Volume 56 — Illinois Reports

<p>Appeal from the Circuit Court of Henderson county; the Hon. Abthub A. Smith, Judge, presiding.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

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

Writ of Error to the County Court of La Salle county; the Hon. P. K. Leland, Judge, presiding. This was a suit in chancery, instituted in the court below by Martin Gleason, against Anna Burton.

<p>Appeal from the Circuit Court of Kane county; the Hon. Silvanus Wilcox, Judge, presiding.</p>

Sabin D. Puterbaugh, Judge, presiding. This was a suit in chancery, instituted by Margaret Opp against Daniel Roberts, to compel the conveyance to her of one-half interest in certain lands, and a transfer of a like interest in certain promissory notes held by the defendant. The facts upon which the claim for the relief sought is based, are fully set forth in the opinion of the court.

<p>1. Rescission of contract—in equity—delay by purchaser in making payment. In the year 1857, the owner of a lot of land executed a contract of sale for the same at $11,390.63, one-fourth cash, and the residue in one, two and three years. The purchaser paid only $140.63. In October of the same year, an assignee of the purchaser paid one-fourth the purchase money and received a deed from the original vendor for one-fourth the land. The remaining three-fourths of the purchase money was never paid. In 1866 the original vendor filed his bill in chancery, against his vendee and others claiming under him, to enforce the payment of the purchase money, or the cancellation of the contract in the event of non-payment: Held, the vendor was entitled, after such laches, to have the contract declared forfeited.</p> <p>3. Specific performance — laches. A purchaser of land, who filed his bill for specific performance, had become the assignee of a contract of purchase of the premises at $400, one-fourth cash, and residue in one, two and three years from May, 1857, and the payment of taxes. The assignee, seeking relief, made only one payment on the contract, that due May, 1858. The payments due in 1859 and 1860, were never paid, nor was any tender made until about the time of filing the bill, in September, 1868, nor had the complainant paid any taxes: Held, the gross delay in not performing the terms of the contract, utterly forbid the interposition of a court of equity.</p> <p>S. Parties— Ml for specific performance, by a vendor. Subsequent purchasers from one who holds under a contract of purchase of land, are not necessary, although they are proper, parties to a bill by the original vendor for specific performance.</p> <p>4. Estoppel — cancellation of a contract of sale—rights of subsequent purchase's. A decree declaring a contract of sale of land forfeited, on account of laches on the part of the vendee in making payment, will bar any relief' sought by a subsequent purchaser from such vendee against the original vendor, although such subsequent purchaser was not a party to the suit in which the decree was rendered.</p> <p>5. Specific performance — laches — subsequent purchasers. Where a purchaser of land has been guilty of such laches, that he could not compel a specific performance as against his vendor, a subsequent purchaser from such vendee, would hold no better position.</p>

<p>New trial—verdict against the evidence. In this case the verdict being manifestly against the evidence, the judgment is reversed that a new trial may be had.</p>

<p>Appeal—from a justice of the peace — when it will lie. After a trial in a suit before a justice of the peace, in which the jury failed to agree, the plaintiff dismissed his suit, and the justice thereupon taxed a part of the costs against the defendant: Held, the defendant had a right to appeal from the order of the justice as to costs, not perhaps for the purpose of having the costs re-taxed on the transcript of the justice, but for tbe purpose of a new trial, and after the trial to have the costs taxed by the court.</p>

<p>1. Dedication—for apublia highway—what constitutes. The owner of land at the terminus of a street in a town, laid off an addition to the town, extending from its original limits along on one side of a public road which run through his land, and was a continuation of the street, in the same general direction, but not-so wide as the street. He made a= plat of the addition, which was duly recorded, and on which were lines indicating an extension of the street, but specifying no particular width therefor. The other streets in the addition were made of the same width with corresponding streets in the original town. In the year after laying out the addition, he sold and conveyed that portion of his land which lay on the side of the street first mentioned, opposite the addition, his grantee taking immediate possession and erecting a fence on the line of the original highway. This was in 1843, and the city, for a period of twenty-eight years, acquiesced in such assertion of ownership and continued occupancy of the purchaser and his grantees, in 1847 recognizing by ordinance the fence as the true line of the street, and again in 1857 appointing commissioners to assess the damages for condemning a strip of land inside this fence, which were assessed but never paid. After the lapse of twenty-eight years from the time such purchaser took possession, the city claimed the right to appropriate a strip of his land inside the fence for the purposes of the street, alleging a dedication thereof on the plat of the addition, made by the original owner: Held, the circumstances connected with the laying off the addition and making of the plat left the question of dedication in doubt; but the doubt was resolved against the city, in view of the additional circumstances that individual ownership was asserted and exclusive possession taken the first year after the alleged dedication, and that the city had for twenty-eight years both positively recognized and passively acquiesced in such a construction of the plat as excluded the idea of dedication.</p> <p>3. Highway—abandonment thereof A city claimed the right to appro, priate a strip of land inside the inclosure of an individual, as a part of a road adjacent thereto, on the ground that,the land so claimed was covered by the plat of the road as established by the county; but it appeared that the road, as it was actually staked by the viewers, was laid out upon the line on which the fence of the inclosure was afterward erected, and the road as so staked and fenced had been the recognized highway for more than twenty years, having the full width called for by the survey: Held, the case fell within the principle of the rule, that the public lose their right to a highway where they have abandoned it and accepted another in its stead for such a length of time, and under such circumstances, as to give them a title to the substituted road.</p> <p>3. Same—non-user—presumption of extinguishment. Where ground upon which a highway was laid out, or which was dedicated for that purpose, has been in the open and exclusive adverse possession of the owner of the land for twenty years, and a complete non-user of the easement by the public during that time, an extinguishment will be presumed.</p> <p>4. Chancery—jurisdiction—imjunction. Where a city undertakes, under color of its chartered powers, to take possession of land to which it has no right, on the pretense that it has been dedicated as a public street, thereby inflicting upon the owner a permanent and continuing injury, the proper remedy is by injunction.</p> <p>5. And in such case the jurisdiction of a court of chancery is not limited merely to the granting of an injunction until the rights of the parties can be settled at law, but, having acquired jurisdiction for the purpose of an injunction, the court may retain the case and administer complete relief.</p>

<p>1. Limitation act of 1835. The defendant, in an ejectment suit, relying on the limitation act of 1835, and seven years’ possession of the premises by actual residence, showed a connected chain of title from the general government to himself by patent, and mesne conveyances purporting to convey the fee: Held, such constituted a prima facie title in fee at law, although it was only apparently a good title, and was the kind of title contemplated by that statute.</p> <p>2. And being derived through a patent from the general government, was a title “ deduced of record,” without regard to whether the deeds of the defendant were recorded or not.</p> <p>3. Same — effect of the recording act. Nor was it any objection that the deed first made by the patentee, under which, through sundry mesne conveyances, the plaintiff claimed, was on record when the patentee conveyed to the remote grantor of the defendant and charged him with notice. The recording laws have no effect on questions arising under the statute of limitations.</p>

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

Joseph E. Cart, Judge, presiding. This was an action on the case, brought by Hagerman against Lawrence and others, to recover damages for the wrongful and malicious suing out by the defendants of a writ of attachment, without probable cause, and causing the same to be levied upon the goods and chattels of the plaintiff.

John A. Jameson, Judge, presiding. On the 24th of March, 1856, appellee Gibson, being the owner in fee, of the west £ of the west of south-east quarter of section 24, township 39 north, range east, situate in Cook county, subject to a mortgage made by one Asa Tail and wife, to Denny and Delano, to secure two notes made by Vail, amounting to $2,120, due September 16, 1856, entered into a contract, of that date, with C. W. Clayton and appellant, though Clayton’s name alone was…

Charles H. Wood, Judge, presiding. This action was brought by Cravelin against Demesmey, to recover money paid by the former to the latter on a contract for the purchase of land.

<p>Appeal from the Superior Court of Chicago.</p> <p>The opinion of the court contains a sufficient statement of ' the case.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon Arthur A. Smith, Judge, presiding.</p> <p>This was a suit brought by Sharp against Worden, to recover the balance of the purchase money due the plaintiff on a sale by him of a tract of land, to the defendant.</p> <p>It appears that Sharp, by verbal contract, sold to Worden thirteen and a half acres of land, a tract of eight and a half acres and one of five acres. At the time of the sale Sharp did not have the legal title to'either parcel, but procured conveyances to be made to Worden, which he accepted. The five acre tract Sharp had previously purchased from one Crane, by verbal contract, and after the sale by Sharp to Worden, by agreement of the parties, Crane conveyed to Worden, the latter paying him $50.</p> <p>On the trial below, the plaintiff recovered a judgment, from which the defendant appealed. The defense was, that the contract being verbal, it was within the statute of frauds and could not be enforced by either party.</p>

<p>1. Evidence—construction of words used in a contract—when to he determined hy a jury. A purchased of B a machine, called a double saw bench, to he used in his planing mill; hut, after the machine was ordered, and before it was delivered, formed a partnership with C. A, however, when the machine was delivered, gave his individual note for it. Upon a subsequent dissolution of the firm, C executed to A a bond, by which he undertook to pay all the indebtedness of the firm, and “ all debts due for material used in the construction of the planing mill and building occupied by them: ” Held, in an action by B against C, wherein it was sought to recover the price of the machine, on the ground that the defendant undertook to pay it, among other debts, the bond should have been admitted as evidence, and the jury permitted to decide, in view of all the evidence, whether, by the phrase “ material used in the construction of the planing mill,” contained in the bond, the parties intended to include this machine.</p> <p>2. Parol evidence—when a contract is inwriting. But evidence offered by the plaintiff, to show that the defendant, by the terms of his purchase of A’s interest in the mill, was to pay the debt to plaintiff, was properly rejected, for the reason that the terms of the dissolution were embodied in the bond.</p> <p>8. Action—on a promise to another. The doctrine is settled in this court, that a third party may maintain an action on a promise made to another for his benefit.</p>

<p>1. Parol evidence cannot "be heard to contradict, vary or explain a written agreement. Its meaning must be ascertained from the instrument itself without the aid of extraneous evidence.</p> <p>2. Action—recovery where the contract has not been complied with. In an action brought to recover the balance of the contract price for building a house on the land of the defendant, a portion thereof having been paid, he contending the work was not done according to the terms of the agreement, it was hdd, the plaintiff, notwithstanding he had not performed all his covenants, was entitled to recover such unpaid balance, less any damage resulting to the defendant by reason of such neglect to comply with the terms of the contract.</p>

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

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

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

Daktel B. James, Judge, presiding. This was an action of assumpsit brought by Marks against Hall, on the following promissory note : “ $200. Shaboka Grove, March 28, 1861. Middle of June, after date, I promise to pay to the order of L. Marks, two hundred dollars, value received, at ten per cent interest. “ Wm. Hall.” The declaration contained a special count upon the note, and the common counts.

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

Richard G. Montony, Judge, presiding. This was an action on the case brought by William B. Gillett and Abner Bushee, against the city of Aurora, to recover damages resulting from the flooding of the basement of the Aurora House, in said city, occupied by the plaintiffs, in September, 1867, the flooding occurring, as is alleged, by reason of the gutters on both sides of Main street being filled up, and being otherwise defective.

E. S. Williams, Judge, presiding. This was an action on the case, brought by Thompson against the railroad company, to recover damages for personal injuries sustained by the plaintiff while a passenger on the road of the defendants, the accident occurring, as is alleged, in consequence of the negligence of the company. A trial in the court below resulted in a verdict in favor of the plaintiff for $5,000, upon which judgment was entered. The company appealed.

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

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

William K. McAllister, Judge, presiding. This was an action of trover, brought by Keeler against Hardy, Dailey and Miller. There was a verdict and judgment for the plaintiff. The defendants Hardy and Dailey appealed.

Sabot D. Ptjtebbaugh, Judge, presiding. August 11, 1869, appellants, being bankers at Elmwood, Illinois, received from Dogget, Bassett & Hill, of Chicago, a claim for collection, against one John J. Bose, who had been doing a boot and shoe business at the former place, but, who, on the third of that month, had sold out his stock to W. H. and John Struthers, taking their promissory note of that date, for $845.52, payable to Bose’s order two months after date.

<p>1. Remedy—to recover bade toases impropm'ly collected. If money has been paid for taxes illegally assessed, the proper remedy to recover the same back is by an action for money had and received. That action is applicable where a person receives money, which, in equity and good conscience, he ought to refund.</p> <p>2. Defense — in such action. In an action for money had and received, the party sued may go into every equitable defense upon the general issue; he may claim every equitable allowance, in short, he may defend- himself by everything which shows that the plaintiff, ex mquo et bono, is not entitled to recover.</p> <p>3. Taxes i/rregularrly assessed—whether they maybe recoveredback. Where taxes have been paid upon property legally liable to taxation, it cannot be .recovered back, although the assessment was informal and irregular and not strictly in conformity with the statute, or the statute itself defective in respect to the manner in which the assessment is directed to be made.</p> <p>4. Taxation of national banks by the State — of the mode thm'eof. Whether the shares of national bank stock are listed for taxation by the individual owners, or the capital stock is listed by the bank, a similar valuation and a like burden are imposed, and in whichever mode the assessment is made, there is no wrong perpetrated and no injustice done.</p> <p>6. Same — legality of assessment — m what proceeding may be questioned. While the question of the sufficiency of the law of this State in regard to the mode of assessment of stock or shares in national banks, for taxation, might possibly arise in case of an attempt to enforce the collection of a tax, it cannot properly arise in an action for money had and received to recover back money paid for such a tax.</p>

<p>Appeal from the Superior Court of Chicago.</p> <p>The opinion of the court contains a sufficient statement of the caie.</p>

E. S. Williams, Judge, presiding. This was an action of trespass brought by Blitz against Kuhnen to recover for injuries to the person of the plaintiff, caused by the alleged wrongful and willful act of the defendant. A trial by jury resulted in a verdict and judgment for the plaintiff. The defendant appeals.

Charles H. Wood, Judge, presiding. This action was brought by the town of Pontiac against appellants, for an alleged violation of section 17, article 7, of its charter, and was tried before a justice of the peace and a fine entered against them by said justice, from which an appeal was taken to the circuit court of Livingston county, and by change of venue was taken to Kankakee county, and tried at the April term of circuit court of said county, 1870, and judgment rendered…

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. S. D. Puteebaugh, Judge, presiding.</p>

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

<p>1. Dower—to whom it may he released. Before dower has been assigned, it can only be released to the owner of the fee, or to some one in privity with the title by his covenants of warranty.</p> <p>2. But where the former owner of the fee in land in which a dower right still exists, has conveyed the same, with warranty, he may purchase the right of dower for the benefit of his grantee, however remote, and thus prevent a breach of his covenant.</p> <p>3. Attorney at law—whether he has a lien on the subject matter of the suit for his fees — subsequent purchaser, with notice. Where a widow employed an attorney to prosecute a suit for her dower in lands sold and conveyed by her husband in his life-time, the attorney to have a certain portion of what might be recovered, as his fee and for costs expended by him, and pending the suit the widow released her dower to one who stood in the relation of warrantor of the title, it was held, no lien upon the land could accrue to the attorney by reason of such agreement, although a remote grantee of the fee, for whose benefit the right of dower had been acquired, had notice thereof, because the attorney held no such relation to the title as would enable him to receive an interest in the dower right.</p> <p>4. Nor did any lien accrue to the attorney, independently of the agreement, under any law.in this State. An attorney has no lien on the subject matter of the suit which he is employed to prosecute, that can in anywise impair the right of his client to transfer the same to a third person pendente lite.</p> <p>5. Same — construction of Act of 1869. Under the Act of 1869, providing • for the fees of a solicitor who prosecutes a suit for the assignment of dower, to be taxed as costs therein, no allowance could be made to the attorney in case the complainant should release her right of dower pending the proceeding, because she could not, in that event, recover costs.</p>

John A. Jameson, Judge, presiding. This was a bill filed by appellee against appellant and Tooke, in the Superior Court of Chicago, on the 3d day of August, 1869, to remove a cloud upon the title-of appellee’s land.

Joseph E. G-art, Judge, presiding. This action was brought by Smith against Foster and others, to recover the price of a quantity of skates, alleged to have been sold and delivered to the defendants.

Joseph E. Gaby, Judge, presiding. This was an action of trover, brought by Collins against the railroad company, to recover for a trunk and its contents, alleged to have been delivered to the company as the baggage of the plaintiff, to be transported from Chicago to Walcott, in the State of Iowa.

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

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

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

<p>1. New tbiae — verdict against the evidence. In this case the verdict of the jury being manifestly against rne weight of the evidence the judgment is reversed that a new trial may be had.</p> <p>2. Instructions must be based upon the evidence.</p> <p>3. Bill of exceptions — aided by certificate of the judge. The certificate of the judge who tried a cause below, that the bill of exceptions contains all the evidence, is conclusive, and a suggestion of counsel that the record in such case does not contain all the evidence will not be considered by this court.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah McBoberts, Judge, presiding.</p>

<p>1. Fraud—presumption—proof of fraud. While it is true, that the law never presumes fraud without some evidence, the legal presumption existing that every man is innocent of intentional wrong, and is honest of purpose, until the contrary is proven, yet, in order to show fraud, direct and positive proof is not required; but it may be inferred from circumstantial evidence.</p> <p>2. Where a party obtained goods from another, on credit, by false and fraudulent representations in regard to his responsibility, and subsequently mortgaged them to a third person, the mortgagee afterward taking possession of the goods, by authority of the mortgage, in an action of replevin by the vendor to recover possession of the goods, it was held, in determining the fairness of the transaction between the mortgagor and the mortgagee, if the jury believed, from the evidence, that the latter took the mortgage on the goods for a sum larger than the amount actually owing him by the former, and knew when he took the mortgage that the mortgagor was insolvent at the time he obtained the goods of the plaintiff, and that they were not paid for, such facts and circumstances were proper elements for their consideration.</p>

<p>Evidence—of its sufficiency — to recover counsel fees in suit on injunction bond. In a suit on an injunction bond, conditioned for the payment of all such damages as the defendants might sustain, the only claim for damages was for counsel fees in the injunction suit, and the only proof offered in support of the claim was the opinion of attorneys as to what the services rendered were worth. In the absence of any evidence as to the amount actually paid for their services, it was held, in addition to proof of what such services were worth, in order to entitle the plaintiffs to recover, it should at least have been shown that the solicitors were retained upon a quantum meruit.</p>

<p>1. Specific pebfobmance—laches. On the 5th of October, 1868, a purchaser of land from the agent of the owner, paid §100 on the purchase price, which was §3,917; §1,017 to be paid in cash, and the balance in one and two years. Title to be satisfactory and proved to be so. Objection being taken, however, to the power of attorney under which he proposed to make the deed, a sufficient power was obtained on the 20th of January, 1869, and three times a week, for three successive weeks, he called on the purchaser’s attorney through whom the business had been transacted, and offered to make the deed upon receiving the balance of the cash payment; but the purchaser had withdrawn his money from the hands of his'* attorney, and the latter finally declined to act any further. On the 18th of February, 1869, the agent of the vendor wrote to the purchaser where he then was, some eighty miles from the residence of the former, requesting him to complete the contract. After waiting eleven days and receiving no answer, he again tendered a deed to the attorney, who refused it, and the vendor then sold to a third person : Held, the vendee was guilty of such laehes as to deprive him of any right to a specific performance.</p> <p>2. Same—duty of the vendor to return the money paid, before reselling. It was not required of the vendor, under such circumstances, to refund the $100 paid, in order to be justified in re-selling. It was paid rather as earnest money for which the purchaser was to have credit on the completion of the contract, and the failure to return it did not give to the vendee an equitable right to a specific performance.</p>

<p>1. Appeal — at what stage of a came it mil lie. The order of a court simply overruling a demurrer to a bill in chancery, although the demurrer goes to the merits of the bill, is not a final order or decree from which an appeal'will lie ; and an appeal unadvisedly prayed for and allowed, and perfec ted by the filing of a bond, at that stage of the cause, would have no effect whatever in staying further proceedings in the cause, but, notwithstanding such appeal, the court could properly render a final decree on the demurrer, and proceed to a hearing as to other defendants.</p> <p>3. Payment of a judgment on a special assessment—its effect. A judgment was rendered upon a special assessment levied upon a lot of ground, and a precept issued thereon, after which the owner paid the amount of the judgment, and costs, to the collector, notwithstanding which, the latter proceeded to sell the lot under color of the judgment, having, in error, credited the money paid, upon the adjacent premises : Held, the payment operated to extinguish the judgment, and the subsequent proceedings under it — the sale and certificate of purchase issued thereon — were absolutely void.</p> <p>3. Cloud opon title—claim under a void sale on special assessment. In such case the owner of the lot so improperly sold may, under the general jurisdiction in chancery, if he is in actual possession, or, under the statute, * whether in the occupancy of the premises or not, resort to his bill in equity to remove the cloud upon his title occasioned by such illegal proceedings, by having them declared invalid, and enjoining any further action under them. Nor is the jurisdiction in chancery, in that regard, at all afíected by the fact that the owner could, as provided by statute, on presenting his receipt for the money paid upon the judgment, have the collector mark opposite his lot on the list of lots sold, “ sold in mistake.”</p>

This was a bill in chancery filed by Laura L. and Samuel Billings, Henry H. Gage being made defendant, to set aside a judgment of the county court of Cook county, for taxes, and that the sale thereunder, together with the deed to the premises made in pursuance thereof, and all proceedings connected therewith, might be declared null and void.

Silvanus Wilcox, Judge, presiding. This was an action brought by Pulfer against the city of Aurora, to recover for injuries to the plaintiff occasioned, as alleged, by the negligence of the defendant in permitting obstructions in a street of the city. A trial by jury resulted in a verdict for the plaintiff, upon which the court entered judgment, and the defendant appeals.

<p>1. Construction of statutes. Where the intent is plain to confer a privilege upon those whose rights are to be affected by a statutory proceeding in derogation of the rights of property, and the language is doubtful as to the extent of the privilege, it is the duty of courts to give to it the largest construction in favor of the privilege which the language employed will fairly permit.</p> <p>2. Assessors, board of, in Chicago — of the duration of their sessions— construction of the city charter. So the provision in the charter of the city of Chicago, which, after requiring the board of assessors to fix a day for their meeting to revise and correct the assessments, declares that “ they shall continue in session during the business hours of each and every secular day for a period of twenty successive days,” must be construed as meaning twenty successive secular days.</p> <p>3. Evidence — in suit for taxes, in city of Chicago. In a suit, under the charter of the city of Chicago, for taxes, the defendant objected that the real estate tax list, which, with the warrant attached thereto, was the basis of the suit, was not a copy of the tax list as revised by the board of assessors ; that the list as revised, and after the time fixed by statute for its revision had expired, was changed, amended, abated and altered; and that the warrant was materially altered after it was received by the city collector : Reid, it was competent for the defendant to inquire of the collector and tax commissioner, called by him as witnesses, as to their knowledge of such alterations, whether or not any had been made; whether the list and warrant had been so changed as to the description and valuation of any of the property in any respect, and if so, what changes had been made. Such material alteration might have been made as would vitiate the tax of the defendant, and the onus probandi being on him, he had the right to prove it. If abuses had crept in, from which the tax lists were altered after the revision was completed, no matter by whom done, the defendant had the right, and it was the duty of the court to permit him, to investigate and expose them. Such inquiries were competent for the purpose of showing that alterations had been made, so affecting the rights of the defendant as to require the production of the original books, assessment roll and warrant to complete the proof, and to lay the proper foundation for their com pulsory production; and if the books were already in court, then as preliminary to the investigation.</p>

Appeals from the Superior Court of Chicago. These were suits in the cotirt below, for taxes, in which judgments were rendered against the several defendants, who thereupon took these appeals.

<p>Appeal from the Superior Court of Chicago.</p> <p>This was a suit in the court below, for taxes, in the city of Chicago, in which a judgment was rendered against Wright, the appellant.</p>

Arthur A. Smith, Judge, presiding. This was a prosecution against ¡Naylor, to recover the penalty for an alleged violation of an ordinance of the city of Galesburg, prohibiting the sale of spirituous liquor. The proceedings were commenced before a justice of the peace, and removed into the circuit court by appeal, where a trial resulted in favor of the city.

This was a suit in chancery, instituted by James E. Tyler, George Field and John F. Eberhart, trustees of the Norwood Land and Building Association, against George W. Beed, William Kelsey Beed and the Illinois Land and Loan Company, a corporation, to set aside, as invalid and a cloud upon the complainants’ title, a sale for taxes, and a deed thereunder, of a certain tract of land, described as follows: “ Except the railroad, south of McHenry road, fractional north-west…

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

S. Williams, Judge, presiding. This was an action of assumpsit, brought by Walter G-. Uewhoff. the appellee, in the Cook county circuit court, against James K. Lake and Charles B. Farwell, as copartners, the appellants, to recover for work and labor alleged to have been done by him for them on the Washington street tunnel, in Chicago. The declaration contained the common counts for work and labor.

John A. Jameson, Judge, presiding. This was a suit in chancery, brought by Peter and John Eich against Asahel Gage, to remove a cloud, in the shape of a tax deed to the defendant, upon complainants’ title to certain premises. The defendant filed a.demurrer to the bill of complaint, which was overruled by the court.

<p>Application to strike the name of an attorney at law, from the roll, for alleged misconduct in office.</p>

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

Charles H. Wood, Judge, presiding. This was an action brought by Pineo against the railroad company, to recover the value of a cow belonging to the plaintiff, alleged to have been killed on the defendants’ road. A trial by jury, at the June term, I860, of said court, resulted in a verdict and judgment for the plaintiff. The defendants appeal, and assign for error, that the evidence fails to connect them with the injury.

John A. Jameson, Judge, presiding. This was a bill in chancery to annul certain judgments for special assessments, and to vacate the sales made in pursuance thereof, and compel the surrender of the certificates of purchase, for the reason that they were clouds upon the respective titles of the complainants.

<p>Excessive damages—for an unlawful arrest and imprisonment. A private person procured the arrest of a party on a charge of larceny. The arrest was made about noon, and the prisoner was kept in confinement until about eight o’clock the same day, when he was released on bail. Several days afterward he was examined before a magistrate and dis charged. In' an action by the accused, against the party procuring his arrest, for an alleged unlawful arrest and imprisonment, it was shown by the proof that the defendant fully believed the plaintiff was guilty, and had some strong circumstantial grounds for so believing, and caused the arrest in entire good faith: Held, a verdict for the plaintiff for §2,000 was altogether unreasonable and excessive, and for that cause the judgment was reversed.</p>

John A. Jameson, Judge, presiding. This was a bill in chancery filed by Brown against Hurd, Dunlop and Wright, for a new trial in an action at law. The bill was dismissed in the court below on a demurrer by Hurd. The complainant appeals.

<p>Comparative negligence. In an action against a telegraph company for the loss of the plaintiff’s horse and wagon, occasioned by the alleged negligence of the defendants’ servants, while engaged in repairing a telegraph line on one of the streets in the city of Chicago, in so handling a broken wire as to strike the horse, thereby frightening him and causing him to run, resulting in his death, it appeared the driver had left the horse, attached to a wagon, standing loose in the street, and, if the accident was attributable to the cause alleged, the negligence of the driver, in failing to secure the horse properly, or have him under his control, was so much greater than that of the defendants, that there could he no recovery.</p>

Edwin S. Leland, Judge, presiding. This was an action of debt, brought in the court below by the iEtna Insurance Company against Michael Byrne, as surety upon the following bond: “ Know all men by these presents, that we, E. B. Mason, as principal, and M. Byrne and W. T. Mason, as sureties, all of La Salle county, and State of Blinois, are individually and separately held and firmly bound unto the ¿Etna Insurance Company, of Hartford, each in the sum of $1,000, lawful money…

<p>1. Mandamus against a city to pay—effect of stipulation. In a proceeding by mandamus to compel a city to pay a claim alleged to he due to the relator, a peremptory writ was awarded, requiring the city to pay the claim. It was objected that the command should have been to levy a tax to pay the claim, not a peremptory order to pay. But the parties had stipulated that if, upon a decision of the cause, the court should he of opinion the relator was entitled to any relief against the city, by any remedy, then a peremptory writ might issue for the sum claimed, the writ to be in such form as the court might think proper, and this obviated the objection taken.</p> <p>2. Special assessments in Chicago — of a new assessment. Where the proceeds of a special assessment, levied for the purpose of constructing public improvements in the city of Chicago, become insufficient for the purpose indicated, by reason of the failure of the city to collect the amount assessed upon particular property, there can he no new assessment upon the other property embraced in the original assessment, which is not delinquent, to supply such deficiency — not under section 36 of chapter 7 of the city charter, because that section confines the new assessment to delinquent property.</p> <p>3. Nor under the 35th section of the same chapter, because the commissioners of the board of public works and the common council, the tribunal appointed by the city charter to determine in the first instance what proportion of the cost of the contemplated improvement should be assessed, in the way of special benefits, upon each piece of property, having acted, and the property owners acquiesced and paid the amount, the same tribunal can not be allowed to review their own action for the purpose of supplying such deficiency.</p> <p>4. Cohtbacts with a city—where the specific mode of payment can not be made available. An individual entered into a contract with the city of Chicago, to execute certain "public improvements, in the way of curbing, filling and macadamizing a street, the city agreeing to pay for the same when the work was completed and accepted, and when the special assessment, levied or to be levied for the same, should be collected. A part of the assessment could not be collected, for the reason that the city had, by contract with the owner of the property upon which it was levied, expressly exempted it from such assessments, and the assessment was, therefore, to that extent void: Held, the condition of the contract to pay when the assessment should be collected being impossible and void, the promise, to that extent, was single and absolute, and the contractor having no notice of such void assessment at the time he assented to such condition, would have his remedy against the city to recover what he would have been entitled to had the entire assessment been valid.</p> <p>5. If a person promise to pay a sum of money when he shall collect his demands of another, then, if it appear that he had no demands, or if he have, and fail to use due diligence to collect them, in either case the promise may be enforced as absolute.</p> <p>6. Same — effect of cm'tain provisions of the cha/rter of the city of Chicago. Section 17 of chapter 6 of the charter provides, that “ any persons taking any contracts with the city, and who agree to be paid from special assessments, shall have no claim or lien upon the city in any event, except from the collections of the special assessments made for the work contracted for.” But this does not preclude the courts from determining the legal effect of a contract to be, that where the city has no such assessments as it purports to have, the party is to be deemed as not so agreeing.</p> <p>7. Nor does the construction, that the contractor does not agree to be paid out of assessments which can not be collected, operate to render the contract void, under a clause of the same section, which declares that “ no work to be paid for by a special assessment shall be let, except to a contractor who will so agree.” That clause is merely directory.</p> <p>. 8. Intebest— against a municipal corporation. A municipal corporation is not liable to pay interest, except by express agreement so to do.</p> <p>9. Same—what amounts to an agreement to pay interest. Where a person took a contract to do certain work for a city, and to be paid therefor from special assessments, an agreement by the city, that the contractor should receive the damages which the city might collect of the property owners in respect of such assessments, is not equivalent to an agreement to pay interest.</p>

<p>Appeal from the Circuit Court of De Kalb County; the Hon. Theodore D. Murphy, Judge, presiding.</p>

Hiohabd G-. Montony, Judge, presiding. This was an action of assumpsit, brought by Price against Dunning. A trial by jury resulted in a verdict for the plaintiff, on which the court entered judgment.

<p>Special assessmeht — cmiificate of publication. A certificate of publication of the notice of making a special assessment by the Board of Public Works in the city of Chicago, or that of the application for confirmation thereof by the common council, is fatally defective if it fails to state the date of the last paper containing the notice, or something equivalent thereto, and the objection goes to the jurisdiction of the court, and will defeat an application for judgment.</p>

<p>Appeal from the Circuit Court of Stephenson county; the Hon. Benjamin E. Sheldon, Judge, presiding.</p> <p>The opinion contains a sufficient statement of the case.</p>

<p>1. Juror—competency—Timing a “ leaning ” against one of the parties. A juryman who, on his voir dire, was asked if the evidence were evenly balanced which way he would he inclined to find, answered that in such case he would “ lean against the defendant: ” Held, such juryman was incompetent, and it was error to refuse his challenge by the defendant.</p> <p>3. Nor would the fact that such juryman announced himself Impartial, in the slightest degree affect the question of his competency.</p> <p>3. Neither could instructions from the court correct the bias of jurors who swear that they incline in favor of one of the litigants.</p> <p>4. Witness — refreshing Ms recollection. A witness in giving testimony may make use of a copy of an original memorandum to refresh his memory. But, unless he can give a satisfactory reason for using the copy, that fact might impair the weight of his evidence with the jury—would go to the credit, and not to the competency of his testimony.</p> <p>5. Before the witness, however, can be permitted to refresh his memory from the copy, he must be clear and explicit in his evidence that it is truly transcribed from the original, and that the original was correctly made and was true when it was made.</p> <p>6. If a witness has no recollection of the circumstances, and can only say they are true because he finds them on his memorandum, it would not be proper to permit him to either read or speak from the memorandum.</p> <p>7. Railroads—omission to give signal at highways—proof of highway required. In an action against a railroad company to recover a penalty for the neglect of the defendants to give the signal required by the statute when crossing a public highway with their engine and train, it was held, the plaintiff was bound to prove, before he could recover, that a highway existed at the point alleged, and it was error for the court to refuse to so instruct the jury.</p> <p>8. Same—what will be sufficient proof. Evidence, however, that a road was there, used by the public, and recognized and repaired, so far as repairs were needed, by the officers having charge of highways would, pri/ma facie, prove its existence. Though, in case defendants desired, the jury should be instructed as to the effect of such evidence, and thus prevent all possibility of its misleading them.</p> <p>9. Pleading — declaration against railroad company for omission to give signals. It is not necessary in such actions, to authorize a recovery, to specify in the declaration the trains the engineers of which were guilty of a violation of the statute. Neither is proof of the numbers or description of the engines drawing the trains omitting to give the signals material to a right of recovery.</p> <p>10. Qui tam action—control of the legislature over the penalty. A person suing qui tam has no vested title in a penalty until he, by a recovery, reduces the claim to a judgment.</p> <p>11. And it has been held that the legislature might remit a penalty, even after verdict and before judgment.</p> <p>12. So in an action against a railroad company to recover for omissions on the part of the defendants to give the signal required by statute at the crossing of a public highway, instituted under the one hundred and thirty-eighth section of the railroad law of 5th November, 1849, it was held erroneous to instruct the jury that if the plaintiff had proved his case they should find a verdict for $50 on each count in the declaration, the legislature having, previous to the trial, by the act of 27th February, 1869, so far changed the penalty of $50 for each omission, given by the act of 1849, as to make it discretionary with the jury to give any sum not exceeding $100, for each omission. For, although it may be the legislature had no power to increase the penalty after the omissions occurred, yet, having seen proper to give the power to decrease the amount below the $50 given .by the former act, such instruction was therefore improper.</p>

E. S. Williams, Judge, presiding. This was a suit in chancery, brought by appellant against appellees.

<p>1. Motion—must be preserved by bill of exceptions. The action of the circuit court in overruling a motion to transfer a case to the United States circuit court, under the act of congress of 1866, unless the motion and the accompanying papers are made a part of the record by the certificate of the judge who heard the cause on the circuit, will not be reviewed on error.</p> <p>2. The bond required to be presented at the time of making such a motion does not become a part of the record simply by being filed by the clerk and copied into the transcript of the proceedings in the cause.</p>

<p>1. Special assessments—in the city of Chicago—by whom to be determined— validity of an ordinance in that regard The law on the subject of special assessments in the city of Chicago, for public improvements, places the responsibility of prescribing what improvements shall be made, and the mode, manner and. extent of them, with the common council. There is no authority for leaving it to the discretion of the Board of Public Works to determine either the mode, manner, or extent of the improvement, and an ordinance which undertakes to vest such discretion in that board is void.</p> <p>2. So where an ordinance provided that a certain street should be curbed, filled and paved, "excepting such portions of the above described work which have been already done in a suitable manner: ” Held, the ordinance assumed that a portion of the work upon the street designated had already been done in a suitable manner,'but what portion of it had been so done was left to the discretion of the Board of Public Works to determine, and the ordinance was therefore void.</p> <p>3. Same—what character of defense allowed. The defense which is allowed to property owners, upon an application for judgment upon a special assessment, may embrace every thing which shows that the tax or assessment to collect which the proceeding was instituted, ought not to be collected.</p> <p>4. So it is competent in such a proceeding for a property owner to set up, as a defense, that his property was damaged by the work in question, and that being so, an assessment upon it for benefits was necessarily fraudulent.</p>

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

<p>1. Interest—w7ien chargeable against a trustee—where there we contesting claimants of the fund. The first proceeds of an assignment made for the benefit of creditors were paid into the hands of a third person, to be by him applied in satisfaction of a certain preferred debt. Such person refused to pay the money to the holder of that debt, who was entitled to it, on being notified not to do so by a party who was security therefor, and to whom the debtor had given his notes prior to the assignment, in consideration of such securityship. An assignee of these notes thereupon filed a bill in chancery to compel the payment of the money to him, and the holder of the debt upon which the money ought to have been applied, filed his cross-bill, asserting his rights therein. After several years’ delay it was agreed the money should be paid to the complainant in the cross-bill: Held, the party who thus retained the money in his hands during all this time, should be decreed to pay interest thereon to the party entitled to the money, at six per cent, from the time the latter filed his cross-bill. When the opposing claimants were in court asserting their respective claims, the party holding the disputed fund could have relieved himself from the charge of-interest by bringing the money into court to abide the event of the suit, which he did not do.</p>

<p>1. Railboads—what constitutes the line of a railroad, for purposes of delivery of freight. In a proceeding, by mandamus, to compel a railroad company to deliver at the elevator or grain warehouse of the relator, in the city of Chicago, whatever grain in bulk might be consigned to it upon the line of their road, it appeared the company entered the city from different points upon separate tracks, these separate tracks or lines of road being called divisions. The elevator was situated upon a track used by the company in connection with the business of one of those divisions exclusively, but could be reached from the other division, though by a very indirect route, and subjecting the company to great loss of time and pecuniary damage in the delay that would be caused to their regular trains and business on the latter division. It was held, the roads constituting these different divisions, though belonging to the same corporation, and having a common name, were, for the purposes of transportation, substantially different roads, constructed under different charters, and the track upon which the elevator in question was situated, having been laid for the conveniehce especially of one of those divisions, and only approachable from the other under the difficulties mentioned, it could not be regarded that the elevator was upon the line of the latter division in any such sense as to make it obligatory upon the company to deliver thereat freight coming over that division.</p> <p>2. But the track upon which the elevator in question was situated was owned and used by the respondent company and another company in common, and was a direct continuation of the line of one of the respondent company’s divisions, and of easy and convenient access from that division, and was used by the respondent, not only to deliver grain to other elevators thereon, some of which were more difficult of access than that of the relator, but also to deliver lumber and other freight coming over such division, thus making it not only legally, but actually, by positive occupation, a part of their road. So it was held, that in reference to grain coming over that division, the track upon which the relator’s elevator was situated was to be regarded as a part of the respondent’s line of road, and it was their duty to deliver such grain to that elevator, if consigned to it.</p> <p>3. Same—of reasons for refusing to deliver gram in bulk to any elevator to which it is consigned. Where grain in bulk is consigned to a particular elevator on the line of a railroad, it is no sufficient excuse for the company to refuse soto deliver it, that it can not do so without large additional expense caused by the loss of the use of motive power, labor of servants, and loss of use of cars while the same are being delivered and unloaded at such elevator, and brought back, for it is precisely that expense for which the company is paid its freight.</p> <p>4. Same — of injurious discriminations in the delivery of freight, by means of contracts. Railway companies are common carriers, and, as such, they owe important duties to the public, from which they can not release themselves, except with the consent of every person who may call upon them to perform them. Among these duties is the obligation to receive and carry goods for all persons alike, without injurious discrimination as to terms, and to deliver them in safety to the consignee, unless prevented by the act of God or the public enemy.</p> <p>5. So where a railroad company set up as a defense, in a proceeding by mandamus, to compel them to deliver to the elevator or grain warehouse of the relator, whatever grain in bulk might be consigned to it upon the line of its road, that they had entered into contracts with the owners of certain other elevators at the same point for exclusive delivery to the latter to the extent of their capacity, it was held, such contracts could have no effect when set up against a person not a party to them, as an excuse for not performing toward such person those duties of a common carrier prescribed by law.</p> <p>6. Same—right of a railroad company to prescribe their mode of carriage and delivery by their own usage or rules. A railroad company can establish no custom inconsistent with the spirit and object of its charter. It can make such rules and contracts as it pleases, not inconsistent with its duties as a common carrier, and any general language used in its charter in respect to its powers, in that regard, must be construed with that limitation.</p> <p>7. So where a railroad company sought to evade the receiving, and delivery of grain in bulk to a particular elevator, to which it was consigned, on the ground that it had the right to establish its own usage in that regard, and it never having held itself out as a carrier of grain in bulk, except upon the condition that it might itself choose the consignee, this had become the custom and usage of its business, and itcouijl not be required to go beyond this limit, it was held, the company could make no such injurious or arbitrary discrimination between individuals in its dealings with the public.</p> <p>8. Mandamus—when the proper remedy. The writ of mandamus is the proper remedy to compel a railroad company to deliver to a particular elevator whatever grain in bulk may be consigned to it upon the line of its road.</p>

<p>Writ of Error to the Superior Court of Chicago.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

Theodore D. Murphy, Judge, presiding. This was an action of forcible detainer brought before a justice of the peace by William Webster against Henry Allen to recover possession of certain premises. Upon trial had judgment was rendered against the defendant, who appealed to the circuit court, where a trial by jury resulted as before, in a verdict and judgment for the plaintiff. The defendant appealed.

<p>1. EAXLtm® of consideration — notice of to assignee — what constitutes. A promissory note contained the following clause: “ This note is given for part of the purchase price of the property, on lot 3 on block 15, in the original plat of the city of Galesburg, Knox county, Ill., lately occupied by A. Thorsalle : ” Held, while such clause in the note fully notified the assignee or purchaser of the true consideration, it was not of itself sufficient to advise him that there was or would necessarily be a failure of the consideration, but it was evidence, .in connection with other evidence, to be- considered by the jury on the question of notice. . . .</p> <p>2. Notice — what will constitute. Ordinarily, if the facts would put a prudent and cautious person on inquiry, and the party willfully shuts his eyes against the lights to which his attention is directed, and which, if followed, would lead to a knowledge of the true facts, he must suffer the consequences of his own negligence.</p> <p>3. Instructions—need, not le repeated. It is not error to refuse an instruction wherein the principle sought to be announced is substantially contained in another instruction given.</p>

<p>Special assessments in Ghicago—by whom to be determined — validity of an ordinance in that rega/rd. An ordinance of the common council of the city of Chicago, directed that a certain street should be curbed, filled and paved, " excepting such portions of the above described work which have been already done in a suitable manner, said work to be done under the superintendence of the board of public works, conformably to the drawing prepared by said board, and hereto annexed.” There was nothing in. the drawing referred to in the ordinance, nor in any of the papers or pro. ceedings in the case, which was an application for judgment upon an assessment, to define what portions of the work had been done in a suitable man ner, but the ordinance left the determination of that question to the discretion of the board of public works, and was therefore void.</p>

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

<p>1. iNSTTBAisrCE — of mistakes or omissions i/n the application, when made by the agent of the company — estoppel. Where an insurance company issues a policy, relying entirely on its own knowledge of the facts connected with the property insured, and dispensing with any information from the assured, the agent of the company having himself, without any communication at the time with the assured, made out the application and signed the name of the assured to it, the company will be precluded from denying the truth of any statement in the application, or setting up any mistake or omission in the same.</p> <p>3. Where matters set up in avoidance of a policy, are acts and omissions of the company’s agents, which took place before the delivery of the policy, and would render it invalid, by its terms, at the time of delivery, they can not avail the company in their defense. The issuing of such a policy as and for a valid policy, and taking the premium for it as such, is a representation that it is a valid policy, and the company would be estopped by law to say or show the contrary. It is an estoppel in pais.</p> <p>3. Same — who will be considered an agent of the company. A property owner applied to an insurance agent for additional insurance. This agent wrote to another insurance agent, who resided at another place, on the subject. The latter replied that he might make out an application, and a correct diagram and full description of the property, and he would forward it to a company of which he was agent, for their approval or rejection. The first agent thereupon wrote the application and signed the name of the applicant to it without any communication with the latter at that time, and sent it to the other agent, who forwarded it to his company. A policy was returned to the agent who forwarded the application to the company, and was sent by him to the agent who first solicited the insurance, who delivered it to the assured, and received the premium. This soliciting agent had previously procured insurance on the same property, and was familiar with it: Held, although the agent to whom the application was originally made, and who wrote the application, was not employed as their agent by the company who issued the policy, yet he must he regarded as acting as their agent in this particular case, and not as the agent of the assured.™</p> <p>4. The policy provided " that any person other than the assured, who may have procured this insurance to be taken by this company, shall be deemed the agent of the assured named in this policy, and not of this company, under any circumstances whatever, or in any transaction relating to this insurance.” This clause was held not to have the effect to change the fact, that the agent who originally furnished the application was not the agent of the assured.</p> <p>5. Moreover, that clause was not intended to apply to a case where the company itself took the insurance, without the procurement of another, as was considered to he the case in this instance.</p>

Erastds S. Williams, Judge, presiding. On the 18th day of Uovember, 1868, McCausland caused a warrant to be issued by a justice of the peace, and Wonderly to be arrested thereon, on a charge of larceny. On the first of December following, Wonderly, on being brought before the justice, was discharged from custody, no witnesses appearing against him; whereupon, Wonderly brought this action for malicious prosecution.

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

E. S. Williams, Judge, presiding. This was an action brought by Baybould against Wilson, to recover for damages resulting to the plaintiff by reason of the alleged, false and fraudulent representation of the defendant, that he was the owner of water lot 45, in Kinzie’s Addition to the city of Chicago, whereby the plaintiff, relying on such representation, was induced to accept from the defendant a lease of a part of the premises, of date May 1,1867, for -five years, and…

<p>Contract—construction thereof—sale of goods. A party wishing to purchase tanned sheep skins, wrote to a manufacturer as follows: " I will accept of the proposition made in your favor of the 20th inst. * * This, of course, contemplates A No. 1 skins in quality and size, with the privilege of returning skins that I can not use.”</p> <p>The letter to which this was a reply, simply contained a proposition on the part of the manufacturer to sell and furnish to the other party, all the skins he might make that season, up to a certain number, at a stipulated price.</p> <p>The manufacturer responded: " Will do the best for you as regards the quality of skins, and make the same as last year, with what improvements can be madq: ” Held, the extent of the agreement on the part of the seller was, that the quality of the skins should be equal to those made the year before, with the privilege reserved to the buyer to return such as would not answer his purpose; and if the buyer, upon a full and fair inspection of the skins delivered to him, with a knowledge of their size and quality, elected to retain them, and not to avail of his privilege to return them to the seller, he could not afterward be heard to complain that they were not in accordance with the terms of the contract.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gaby, Judge, presiding.</p> <p>The opinion of the court contains a statement of the case.</p>

<p>Special assessment in Chicago — what defenses availing. Upon an application for a judgment upon a special assessment in the city of Chicago, it is admissible to prove as a defense thereto, “ that the commissioners, in making said assessment, knowingly and willfully assessed objector’s real estate at more than its proportion of benefits to be conferred by said improvement; ” and that the “ commissioners assessed certain real estate benefited, for an amount grossly and very much less than it was benefited, and, in so doing, increased the benefits assessed against objector’s real estate.”</p>

Charles H. Wood, Judge, presiding. This was an action of forcible detainer, to recover possession of certain premises, brought by Hiram Yennum against Thomas J. Yennum.

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

<p>Writ of Error to the Circuit Court of Livingston county; the Hon. Charles H. Wood, Judge, presiding.</p>

Writ oe Error to the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding. This was a hill in chancery to foreclose a mortgage executed by George W. and Charles S. Fredericks, to secure the payment of three certain promissory notes, by them signed, each for the sum of $333.33|-, all dated July 7, 1860, drawing six per cent interest per annum, and given for the purchase money of the land in said mortgage described.

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by Crawford against Walker, on a certain promissory note executed by the latter in favor of the former.

<p>1. Evidence—deüa/ratione of an agent. Before the declarations of an agent can ever be admitted as evidence, it must appear that, at the very time of making them, he was transacting or doing something about the business of his principal, so that his acts and declarations become and form, of themselves, a part of the Tee gestm. Under such circumstances the acts and declarations of the agent may be proved, as any other affirmative fact in the case, but not otherwise.</p> <p>2. If a fact rests in the knowledge of the agent, which is material to the issues between the parties, the party desiring such testimony must call the agent himself as a witness.</p> <p>3. A being indebted to B, there being a controversy as to the amount actually due, offered the sum of $300 in full satisfaction of the debt, which B refused to accept on those terms, but was willing to receive it and credit the same on their general account. Thereupon A informed B that he would deposit $300 in bank where he could get the same whenever he concluded to take it in full payment and discharge of his entire claim, which he soon afterward did, in accordance with his proposition, subject to the order of B, who drew the money out of the bank to his own use: Held, in an action by B against A, to recover the balance of his claim, on the question whether he received the money in full discharge and satisfaction thereof, or whether he received it only as a partial payment on his account, that the testimony of the plaintiff as to a conversation he had with the banker, on the street, before he drew the money, in substance that, on asking the banker whether the money had been deposited to his credit, he replied it had, and in answer to the question whether there were any conditions attached to it, that there were not, -was inadmissible. Admitting the banker was the agent of the defendant for the purpose of paying out the money, still his declarations at the time specified, and under the circumstances, were inadmissible as original evidence.</p> <p>4. Tendee—whether alar. And an instruction, which, in substance, directed the jury, that if defendant tendered to the plaintiff the sum of $800, on condition he would accept it in full satisfaction of his claim, yet if the jury believed the defendant afterward, by himself or his agent, let the plaintiff have the money without an agreement that it should be received in full satisfaction of the claim, then it would be no bar to a further recovery if more was due, was hold erroneous, as tending to mislead the jury into the belief that some special agreement was necessary to const! tute a bar; the law not requiring any special agreement to that effect. If the plaintiff received the sum thus tendered, on the terms proposed, the law would imply the agreement from the acts of the parties.</p> <p>5. If a party tender to another a certain sum of money in full satisfaction and discharge of a disputed claim, and the other party receive it on the terms proposed, it will constitute an effectual bar to any,further recovery on the same account.</p> <p>6. It is always a question of fact for the jury whether the money was tendered in full satisfaction and discharge of the claim, and whether it was received on the terms proposed, by the party to whom it was tendered.</p> <p>7. If, however, a party should receive money under a misapprehension of the terms under which it was tendered, he can always relieve himself from the consequences by offering to pay back the money before he institutes his suit.</p>

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

<p>Appeal from the Circuit Court of Iroquois county.</p>

Writ of Error to the Superior Court of Chicago; the Hon. Joseph E. Cart, Judge, presiding. This was an action of covenant, brought by Scoville against Franklin L. Babcock, Rudolphus Babcock and Daniel L. Boone, to recover rent alleged to be due to the plaintiff, from the defendants jointly, as assignees of the lessee of certain premises.

<p>1. Evidence—comersation between agents—admissibility of, as original evidence. Mere casual conversations between two agents in regard to the business of their respective principals, not made at a time when they were transacting any business of their principals so as to make the conversations a part of the res gestee, are not admissible as original evidence.</p> <p>2. Setting aside default — disweMonarry. The power of setting aside defaults, as a general rule, is a discretionary one, and the court exercising it may impose upon the party guilty of laches such terms as it may deem equitable and just under all the circumstances, and its action will not be reviewed in the appellate court.</p> <p>8. Costs ■—on a trial after judgment by default set aside. Where, upon motion of a defendant, the court set aside a judgment rendered against him by default, and leave was given him to plead, upon the condition that he would pay all costs to date, and deposit in court the amount of the judginent, and upon trial the plaintiff recovered a less amount than the former judgment, it was held, the deposit in court of the amount of the judgment, and the failure of the plaintiff to prove that he was entitled to its full amount, could not render him liable for costs, as in case of a refusal to accept a proper tender.</p>

<p>. 1. J)ew trials— Tiowmany maybe granted—construction of tTie statute. The statute which provides that no more than two new trials shall be granted in the same case, has special application to suits in the circuit court, and does not operate to restrict the power of the appellate court in reversing judgments in the same case any number of times., In this case, a third verdict was set aside hy this court because it was not supported by the evidence.* </p> <p>2. Amendment oe pleadings —- erasures and interlineations. The practice of amending pleadings by erasures and interlineations ought not to be tolerated by the courts. A paper thus disfigured should be stricken from the files.</p> <p>8. Agency-—negligence. A person having title papers to land placed in his hands as agent and attorney, with authority to effect a sale of the land, intrusted the papers to a third person for examination, and with a view of making a sale to him. The party so intrusted with the papers, being charged with some crime, absconded and took the papers with him: Held, this act of the agent, which resulted in a loss of the papers, was not negligence on his part, so as to impose any liability upon him therefor.</p>

W. W. Heaton, Judge, presiding. This was a suit in chancery, instituted in the court below by Peter Bressler and Sabrina Bressler, his wife, against William McCune and William A. Sanborn. An injunction which had been granted by the judge, at chambers, was afterward dissolved by an interlocutory order of the circuit court, and on a final hearing the bill was dismissed.

This is an application to this court, in the name of the people on the relation of William Billings, for a writ of mandamus, to compel David Biggs, as sheriff of Warren county, to execute to him a deed to certain premises, purchased by the applicant at a sale thereof for taxes. The questions arising are fully presented in the opinion of the court,

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

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

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

Joseph E. Gaby, Judge, presiding. This was an action of debt upon a bail bond, brought by appellees against Finch, as principal, and appellant, one P. B. Morgan and W. J. Chamberlain, as sureties. The record contains no summons, but the declaration is entitled of the October term of the superior court, 1869. On the 19th same month, Morgan’s default was entered. On the 1st November, 1869, Cleveland entered Ms appearance and filed four several pleas, in substance as follows: 1.

S. L. Richmond, Judge, presiding. This was a claim filed by Addison Onion, against the estate of Ralph Lockwood, for services as nurse, rendered deceased in his life-time, and for board and lodging. A trial by jury in the court below resulted in a verdict and judgment for the plaintiff. The defendants appeal.

Joseph E. Gaby, Judge, presiding. This was an action of assumpsit, brought by Asbury F. Fawsett and Jacob J. Bankard against the Pittsburgh, Ft. Wayne and Chicago Railway Company, to recover certain claims alleged to be owing by the defendants to the plaintiffs.

<p>1. Contempt—refusing to pay a money decree—mode of enforcing payment of such decree. Even if a court of chancery has the power to commit a party to jail for a failure to comply with a decree of the court, and there is no other ground for regarding him as in contempt, such remedy should not be resorted to unless there are no other reasonable means for its enforcement. In analogy to the constitution the remedy of enforcing decrees by imprisonment should be limited to cases of necessity only.</p> <p>2. There seems to be no more reason for deblaring a party in contempt of court for failing to pay a money decree than for refusing to pay a judgment at law.</p> <p>3. And quiere, whether, in any case, the statute authorizes a court of equity to imprison for a failure to pay a money decree.</p> <p>4. In a proceeding for the partition of lands, a decree of partition being entered on a default by the defendants, together with their admissions, the court, under the act of 1869, authorizing the chancellor, in cases of that character, to decree the payment of a solicitor’s fee, allowed and taxed a counsel fee of $3,500, and decreed that the same be paid forthwith: Held, upon failure of one of the parties to pay the portion of such fee decreed against him, the action of the court, in adjudging him guilty of contempt for such failure, and ordering his committal to the county jail, was without authority of law.</p> <p>5. The statute having declared that such fees should be taxed as costs, and no mode being provided for their collection, the statute having failed in terms to provide any, it must be presumed it was intended they should be governed by the cost act in the mode of their collection, as also in re-taxing, replevying and other incidents. And that provides their collection may be compelled by execution.</p> <p>6. Costs—re-taxing the same. The amount of the solicitor’s fee having been ascertained by the court, from evidence heard in open court, but, in the absence of the defendants, a motion made by them to re-tax the fee should have been allowed. Though if the parties had been in attendance in court, or had they been specially notified of the time when the motion to tax the costs of the solicitor’s fee would be made, and they had failed to introduce evidence, or they had been heard on the motion, they would then have had no reason to urge a re-taxation.</p> <p>7. Preserving evidence—m the record. As a rule of practice the evidence upon which such an allowance is made should be preserved in the record.</p> <p>8. Costs — solicitor’s fee — how ascertained. In taxing such fees the chancellor, having the requisite skill and knowledge to form some idea as to what is a fair and reasonable compensation, while he should consider the opinions of witnesses, and evidence of the sum usually charged and paid for such services, should exercise his own judgment and not be wholly governed by the opinion of attorneys as to the value of the services rendered.</p>

<p>Easement ; license. Where a party, holding a bond for a deed to a tract of land, sold a portion of the tract to a third person, and procured a bond for a deed thereto, to be executed to him by the original vendor, in consideration of an agreement in writing, though not under seal, between the original purchaser and his vendee, that the latter should keep open a ditch, across the portion so sold to him, sufficient to carry off the water from two ditches on the other portion of the tract, it was held, such agreement was not a mere license, revocable at the will of the party who agreed to keep the ditch open, by reason of the agreement not being under seal, but it was supported by a valuable consideration, creating a vested right of the character of an easement.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Sabin D. Putebbaugh, Judge, presiding.</p>

<p>1. Contracts —duress. A person prosecuting another upon a charge of crime, may receive from the accused private satisfaction for his private injury, and the fact that he receives this while the prisoner is in confinement, and forbears further prosecution, does not, of itself, render the transaction illegal.</p> <p>3. But even if the imprisonment he lawful, yet if the prosecutor detain the prisoner in prison unlawfully, by covin with the jailor, this is a duress which will avoid a deed.</p>