, entitled to be reimbursed out of the joint fund, to the exclusion of such separate creditors, to the extent of those prior liens which had been satisfied on a sale of the firm property.</p> <p>8. Levy upon land in a foreign county—duration of the lien. Where an execution is issued to a foreign county, and there levied upon land, and a certificate of the levy duly filed, the lien of the levy will continue for the period of seven years from the time when the judgment became a lien in the county in which it was rendered.* </p>

Tliis^was a proceeding by attachment, in the name of the people, on the relation of the attorney general, against Edward S. Salomon, for an alleged contempt, in failing to obey the command of a peremptory writ of mandamus awarded by this court in the case of The People, on the relation of O. H. Miner, Auditor of Public Accounts, against Edward S. Salomon, Clerk of the County Court of Cook County, 46 Ill. 333, directing the said Salomon, as such clerk, to extend the taxes on…

<p>1. Pre-emption rights—entry of government lands—who may decide as to their validity. Under the pre-emption laws passed by congress, the land officers have, by implication, the right to decide all cases of contested preemption, so far as they depend upon the fact of prior settlement, and their finding in that regard, has been held conclusive by the courts, on the ground that such officers, in these proceedings, act in a quasi judicial capacity, and within the scope of their authority.</p> <p>2. And the land officers having the power to adjudicate upon the facts which give a pre-emption right, they have the power when the right is contested by a person claiming under a private entry, as well as when both claim under pre-emptions.</p> <p>3. On the other hand, when such officers have undertaken to cancel a patent or a certificate of entry, for which a purchaser has paid his money, either at their discretion, or under some pretended regulation of the department which the law did not authorize, or under some clearly erroneous construction of the laws of congress, the courts have h'eld themselves not bound by such acts of the officers of the land department, because they were not exercising a judicial function within the limits prescribed by law.</p> <p>4. So where a party purchased a tract of land at a government land sale, receiving the usual certificate of purchase, and subsequently another was allowed to enter the same land as a pre-emptor, the former contested the pre-emption claim before the register and receiver, who held the claim good, and the first purchaser appealed to the commissioner of the general land office, who ordered the entry of the pre-emptor to be canceled, and at once issued a patent to the contestant. The party claiming the pre-emption then appealed to the secretary of the interior, who reversed the decision of the commissioner, decided the pre-emption claim to be valid, and ordered the patent issued to the first purchaser to be canceled: Sdd, in a suit between those claiming under the respective parties, that the decision of the land officers was final, upon the right of pre-emption, so far as it depended upon the fact of settlement.</p> <p>5. Pre-emptor—of his right to convey the land before receiving a patent. Under that clause of the twelfth section of the pre-emption law of 1841, which declares that all assignments and transfers of the right thereby secured, prior to the issuing of the patent, shall be null and void, it is only the assignment or transfer of the right of pre-emption which was prohibited— it was not the design of the act to prohibit the sale of land entered under a pre-emption claim, after the entry was made, and before the patent was issued.</p> <p>6. So a mortgage executed by a party who had entered the mortgaged premises as a pre-emptor, before he received a patent therefor, was held not to be within the prohibition, and was not void under that act.</p> <p>7. Mortgage—of taxes paid by an unsuccessful claimant of the mortgaged premises. Where a party purchased land at a government sale, for which a patent was issued to him, which was afterwards canceled by the land officers, in favor of one who entered the same land as a pre-emptor, after the purchase by such patentee, the taxes paid upon the land by the latter would not become a prior lien to a mortgage executed by the pre-emptor after he made his entry.</p>

John M. Scott, Judge, presiding. This was an action on the case, brought by Bobert A. McClellan, against the Illinois Central Bailroad Company, as a common carrier, to recover for damage to a quantity of corn shipped by the plaintiff upon the defendants’ road from various points in this State, and to be transported to the city of Cairo, the damage resulting from the alleged neglect of the defendants to deliver the corn within a reasonable time.

John M. Scott, Judge, presiding. This was a bill in chancery, filed by-Jennie Haines, complainant, praying a divorce from her husband, Benjamin K. Haines, and for relief against Ira J. Bloomfield, whom she made a defendant as a party interested in a certain house and lot in Bloomington, which he had purchased from her husband, in which she also claimed an interest, alleging she had furnished the money, or a part thereof, with which to build the house.

<p>1. Judgment in ejectment—of its conclusiveness. While it is true that a verdict and judgment in favor of the defendant in ejectment may not in all cases be a bar to a future action by the plaintiff, even under our statute, since such verdict and judgment may not have been rendered upon the title, but merely because the defendant was not in possession at the- commencement of the suit, yet where the title is adjudicated, such judgment is as conclusive, as to the title established, between parties and privies, as would be the judgment in a personal action, even though the court finds the facts, a 'jury having been waived.</p> <p>2. Ejectment—outstanding title. In an action of ejectment where the defendant deduces title through a decree authorizing the administrator of a former owner to sell the premises, the question as to the validity of the decree and the sale 'under it can not arise, because, even if the decree were void, it would leave the paramount title outstanding in the heirs of the intestate, who alone could dispossess the defendant.</p> <p>3. And in such case it is competent for the defendant to prove possession and payment of taxes by those under wlicm he claims, for seven successive years, even though the sale at which he purchased was void, for such proof, if met by no countervailing evidence, would, at least, show a paramount title in the heirs of the intestate, and possession taken under such title, and that would defeat the plaintiff’s action, he not being in privity with the heirs or with the estate.</p> <p>4 Ejectment against a tenant—death of the landlord—purchaser at administrator's sale. Where an action of ejectment was brought against a tenant in possession, whose landlord was dead, and the administrator of deceased had notice of the pendency of the suit, it was held, that if the administrator could be regarded as ever having been the landlord of such tenant, he ceased to be so after the sale of the premises by him as administrator, and notice to him could in no way prejudice the rights of a purchaser at such sale previous to the commencement of the suit.</p>

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

John M. Scott, Judge, presiding. This was an action of assumpsit brought by Ernest G. and A. W. Frankenberg against the Illinois Central Eailroad Company, to recover the value of a shipment of cabbage delivered to the defendants at Bloomington, Illinois, consigned to Columbus, Ohio. The freight was prepaid on the consignment as far as Pana, Illinois, and.a guaranty taken for the payment of the charges through from Pana to Columbus.

John M. Scott, Judge, presiding. This was a suit in chancery, to foreclose a mortgage, in which the court below decreed that out of the proceeds of the sale of the mortgaged premises, a subsequent grantee of the mortgagor should be reimbursed for improvements made thereon, and in that respect was given a priority over the mortgagee. The mortgagee appeals.

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

<p>Appeal from the Circuit Court of Gallatin county; the Hon. Andrew D. Duff, Judge, presiding.</p>

<p>1. Water courses not navigable—ownership of riparian proprietor's. By the common law, a water course which is not navigable, belongs, its banks and bed, to the riparian proprietors.</p> <p>2. Water courses—as public highways—rigtvts of riparian owners. Merely because a water course may, in times of periodical freshets, for a few days or weeks, be capable of floating mill logs, but in its natural state, and during a greater portion of the year, is incapable of such floatage, the stream can not be regarded as a highway for that purpose at any time. The bed and the banks of such a stream, it not being navigable, belong to the riparian proprietors, and are wholly and absolutely private, and, there being no claim of prescription or user, not subject to the servitude of the public interest in that regard, nor to be considered as a public highway by water.</p>

<p>1. Election for town officers, in the city of Vandalia—of appointing the place of holding the same. Under the act of 1869, incorporating the city of Vandalia, and constituting the city a separate election district for the election of township officers, it is made the duty of the city council to fix the place of holding the election, and it is held not sufficient for the council, on the day before the election, to meet and have a verbal understanding where the election should be held, and that the record be subsequently made up in conformity with such understanding; but the council should take such formal action before the election that citizens could know from its records where it was to be held, and by what officers.</p> <p>2. Same—notice by the town clerh. The town clerk could not properly give notice, under that act, of the election to be held in the city precinct, until the city council had acted for the purpose of determining where the election was to be held.</p>

Writ of Error to the Circuit Court of Marion county ; the Hon. S. L. Bryan, Judge, presiding. This was a proceeding in chancery to enforce a vendor’s lien on certain lands in favor of an assignee of the notes given for the payment of the purchase money.

<p>Contributory negligence. In an action against a railroad company, to recover damages for the death of a passenger, alleged to have been occasioned by the wrongful or negligent conduct of the agents of the company, it appeared the train, upon which deceased was a passenger, had stopped at a station and remained a sufficient length of time to enable passengers to leave it in safety, but deceased, not availing of that opportunity, waited until the train was again in motion and then, without the interference or suggestion of any of the employees of the company, attempted to leave the train, and, while doing so, was thrown under the cars and received injuries of which he died: Held, there appearing to have been no mismanagement of the train on the part of the company, they were not liable.</p>

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

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

-Hiram B. Decius, Judge, presiding. In 1866, James L. Gillmore, plaintiff in this case, went to one Burke, agent of the defendants, to buy a mower. Burke offered him a “ Russell mower ” for $130. Gillmore offered five dollars less.

Whit op Ebbor to the Circuit Court of Clay county • the Hon. Richard S. Canby, Judge, presiding.' On the sixteenth of October, 1868, Edmund L. Howett conveyed to Robert Hall a certain lot of ground in the town of Flora, Illinois, for a consideration of $1900, taking a mortgage on the premises to secure the payment of the purchase money.

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

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

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

<p>1. Release of surety—talcing further security. The mere taking of further security from the principal in a bond, by the obligee, will not operate to release a surety on the bond.</p> <p>2. Instructions should be based on the evidence in the case.</p> <p>3. Variance between allegations and proofs—who to decide. In the introduction of written evidence, it is the duty of the court to determine whether it varies from the pleadings under which it is offered. And it is error for the court to leave such question to the jury.</p>

Writ of Error to the Circuit Court of Monroe county; the Hon. Silas L. Bryan, Judge, presiding. This was a prosecution for bastardy. A trial was had by jury, resulting in a verdict of guilty against the defendant, Charles Freeman, upon which the court, after overruling a motion for a new trial, rendered judgment.

Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding. This was an action of debt, upon the official bond of a constable. It appeared from the declaration, that the constable was elected on the seventeenth of March, 1866, and the bond sued upon was dated on the third of November, 1867.

<p>1: Insurance—of the effect of a renewal of a policy. A renewal of an insurance policy is, in effect, a new contract of assurance, and, unless otherwise expressed, on the same terms and conditions as were originally contained in the policy.</p> <p>2. Same—of the premises becoming meant. So where a policy of insurance contained a condition that if the premises insured were vacated by the owner or occupant for a period of more than thirty days without notice to the company and consent endorsed on the policy, it should become void, it was held, upon a renewal of the policy, if the premises were occupied when the renewal occurred, it, under the terms of the policy, became the duty of the assured to give the same notice that was required under the original contract of insurance, and obtain the consent of the company.</p> <p>3. Same—if notice and consent under the original contract. And notice to the agents of the company, and their consent, while the policy was originally in force, could not be regarded as notice to the company and binding on them under the renewal thereof.</p> <p>4. Same—omission to endorse consent on the policy. But it is not essential to the binding force of the consent of the agent in such case, given upon proper notice, that it should be endorsed upon the policy.</p> <p>5. Same—of a parrt of the premises becoming vacant. Two houses were embraced in the same policy, and insured for different sums, and the policy provided that if the insured premises should remain vacant for a certain time without notice to the company, the policy should become void. It was held, the fact that one of the buildings remained thus vacant, without notice to the insurer, would not invalidate the policy as to the other.</p> <p>6. Same—proofs of loss and notice thereof. Where a policy of insurance provides that, in case of loss, the money shall be paid in sixty days after notice and proof of loss, the company, by receiving and retaining the notice, affidavit of loss, and other papers, and making no objection, must be regarded as admitting that they were properly made and presented.</p> <p>7. And the assured is not required to introduce in evidence the notice of the loss, but may, by proof that he has delivered the notice and other papers, and that the company had interposed no objection to their regularity, raise the presumption that he has complied with the requirements of the policy in that regard.</p> <p>8. Same—change of title—mortgage. A policy of insurance contained this condition: “ Or if any change takes place in the title or possession of the property, whether by sale, legal process, judicial decree, voluntary transfer or conveyance; or if the policy is assigned without consent of the company endorsed thereon, then the policy shall be void: ” Held, a mortgage was not embraced in such provision.</p> <p>9. Forfeitures are odious to the law, and in enforcing them courts should never search for that construction of language which must produce a forfeiture when it will bear another reasonable construction which will not produce such a result.</p>

Writ of Error to the Circuit Court of McDonough county; the Hon. Chatjncey L. Higbee, Judge, presiding. In this case, the question is presented, as to the regularity of the proceedings of certain commissioners of highways, in locating and establishing a public road. One of the objections is, that the order of the commissioners establishing the highway was not made and filed with the town clerk in proper time.

<p>Writ of Error to the Circuit Court of Marion county.</p>

Silas L. Beyan, Judge, presiding. One of the questions arising in this case is, whether the owner of premises which he had occupied as a homestead, had abandoned the same in such manner as to lose his homestead right The testimony on that subject was as follows: One Nicholson, called by the party resisting the homestead claim, testified that the owner of the premises rented them to him in 1862, for three years, and in the fall of that year moved with his family to Centralia,…

. Appeal from the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding. Hillery Talbert, having obtained a contract for the building of a school house, let Rabbermann have it at a sum agreed upon between them, Rabbermann agreeing at the same time to pay for certain hauling which had been done by other parties, of materials for the building. Wiskamp, being one of the persons who had done such hauling, sued Rabbermann therefor.

Writ of Error to the Circuit Court of Jasper county; the Hon. Hiram B. Deoils, Judge, presiding. This was an action of debt, brought by Foltz against Stevens. The following is the declaration: In the Circuit Court. To March Term, 1870. James Foltz, the plaintiff in this suit, complains of James B. Stevens, the defendant, of a plea that he render to the plaintiff, for the use of John H. Halley, the sum of ninety dollars, which he owes and unjustly detains from him.

<p>Married women—when liable for costs. In a suit, under the statute, by a married woman against her husband, for separate maintenance, and in which she was unsuccessful, it was held, that under the law of 1861, known as “The Married Woman’s Act,” and the law of 1869, giving a married woman the control of her own earnings, it was proper to decree that the complainant should pay the costs.</p>

<p>1. Evidence—admissibility. In reviewing the action of the circuit court upon questions of objection to certain testimony, this court say, the case was one in which great latitude of examination and cross-examination was allowable, forgery being charged on the one party and perjury on the other; and it is impossible, in such cases, to mark out by definite boundaries, the field of inquiry proper to be traversed.</p> <p>2. Several defendants—judgment must be against all or none. In actions on contracts against two or more, and all are served with process, judgment must be rendered against all or none.</p> <p>3. Same—exception to the rule. The exception to this rule is where the defense is personal, as infancy, bankruptcy, and the like.</p> <p>4. So in an action on a contract against two defendants, where both are served with process and but one pleads to the action, it is improper to enter judgment against the party pleading, and not against his co-defendant. The latter should be defaulted, when the same jury could assess the damages against him, and so final judgment be entered against both defendants.</p> <p>5. Judgment—it 's requisites. An entry was made upon the verdict of a jury as follows: “whereupon the court enters judgment upon the finding:” Held insufficient, as having no element of a judgment other than a bare recognition of the finding of the jury, no action of the court being had upon that finding.</p> <p>6. Verdict—may be put in form by the court. It is competent for the court to give proper form to the finding of a jury, in their presence, and with their assent, and even without such assent.</p>

<p>1. Supplemental bill—its effect. Upon the filing of a bill in chancery to enjoin the sale of property, levied on under execution, on the ground that the property was not liable to levy, and the subsequent filing of a supplemental bill, setting forth the fact that in the meantime the judgment on which the execution issued had been reversed, it was held, the original bill showing no ground for an injunction, and the supplemental bill merely presenting matters arising since the commencement of the suit, which had no connection with the ground of relief set forth in the original bill, the injunction should be dissolved.</p> <p>2. Dissolution op injunction—assessment of damages. And should damages be asked by the defendant on the dissolution of the injunction, the reversal of the judgment would be a proper matter of consideration in their assessment.</p> <p>3. Rbvebsal op judgment—remedy as to pending levy. The reversal of a judgment on which execution has issued and been levied on property of the defendant, is no ground for applying to a court of chancery to enjoin the sale, the relief being adequate at law.</p> <p>4. In such case, the court, on motion, would stay all proceedings under the reversed judgment, and direct the sheriff to discharge the property.</p> <p>5. Injunction—release of errors at law. An injunction sued out to enjoin the sale of property which has been levied on under execution at law, upon grounds independent of the validity of the judgment, does not operate to release the errors in the proceedings in which the judgment was rendered, as would be the case where the injunction has reference to the judgment itself.</p>

<p>1. Fraud and cmcuarvENTioN—diligence required of the maker of a note. The mere fact that a party can read, will not cut him off from alleging, even against an assignee before maturity, that a promissory note executed by him was obtained by fraud and circumvention. But he should use reasonable and ordinary precautions to avoid imposition; if able to read readily, he should examine the instrument; if unable to read, or only with difficulty, he may have it read to him by some person present. A party can not act recklessly, disregarding all the usual precautions to learn the contents of the instrument, and then interpose the defense as against the assignee.</p> <p>2. Same—duty of the assignee to use diligence. The assignee in such case is, equally with the maker, bound to use proper diligence. Where agents of patent rights, who are strangers, offer to sell promissory notes, a prudent man would have his suspicions aroused from that fact, and could protect himself by making inquiry of the party who appears to be the maker.</p> <p>3. Same—application of the rule in this case. So in an action upon a promissory note, by an assignee before maturity, against the maker, the defense being that the payee obtained tiie note by fraud and circumvention, it appeared the payee and another person, who were strangers to the defendant, went to his house and proposed to him to become an agent for the sale of certain farming implements, which he at first declined to do, on the ground that he would not become bound for anything. The strangers assured him he would incur no obligation, and he then assented. The implements were to be sent to him to be sold on commission, the terms being agreed upon. They then proposed to give him an instrument for his protection in making sales, as the articles were patented. The payee prepared an instrument and handed it to defendant for his signature, but being unable to read it without difficulty, he requested that it be read to him, which was pretended to be done by the person in company with the payee. They then produced another paper, which they assured defendant was a duplicate of the one read to him, and he signed both papers. These papers were much larger in size than the note, and that which was read to the defendant did not appear, as read, to contain any obligation of the character of a note, and he was not aware he signed one. The inference was, the note was embraced in one of the papers signed, and afterwards detached therefrom and assigned, and the device or trick was resorted to in order to get the maker to sign a note without knowing the fact. It was held, the defendant used reasonable caution to guard against the imposition, while the assignee acted imprudently in taking the note from the payee. The defense was sustained.</p>

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action on the case, by Blakeman, against the Wiggins Ferry Company, to recover damages for an alleged injury received by the plaintiff while on the defendants’ boat, such injury, it was claimed, being occasioned by the negligence and want of skill on the part of defendants’ servants engaged in the management of said boat.

William P. Murphy, Judge, presiding. This was an action of assumpsit, instituted in the court below by Charles Fihlenburg, against Joseph B. Holmes.

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

<p>1. Assessment of damages on dissolution of injunctions—when sugges-' tions in writing required. A bill in chancery was filed to enjoin the corporation of a town 'from instituting and prosecuting actions at law against the complainant, for alleged violations of a certain ordinance of the town, prohibiting the sale of spirituous liquors therein: Held, such an injunction falls under that class of injunctions specified in the act of 1861, so that upon its dissolution, damages claimed by reason of the injunction could not be properly assessed by the court, unless the defendant filed suggestions in writing, of the nature and amount thereof. It was error to assess such damages upon a mere motion.</p> <p>2. Same—evidence upon such assessment, and the preservation thereof—presumption. In cases of assessment of damages under the act of 1861, requiring suggestions in writing to be filed, the court is required to hear evidence in respect thereof, and such evidence must be preserved in the record, to support the. decree awarding damages. There is no presumption in such case, to aid the omission of the evidence from the record.</p>

<p>Appeals from the Common Pleas Court of Sparta ; the Hon. William P. Murphy, Judge, presiding.</p>

<p>1. Tendee—at what time it may be made. A debtor may, even after suit is brought, and at any time' before the trial, make a sufficient tender and relieve himself from future costs.</p> <p>2. But in such a case, he should tender a sum sufficient to cover all that t¿e creditor then has a right to recover, whether of debt, interest or costs, and if he tenders less, the tender is not good, and the plaintiff would be entitled to recover costs.</p> <p>3. Same—effect of ‘verdict for a less sum, than was tendered. A debtor tendered his creditor a certain sum as the amount due, which, being refused, was deposited in court. Upon a trial by jury, a verdict was rendered for a less sum, when the court ordered the residue to be refunded to the defendant: Held, this was error, the defendant having, by tendering the sum, admitted it was due.</p>

<p>1. Taxation by counties—control thereof by the county court—who may challenge their action in that regard. To the county court is entrusted by law the exclusive power over the county revenues, and their collection, and if, in their judgment, a tax which has been ordered is found to be unnecessary, they have the right to rescind the order and arrest the collection of the tax.</p> <p>2. So where a county court had ordered a tax for several specific purposes named in the order, which had been extended upon the collector’s book accordingly, and the successors in office of such county court ascertained that the indebtedness, for the payment of which one of the specified items of tax was ordered, had been satisfied, it was competent for the court to rescind the order of their predecessors, so far as they found the purpose thereof had been subserved.</p> <p>3. And the mere fact that a person is a tax payer and a resident in the county in which such tax was ordered, will not authorize him to insist that the order directing the collection of a tax for a specific purpose, shall be restored, and the tax collected, when there is no longer any necessity for collecting such tax.</p> <p>4. Aud where a county court ordered a tax for several specific purposes, a certain rate for each separate purpose, and among them a tax was ordered for the purpose of paying the interest which should accrue for the current year on a certain class of bonds which had been issued by the county, and sufficient for that purpose, a holder of any such bond can not complain that the county court have arrested the collection of some of the items of such tax not embraced in that intended to pay the interest on the bonds.</p>

<p>1. Credibility oe witness—instructions. On the trial of a party indicted for murder, the court refused to instruct the jury, on the request of the prisoner, that they would not be warranted in disregarding the statements of certain witnesses, unless their testimony had been successfully impeached, and properly so, as it was for the jury to determine, in view of all the facts and circumstances, the degree of weight to be given to the testimony of each witness.</p> <p>2. A court can hardly err in refusing to give any instruction which seems designed to influence a jury as to the credit to be given to particular witnesses.</p> <p>3. Criminal law—bystander communicating with a juror during the trial. The mere fact that a bystander hands a slip of paper or speaks to a juror, during the progress of the trial of a capital case, without reference to the character of the communication, and without misconduct on the part of the juror, can not be regarded as ground for a new trial, on the theory that the juror’s mind was thereby diverted from the case.</p> <p>4. So where a bystander, during the progress of a trial of a party on the charge of murder, handed to one of the jurors five dollars which he owed him, and for no other purpose than the payment of the debt, it was held, while there was an impropriety in approaching a juror for any purpose, under such circumstances, without first obtaining the leave of the court and the consent of the parties, yet, as the transaction was entirely innocent in its character, and no harm to the prisoner resulted, it was not ground'for a new trial.</p>

<p>Replevin bond—its requisites. It is essential to the validity of a replevin bond that the name of the defendant in the suit appear therein; being defective in that regard it is a nullity, and the omission can not be supplied by averment or otherwise.</p>

Writ of Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.

<p>Creditor’s bill—who may maintain it. A surety who had paid a judgment recovered against himself and his principal, joined with other creditors, after the death of the principal debtor, in a bill in chancery to set aside a conveyance made by him in his lifetime, for the purpose, as was alleged, of defrauding his creditors: Held, such surety stood in the position of a simple contract creditor, not having obtained a judgment against his principal in his lifetime, or obtained an allowance of the claim against his estate, and therefore was not in a position to maintain a bill of that char-' acter.</p>

Andrew D. Duff, Judge, presiding. This was an action of assumpsit, brought by the administrators of Zenas Warden, deceased, against the administratrix of Joseph Bowles, deceased, upon the following writing: “ I owe the estate of Zenas Warden one hundred ninety 15-100 dollars.

<p>1. Joinder on parties complainant in chancery. Where a tax is sought to be levied without authority, several property owners, having a common interest in the subject, and asking relief against the same injury on the same ground, may join in a bill to restrain its collection.</p> <p>2. Multifariotjsness. Where several property owners join in a bill in chancery, to restrain the collection of an illegal tax assessed against them severally, asking relief against the same injury on the same ground, that is not joining in one bill such distinct and independent matters as will render the bill multifarious.</p> <p>3. School tax—power of school directors without a vote of the people. Under the forty-fourth section of the school law of 1865, school directors may levy a tax of one per cent upon property in the district, for school purposes, without being specially authorized so to do by a vote of the people ; but a tax levied by the directors for the purpose of building a school house, without a vote of the people favorable to such purpose being first had, as required in section forty-eight of that act, is unauthorized and illegal.</p>

Writ of Error to the Circuit Court of Jasper county; the Hon. Hiram B. Decius, Judge, presiding. This was an action of replevin brought by Felicia Cordray against John L. Elder, for the recovery of certain horses levied upon by the defendant, as sheriff, under an execution against Henry Cordray, the husband of the plaintiff, upon the alleged ground that the horses were the property of said Henry.

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

<p>Chahceky—sworn answer, uncontradicted. An answer in chancery, under oath, not overcome by what is equivalent to the testimony of two witnesses, must prevail, and, being responsive to the allegations in the bill, Will entitle the defendant to a decree.</p>

Silas L. Bryan, Judge, presiding. This was a bill in chancery, filed by Richard B. Servant and wife, to establish a lost deed in their chain of title to certain lands; the widow and heirs of the grantee in the lost deed, who were in possession of the premises, were made parties defendant, and, in their answer, claiming title in themselves, alleged that an action of ejectment was then pending for the premises, by the complainants against them; setting up, among other things,…

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

<p>1. Practice—who may open and conclude a case—error witt not always reverse. In an action of assumpsit, the defendant admitted the plaintiff’s account, but claimed he had paid it before suit was brought; this was the only issue between the parties: Held, the defendant, having presented the issue, held the affirmative, and that it was error for the court to refuse him the right to open and conclude the case to the jury, but not sufficient, of itself, to reverse a judgment when a fair trial had been had upon the merits and on proper instructions.</p> <p>2. Witness—of his credibility. An instruction which informed a jury, that if they believed, from the evidence, that the testimony of a witness had been successfully impeached in its material parts, they should disregard it altogether, was hdd to be erroneous; for although a witness may be impeached, yet if he is corroborated by other witnesses, or by the circumstances in evidence, the jury can not reject his testimony.</p>

<p>Altebatioít or conteact—whether an innocent party to he prejudiced thereby. Upon bill filed by the assignee of a lease, to correct a mistake in the description of the premises, it was insisted by the lessor, that there had been a material alteration improperly made in the terms of the lease; but it was held, even if that was true, it not appearing that the complainant was chargeable with any complicity with such alteration, he was still entitled to the relief sought by the bill.</p>

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

Writ of Error to the Circuit Court of Madison county ; the Hon. Joseph Gillespie, Judge, presiding. This was an action of assumpsit on the common counts, brought by John H. B. Willoughby, for the use of Morris M. Armstrong et al. against John S. Dewey, to recover for a field of growing wheat sold by the plaintiff, as constable, under an execution in his hands, to the defendant.

<p>Fraudulent conveyances. Where a debtor conveyed his homestead to his son, it being all the property he had, with the avowed intention of hindering and delaying his creditors, the consideration therefor not exceeding one-fourtli the value of the property, and the grantor being still permitted to occupy the premises as his own, it was held, the conveyance was fraudulent as to creditors. •</p>

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

Writ of Error to the Circuit Court of Massac county ; the Hon. David J. Baker, Judge, presiding. This was an indictment against Albert P. Mingia, charging him with the murder of John T. Collier. A trial resulted in a verdict of guilty, the jury prescribing the punishment to be confinement in the penitentiary for the term of twenty years, and the prisoner was sentenced accordingly. He thereupon sued out this writ of error.

<p>Bill op exceptions—when, necessary—presumption. Wlier,e, in a proceeding by scire facias upon a recognizance, an order was made striking the case from the docket, no exception being taken on the part of the people, and there being no bill of exceptions in the record showing upon what grounds such action was taken, it was 7ietd, it must be presumed the court acted upon sufficient cause.</p>

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

This is a writ of error to the county court of St. Clair county, by which it is sought to bring in review the action of that court in appointing Virginia E. Goe co-administrator, with Henry H. Horner, of the estate of Nathan Horner, deceased. It appears from the record that on the first of February, 1870, Henry H. Horner applied for letters of administration on said estate, which were granted to him.

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

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

<p>1. Evidence—of the identity of property. In an action of trover to recover a barge and two coal boats claimed to have been the property of the plaintiff, and converted by the defendant, the defendant offered in evidence the docket of a justice of the peace to prove a judgment in attachment against a pine barge, in a suit wherein this plaintiff was defendant, ordering its sale: Meld, there being no evidence in the record that the boat against which the judgment was rendered was either of those in controversy, and no proof that the boat was ever sold under the judgment, and the defendant not offering to make any, the judgment was properly rejected by the court as improper to go to the jury.</p> <p>2. And the transcript of a suit in the United States court for the condemnation and forfeiture of two coal barges, together with the judgment of condemnation, execution, and return of the United’ States Marshal that he had sold the same, were also properly rejected, the record failing to show, and the defendant not offering to prove, that the boats thus condemned and sold were those in controversy.</p>

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

<p>Tbover—when it will lie. An action of trover will lie against a carrier, who, by mistake, delivers goods to a wrong person.</p>

<p>1. Assignee before maturity—of obtaining possession of the note improperly, by the payee. It is no defense to a promissory note, in the hands of an innpcent holder, for value, assigned before maturity, that the payee fraudulently obtained possession of the same, or that the instrument was stolen from the maker, or otherwise wrongfully put into circulation.</p> <p>2. Sauk—fraud and circumvention. In an action upon a promissory note by an innocent assignee, before maturity, against the maker, a plea was filed averring that the execution of the note was obtained by fraud and circumvention. The evidence showed that the consideration of the note was a machine which the payee agreed to deliver to the maker, but which was never delivered. The defendant testified that, after signing the note, he was about to insert, before giving it to the payee, a condition which would insure the delivery of the machine or render the note void, when the payee snatched it from him and ran away: Held, there was not such fraud and circumvention in procuring the execution of the instrument as entitled the defendant to a verdict.</p> <p>3. Assignment without date—presumption. Where the assignment of a promissory note is without date, the presumption is, that it was endorsed before maturity.</p>

<p>1. Judgment in debt—its requisites. It is error to render a judgment for damages only, in an action of debt. In that action the judgment must be for the debt, and if damages are awarded for the detention of the debt, it should be so expressed in the judgment.</p> <p>2. Giving bond on continuance—power of a police magistrate. Where a party is arrested for an alleged violation of a town ordinance, the police magistrate before whom the proceeding is pending has no power to exact a bond from the defendant for his appearance, on granting him a continuance, and the court were inclined to hold a bond given in such case void.</p> <p>3. Surety—surrender of the principal. But conceding such a bond to be operative, the sureties thereon could discharge themselves by surrendering the principal according to the exigencies of their undertaking. And when the principal is thus surrendered, and the attention of the magistrate called thereto, it is immaterial whether the magistrate accept the surrender or not.</p> <p>4. Action op debt for a penalty—presence of defendant not essential. Where a party was arrested in an action of debt for a penalty for an alleged violation of a town ordinance, and gave a bond for his appearance on being allowed a continuance, it was held to be error to dismiss the suit because he did not appear, inasmuch as the court could have proceeded to final judgment as well in the absence of the defendant as when he was present.</p>

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

<p>Writ of Error to the Circuit Court of Jasper county; the Hon. Hiram B. Deoius, Judge, presiding.</p>

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

Writ of Error to the Circuit Court of Union county; the Hon. Monroe C. Crawford, Judge, presiding. This was an action of assumpsit, commenced in the circuit court of Alexander county, by Alfred P. Skeels, against Isaac H. Phillips, and afterwards removed into the circuit court of Union county on change of venue. The declaration contained the common counts, for work and labor, money lent, money paid, and money had and received.

<p>Writ of Error to the Circuit Court of Clay county; the Hon. Justin Harlan, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Saline county; the Hon. Andrew D. Duff, Judge, presiding.</p>

Writ of Error to the Circuit Court of Gallatin county; the Hon. Andrew D. Duff, Judge, presiding. At the August term, 1863, of the circuit court of Saline county, James Barnett was indicted for the alleged murder of John Seets. The cause was continued from term to term, until the April term 1866, when a trial was had, resulting in a verdict of guilty of manslaughter, and thereupon a new trial was granted.

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

<p>1. Dissolution on injunction—assessment of damages. On the dissolution of an injunction sued out to restrain the trustees of the Southern Illinois Normal University from locating and erecting said university at the city of Oarbondale, it was held,, that, on an assessment of damages’ sustained by reason of the injunction, the expenses of the trustees and their loss of time while in attendance at court on the hearing of the motion to dissolve, could not be considered as an element of damages, their attendance for such purpose not appearing to be necessary.</p> <p>2. Trustees of Southern Illinois Normal University—of thevr proper compensation. And even if their attendance was necessary, being employed in the discharge of their duty as trustees, and, as appears, charging the State for their time and expenses, neither the trustees nor the State could sustain damages for their time so expended, as it was employed for the public.</p> <p>3. Demurrer in chancery—want of equity in the MU. The question whether a bill in chancery shows equity ón its face should be raised by a demurrer to the bill, and not by motion; and on objection by the complainant, a motion entered for such purpose should be stricken from the files.</p> <p>4. But where no objection is interposed, such motion will be treated asa demurrer.</p>

<p>Appeal from the Circuit Court of Wayne county; the Hon. James M. Pollock, Judge, presiding.</p>

<p>1. Jurisdiction in chancery—remedy at law. A party held the promissory notes of certain school directors, given him for the price of a lot of land sold by him for a school house site, and for money loaned to them to erect a school house thereon. After the erection of the building, the school district within which it was situated was attached to and consolidated with another district. On bill filed by the creditor to enforce the collection of the debt against the latter district, it was held, the complainant had an adequate remedy at law upon his notes, if he had any remedy at all, and a court of equity would not, therefore, entertain the bill.</p> <p>2. School dibectoes—of their power to purchase school house sites amd to borrow money to build sclwol houses. School directors have no power, under the statute, to purchase a school house site, or to borrow money to erect a school house, except upon a vote of the people of the district first being had for that purpose. Therefore, the directors can not give their promissory notes for such consideration, so as to bind the district, unless the vote has been taken.</p> <p>3. Same—of their liability as individuals. Where school directors execute a promissoiy note in their individual names, for a purpose connected with schools, but not authorized by a vote of the people as required by law, a remedyat law exists against the directors, upon the note, as individuals.</p> <p>4. Same—liability over, of the school district. It may be, in such case, that the school district would be liable over to the persons who signed the note, on their showing that the avails were appropriated to the legitimate school purposes of the district.</p>

Silas L. Bryan, Judge, presiding. This was an action of assumpsit, a trial of which, in the court below, resulted in a verdict and judgment for the plaintiff, The defendant appeals.

<p>Officbbs of a private corporation—of thevr right to apply property of the corporation to the payment of debts dm them,. The president of a private corporation, claiming that the corporation was indebted to him for his salary as president and for services as an attorney at law, caused its secretary to assign to him certain certificates of purchase of land held by the corporation, and in their possession as officers thereof. Upon bill filed by the corporation to compel a surrender of the certificates, it was held, the officers could not thus apply property of the corporation in their possession to the payment of debts due them. They could acquire no lien for such purpose, and the officer obtaining the certificates in that manner should surrender them to the corporation unconditionally.</p>

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

<p>1. Parties—in gui twm action against a railroad company—construction of act of 1869. Under the act of 1869, which provides that one-half the penalty to be recovered against a railroad company for an omission to ring the bell or sound the whistle on the approach of a train to a crossing of a public highway, shall go to the “ prosecuting witness,” it is not essential, to entitle the person in whose name the suit is brought, to recover, that he should actually have testified in the case.</p> <p>2. So where, in such a case, there were no witnesses examined, but the case was tried upon an agreed state of facts, the person in whose name the suit was brought was regarded as the prosecutor, and being competent to testify, was the prosecuting witness, within the meaning of the act, and as such entitled to maintain the suit.</p> <p>3. Judsmemt—of its form, in such case. The act referred to provides that one-half the penalty in such case shall go to the prosecuting witness “ and the other half to go to the State: ” Held, the judgment for the penalty, so far as it is to go to the State, is properly rendered in favor of “ the people of the State of Illinois,” and should not be entered, in terms, in favor, of “ the State.”</p>

<p>Plea in abatement—its requisites. A plea in abatement that another action for the same cause was pending in the same court, began by praying judgment of the writ and declaration, and ended with a prayer for judgment of the writ only, and that the same be quashed: Held, on demurrer, the prayer for judgment of the writ only, in the conclusion, was sufficient, and the prayer for judgment of the declaration, in the commencement, was regarded as surplusage, which could not vitiate the plea; so there was no want of proper “ correspondence ” between the commencement of the plea and its conclusion.</p>

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

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

Erastus S. Williams, Judge, presiding. This was an action of replevin, brought by the Singer Manufacturing Company against James Hamilton. A trial resulted in a verdict and judgment for the plaintiff. The defendant appealed.

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

Charles B,. Starr, Judge, presiding. This was an action of assumpsit brought by Brooks against Esty, in which it is sought to recover against the defendant as endorser of certain promissory notes. The alleged grounds of recovery are, first, that a suit against the maker of the notes would have been unavailing, by reason of his insolvency, and, second, that the maker had left the State at the maturity of the notes.

<p>Evidence—to support a verdict against a railroad company for injury to stock. While it is essential, to support a verdict against a railroad company for injury to the cattle of the plaintiff, that the evidence should connect the defendants with the injury complained of, still it is not necessary the fact should be proven beyond a reasonable doubt. A preponderance of the evidence will suffice, and that was considered to exist in this case.</p>

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

<p>New trial—verdict against the evidence. In this case, the court, consicU. ering there was evidence sufficient to warrant the finding of the jury, refuse to disturb their verdict on the ground that the evidence was insufficient to sustain it.</p>

William A. Portee, Judge, presiding. This was an action ex contractu, brought in the court below, by Hyde and others, against Titsworth and others, as co-partners, under the name and style of A. D. Titsworth & Bros. The plaintiffs sought to bring the cause to trial out of its regular order upon the docket, under the following rule of the superior court: “ Ordered, That in any case ex contractu, pending on an issue or issues of fact only, or only requiring the similiter to be…

. Appeal from the Circuit Court of Lee county; the Hon. W. W. Heaton, Judge, presiding. This was a petition for assignment of dower, presented in the court below by Julia A. Quigg, against Becker and others, the defendants being in possession of the premises, and claiming title through mesne conveyances from the husband of the petitioner.

Writ of Error to the Superior Court of Chicago. This was an action brought by the plaintiff, to recover for the death of his son, caused by the alleged negligence of the defendant. The opinion contains a statement of the case.

Writ of Error to the County Court of LaSalle county; the Hon. Charles H. Gilman, Judge, presiding. Held: possession of said tract, and cut timber therefrom, and used the same in making improvements on other real estate belonging to her as her sole and separate property, and that, by reason of the cutting by her of timber from said woodland, it has been reduced in value, and that the defendants Barzillai and John Garretson are insolvent.

<p>Writ of Error to the Recorder’s Court of Chicago; the Hon. William K. McAllister, Judge, presiding.</p>

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

<p>Writ of Error to the Superior Court of Chicago.</p>

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

<p>1, Criminal law—organization of a grand jury. While it is usual, and would be more formal, to insert in the record in a criminal case, the names of the persons composing the grand jury who found the indictment, yet it is not essential, to support a verdict of guilty, that the record should affirmatively show even that the requisite number of grand jurors was present at the time of the organization of the body.</p> <p>2. So where the record in a case where the defendant was convicted upon the charge of murder, showed that the grand jury who found the indictment “ was called, impanelled and sworn,” and that a foreman was appointed, it was 7teld, the necessary intendment was, that the grand jury so sworn was properly organized.</p> <p>3. Evidence in cbiminal cases—in respect to a conspiracy. When life and liberty are at stake, every circumstance connected with the alleged crime, and which may tend to excuse or palliate the conduct of the party charged, or explain the motives, should be submitted to the jury.</p> <p>4. On the trial of a party charged with murder, the evidence tended to show that the fatal blow was struck while the prisoner and the deceased were engaged in a fight, which was the result of a conspiracy between deceased and several others “ to clean out or whip ” the prisoner and his friends, the arrangement being that deceased should make the attack upon the prisoner, which he did: Held, it was competent for the prisoner to prove what was done by the parties, in pursuance of that plan or arrangement, to carry into effect the objects of the conspiracy, if one existed.</p> <p>5. Knowledge of the conspiracy had come to the prisoner, and the full development of the facts, as shown in the acts of the parties in the prosecution of their unlawful purpose, was proper, as tending to explain the animus of deceased at the time of the conflict, and also to enable the jury to determine whether the prisoner was prompted by a reasonable and well-grounded belief that he was in danger of losing his life, or suffering great bodily harm.</p>

<p>1. Contracts—work improperly done—damages resulting thes'efrom. In an action to recover the price for threshing a lot of clover seed by the plaintiff for the defendant, it was kdd, if the plaintiff was employed for that purpose he was bound to execute it in a workmanlike manner, and if, through his negligence, want of skill, or defective machinery, the work was done in such manner that the defendant suffered damage thereby, the amount of such damage should be deducted from the price agreed to be paid for the work.</p> <p>2. And though the defendant may have accepted the work done, without complaint at the time, but without having an opportunity of inspection, still it was competent for him to show the defective character of the machinery, and of the work done, and his defense could be made available to the extent of the damage suffered by him on account thereof.</p> <p>3. Question or law or ract—waiver. Where the defendant in an action for work and labor, seeks to defend on the ground that the work ivas so unskillfully and negligently done that he has suffered damage by reason thereof, it is improper for the court to instruct the jury that the presence of the defendant while the work was being done, and his failure to complain at the time, amounted to a waiver of such defense. The effect of those facts, if they existed, should be determined by the jury, not by the court.</p>

<p>1. Evidence of a deceased witness—in what manner it may he proven. The testimony of a deceased witness at a former trial can not be shown by the bill of exceptions taken at that trial, but may be proved by any one who heard and could remember his evidence.</p> <p>2. False imprisonment—evidence in mitigation of damages. In an action to recover for the alleged illegal arrest and imprisonment of the plaintiff, during the late war of the rebellion, on the procurement of the defendant, on the charge of discouraging enlistments in the army, the arrest having been made by a federal officer on an affidavit of the defendant, it is competent for the defendant to prove that the plaintiff had, in fact, discouraged enlistments.</p> <p>3. Such evidence was admissible, not in bar of the action, but in mitigation of damages, as it explained the circumstances of the arrest, and tended to show that the defendant, so far as he participated in it, was not actuated by malice.</p> <p>4. Measure oe damages in such case—whether compensatory only, or vindictive. If, in such case, the arrest of the plaintiff was made on the procurement of the defendant, upon the affidavit of the latter charging the plaintiff with having discouraged enlistments, and the affidavit was not true, the jury should presume malice, and award heavy vindictive damages.</p> <p>5. If, on the other hand, the affidavit was true, and the jury could see that the defendant, in making it, even though he voluntarily furnished it to the officer, and advised the arrest, acted without malice, and from proper motives, they should give only compensatory, not vindictive damages.</p> <p>6. Same—of evidence in aggravation of damages—admissibility of evidence in rebuttal of that which was improperly admitted. In such an action, it is not competent for the plaintiff to prove, in aggravation of damages, that the defendant had charged him with cowardice on the field of battle; and though such evidence was offered, and admitted without objection, that would afford no sufficient reason for admitting evidence on behalf of the defendant that the charge of cowardice was true.</p> <p>7. Where the plaintiff gives in evidence matters which present an issue wholly different from that the jury were impanelled to try, and the defendant is fearful of the effect of such objectionable testimony, he should move its exclusion, instead of endeavoring to counteract its influence upon the jury by the introduction of improper evidence on the same subject, and thereby place in 'peril a verdict in his favor by reason of the error thus committed at his instance.</p> <p>8. Instbuctions. It is not error to refuse an instruction the substance of which is embodied in another instruction given.</p> <p>9. An instruction, a portion of which is so obscure that it is difficult to tell what the entire instruction means, may, for that reason, be properly refused.</p>

<p>1. Evidence—on a question of purchase. In an action of replevin, where the plaintiff claimed title by purchase, as against an attaching creditor of the alleged vendor, it was held, on the question as to whether the plaintiff had, in fact, purchased the property, the jury might consider a previous claim by him, after the attachment was levied, under a chattel mortgage, and other statements in reference to the property, which he denied having made.</p> <p>2. Sales oe personal property—delivery of possession. The rule is, that a purchaser of personal property, in order to acquire title as against creditors of the vendor or purchasers without notice, must reduce it to actual possession before their rights attach.</p>

<p>1. Trade mark—definition thereof. A trade mark is the name, symbol, figure, letter, form or device, adopted and used by a manufacturer or merchant in order to designate the goods he manufactures or sells, and distinguish them from those manufactured or sold by another, to the end that they may be known in the market as his, and thus enable him tó secure such profits as result from a reputation for superior skill, industry and enterprise.</p> <p>2. Same—requisites of a trademark. A trade mark must be so clear and well defined as to give notice to others, and must not be deviated from at the suggestion of whim or caprice.</p> <p>3. It must be attached to the article manufactured, in such a way as to be reasonably durable and visible. The mere declaration of a person, however long and however extensively published, that he claims property, in a word, as his trade mark, can not even tend to make it his property. It is the actual use of the trade mark, affixed to the merchandise of the manufacturer, and this alone, which can impart to it the element of property.</p> <p>4. So where a manufacturer of plows at Moline, Illinois, claimed as a trade mark the words “ Moline Plow,” which he used in his circulars, price lists and advertisements, but did not place them upon the articles manufactured, it was held, this requisite being absent, he had no such exclusive right to their use as would prevent other manufacturers of plows at that place from employing them in the same mode.</p> <p>5. Same—in what a trade mark may or may not consist. Moreover, the plows in reference to which the words “ Moline Plow ” were used, being manufactured in the town of Moline, the words were regarded as a generic term, and as indicating the place at which they were made, and no property could be acquired in words of that character, as constituting a trade mark, to the exclusion of others in their use in connection with plows made by them at the same place.</p> <p>6. One manufacturer of an article at a particular town, whose wares have gained celebrit}', can not appropriate as his own, to the exclusion of every other person in the same place, the name of the place, and thus prevent him from designating his manufactures as of the place where they were actually "made.</p> <p>7. So where a manufacturer of plows at the town of Moline, had been accustomed to brand or stencil upon the beams of his plows, under his name, the words “ Moline, Ill.” and subsequently another manufacturer of plows in the same place, branded plows which he manufactured there, under his own name, with the same words, “Moline, Ill.” it was held there was no violation of any right in the former, because he could not acquire any property in those words which only indicated the place at which the plows were made.</p> <p>8. The name and address of the manufacturer, combined, may constitute a trade mark which will entitle him who adopts it to protection in its exclusive use, but neither the name nor the address, singly, will suffice to be effectual for protection—both must be used.</p> <p>9. And it has been held that where a place has become noted by reason of the excellence of an article manufactured there, another person may choose such place for the manufacture of the same article, for the reason the name has become known in the markets, and with the intention of introducing that name as a part of the description of himself and his goods.</p> <p>10. Same—as to the use of letters and figures. Although by the long continued use of certain letters, figures, words, msrksor symbols, which do not, of themselves, and were not designed to indicate the origin or ownership of the goods to which they are attached, hut only to designate the nature, kind or quality of the different varieties of the article, and because so marked the goods have become known as those of the manufacturer who first used them, such fact can not alter the original meaning of the words or symbols, or the intent With which they were first used, as denoting the name of the thing, or its general or relative quality, or take from others the right to employ them in the same sense.</p> <p>11. So where a manufacturer of plows placed upon them, for the purpose of designating the size, shape and quality of the different plows upon which they were respectively branded, the letters and figures in their combinations as follows: “A No. 1, A X No. 1, No. 1, X No. 1, No. 3, and B No. 1,” it was held, he had no exclusive right to their use for such purpose, but they could be used by any other manufacturer of plows, in the same combinations, to indicate like varieties of the same article.</p> <p>12. Same—of the charracter of imitation which is prohibited. A similarity between two trade marks used by different manufacturers for their goods, although of such a character as to induce a belief in the mind of the public that they belong to, and designate the goods of the same manufacturer or trader, is not, of itself, sufficient ground for a prohibition of the use of such trade mark by him who did not first adopt it. That similarity, to entitle the originator to the protection of the law, must be such as to amount to a false representation, not alone that the two articles bear the same origin, but that the goods to which the simulated mark is attached are the manufacture of him who first appropriated the trade mark. In this consists the essence of the wrong done.</p> <p>13. In this case the party alleging a violation of his trade mark upon plows manufactured by him at the town of Moline, Illinois, had branded or stenciled on the beams, the words, “ John Deere,” in large, heavy capitals, in black paint, on the segment of a circle, with the words, “Moline, Ill.” in a straight horizontal line underneath, in smaller capitals in like black paint,with a dash or flourish between them. The brand or mark upon the other plows, which constituted the alleged violation, was this: the words “ Caudee, Swan & Co.” in smaller capital letters, on a segment of a circle at least two inches longer than that of “John Deere,” and the address, “Moline, Ill.” in still smaller capital letters, on a straight, horizontal line underneath, and a dash between them: Held, that while there was some resemblance between these brands, there was no such similarity as would show that “ Caudee, Swan & Co.” intended thereby to sell their plows as plows manufactured by “John Deere.”</p> <p>14. Same—degree of proof required. Where a person seeks to establish a trade mark, the proof must be clear, leaving the question beyond a reasonable doubt.</p>

<p>1. Trespass—whether it mU lie. In an action of trespass, to recover damages for injury done to plaintiff’s crops, by reason of the horses and mules of defendant being breachy^and entering the plaintiff’s fields, and thereby letting others in not owned by him, it was held, the defendant was not liable, in that form of action, for injury occasioned by the stock not his own, unless they were, at the time, under his management and control.</p> <p>2. Instructions—should not assume facts to be proven. An instruction that assumes certain facts in the case to be proven, is erroneous.</p> <p>3. Same—error in instructions obviated by being qualified in another. If one party procures an erroneous instruction to be given, and, at the instance of the opposite party, another is given, qualifying the former, the two instructions should be considered together, and if, when so considered, the law is correctly laid down, the error in the first should be regarded as corrected. •</p>

<p>1. Assignor—diligence required of an assignee. In an action by the assignee against the assignor of a promissory note, wherein it was alleged that the institution of a suit against the makers would have beeu unavailing, it appeared the makers thereof had committed acts of bankruptcy, and a petition had been exhibited against them in the United States district court for the northern district of Illinois, and an assignee -appointed, who had taken possession of their estate: Held, the rule of diligence imposed by the statute upon the assignees of promissory notes, in order to fix the liability of assignors, did not require the plaintiff to present his claim in the district court; and he was not, by reason of not having done so, chargeable with such laches as exonerated defendant from liability as assignor.</p> <p>2. The presentation of the note by the assignee thereof, in the bankruptcy proceeding, would not be a suit against the makers, or their heirs, executors or administrators, in the sense in which the term is used in the statute, which requires a suit against the maker, etc. for the recovery of the money or property due thereon, or damage in lieu thereof, these latter words being descriptive of a personal action.</p> <p>3. The statute only requires that the assignee of a note, before he can proceed against the endorser, shall use due diligence by proceeding at law against the maker; and the proceedings at law were intended to be in the courts of law in this State.</p> <p>4. He is not required to go into a foreign jurisdiction; and the district court of the United States being created and acting under another sovereignty, the assignee can no more be required to resort to such court, than to proceed against the property of the maker in a sister State.</p> <p>5. Practice in the Superior Court of Chicago—trying a cause out of its regular order. Under the rule of the Superior Court of Chicago, providing that certain cases may be tried out of their order, upon the filing of an affidavit by the plaintiff, or his attorney or agent, that he or she believes the defense is made for delay, and by giving notice, etc. unless it shall be made to appear to the court, by affidavit of facts in detail, that the defense is made in good faith, the only question to be determined, is, the face of the pleadings presenting a legal defense, whether the defense is set up in good faith.</p> <p>6. And the failure of the defendant to verify his special plea, by his. own affidavit, when the plea is of a nature not required by law to be so verified, is not a good and sufficient cause for directing the case to he tried out of its order, within the meaning of the special practice act, the court, in such case, having no power to require it.</p>

<p>1. Contributory and comparative negligence. In an action to recover damages for an injury occasioned by the negligence of the defendant, the age and discretion of the party injured are proper subjects of inquiry by the jury, in determining the relative degree of care, or want of care, as manifested by both parties.</p> <p>2. Ordinary neglect as to a person of full age and capacity, might be gross negligence as to a child.</p> <p>3. And in determining the degree of negligence of a party, the jury should take into consideration his capacity. A child can not be required to exercise as much care and caution as a person of mature years, but only such care as a person of his age and discretion would naturally use.</p> <p>4. In an action to recover for an injury to a boy about twelve years old, occasioned by the alleged negligence of the defendant, it appeared the defendant had placed upbn the sidewalk a number of barrels and counters, in a tottering condition, occupying a considerable portion of the walk, and interfering with a safe passage after night. One of the counters was eighteen or twenty feet long, and the boy, in going from his work to dinner, in passing put his hands upon this counter, apparently making a motion to jump on it, when it fell on him, fracturing his leg: Held, the negligence of the defendant in placing the obstructions on the sidewalk, and permitting them to remain there for several weeks, was much greater than the carelessness of the boy.</p> <p>5. And in an action by the father to recover for such injury, if the injury was serious and permanent, such fact would enhance the damages, which the father was entitled to recover for the loss of services, during minority.</p>

<p>1. Evidence—declarations of a party to Ms attending physician. While the physician, who attended on the plaintiff in an action for assault and battery, after the injury, may testify to the statements of the plaintiff to him as to the part of his person which was hurt, his sufferings and symptoms, etc. yet to give in evidence the plaintiff’s declarations as to how and with what instrument the injury was produced, so as to affect the defendant with having inflicted it in that particular way, is improper.</p> <p>2. Instructions—should leave the issues of fact to he determined hy the jury. In an action for an assault and battery, in which was filed a plea of son assault demesne, an instruction was held to be erroneous, because it withdrew from the jury the consideration of the issue on that plea.</p> <p>3. In the same case, it was held improper to instruct the jury that the assault and battery were not justifiable, even though the plaintiff had previously spoken certain words. The act might have been justifiable, without reference to the fact whether the words were spoken, and whether it was or not should have been left to the jury.</p> <p>4. Same—assuming that punitive damages should, be given. An instruction is erroneous which assumes that the case is of such character that smart money may be given, in assessing the damages.</p>

Appeal.from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. This was an action of covenant, brought by Joshua Larkin and others against George F. Harding and Hezekiah M. Wead.

<p>Appeal from the Circuit Court of Bureau county; the Hon. Edwist S. Leland, Judge, presiding.</p>

<p>1. Contributory negligence—in resped to fire communicated by locomotive to adjacent property. It has been held, that where fire is ignited on the right of way of a railroad, by reason of an accumulation of dry grass and weeds thereon, and communicated to the adjoining fields by the negligence of the owner in not keeping them free from combustible materials, the owner can not recover for the injury thereby occasioned, unless the negligence of the company is greater than his own.</p> <p>2. So in an action for such injury, it is erroneous in the instructions to the jury, to base the plaintiff's right of recovery wholly on the question of the negligence of the company, ignoring the doctrine of contributory negligence on the part of the plaintiff.</p> <p>3. But where the adjoining land, to which fire has been so communicated, is wood land, that fact should he considered by the court in the instructions, as abating the degree of diligence required of the land owner, on account of the greater difficulty of keeping such land clear of inflammable matter.</p>

W. W. Heaton, Judge, presiding. This was an action of trover, brought by Bailey against Godfrey and Charters. The title of the plaintiff to the property in controversy, was derived under a chattel mortgage, executed to him by Charles F. Green, on the twenty-sixth of April, 1869.

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

Rule on an attorney at law, to show cause why his name should not be stricken from the roll. The opinion of the court states, substantially, the facts on which the rule was entered.

<p>1. Cloud upon title—when relief granted. Where a party seeks to remove a cloud upon his title to land, and it appears he has himself no title to the premises, the relief can not be granted.</p> <p>2. So where a party sought relief of that character, claiming title by virtue of a sale under an attachment levied on the defendants’ equitable interest in the premises, which at that time was not subject to attachment, and there being no personal service, the relief sought was denied, the attachment proceeding being void for want of jurisdiction.</p> <p>3. Attachment—-jurisdiction. In order to acquire jurisdiction in an attachment suit, there must be either service on the defendant, or on his property, subject to attachment.</p> <p>4 Same—of an equitable interest in land. Prior to the passage of the act of March 31,1869, an equitable interest in land was not subject to attachment.</p> <p>5. Pleadinh in ohanceby—consto'uction thereof. A party claiming title to a tract of land by virtue of a sale under an attachment, filed a bill in chancery to remove a cloud upon his title. The attachment proceeding not appearing in the record further than as stated in the bill, which alleged that “ the complainant commenced the suit by attachment and attached the land, and that a special execution issued,” it was held, as the bill must be taken most strongly against the complainant, to be the fair intendment that attaching the land was the only execution of the writ, and that there was no personal service.</p>

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

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Bee jamie E. Sheldoe, Judge, presiding.</p>