Volume 58 — Illinois Reports

Hodges, Judge, presiding. This was an action of assumpsit, brought by James Miner, on a promissory note for $1,700, dated March 3, 1868, payable the first of the next May, with ten per cent interest after the first of April, signed by defendants, Abel C. Benedict and Theodore E. Curtis. The declaration was in the usual form, to which the general issue, and a plea denying the execution of the note, verified by affidavit, were filed.

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

<p>New í'Bial—verdict sustained by the evidence. In this case it was hdd, that the ’evidence clearly sustained the finding of the jury.</p>

Writ op Error to the Circuit Court of Macoupin county ; the Hon. Edward Y. Bice, Judge, presiding. This was a suit by scire facias, brought by the people of the State, in the Macoupin Circuit Court, against George W. Farris, Stephen Sawyer, Warren Sawyer, William B. Mitchell, John Higgins and JohnWright.

Joseph Sibley, Judge, presiding. This was an action of ejectment, .brought by George A. Kibbie, in the Adams Circuit Court, against John H. Williams, for the recovery of the H. E. qr. of sec. 11, town 2, ÜST. R. 7 W. in Adams county. The declaration was in the usual form, to which was filed the general issue. A trial was had by the court without a jury, by consent of parties. Plaintiff traced title from the United States government to himself.

John M. Scott, Judge, presiding. It appears that Charles C. Brown owned certain land, and sold it to Henry G. Tyler, who executed to Brown a mortgage on the land to secure the deferred payments on the purchase, for which he had executed three promissory notes, due in one, two, and three years, for §1000, each, bearing six per cent interest. Brown transferred the notes to complainant, and Tyler subsequently sold the land to Snell.

Charles D. Hodges, Judge, presiding. The railroad company, on the 24th day of October, 1868, filed a petition in the office of the circuit clerk of Morgan county, against William H. Black, for the purpose of condemning the right of way over certain lots of land. The judge thereupon appointed three commissioners to assess and report the damages that would be sustained by reason of the construction of the road.

Writ of Error to the Circuit Court of Macon county; the Hon. A. J. Gallagher, Judge, presiding. This was an action of assumpsit, brought by Bowman against Millison, on the following promissory note: “Stamp 60 cts—$1,111.11.

<p>New trial—verdict against the evidence. In this case, the verdict of the jury being clearly against the weight of the evidence, the judgment is for that reason reversed.</p>

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

Thomas F. Tiptoh, Judge, presiding. This was an action of assumpsit, brought by Elbridge O. Warner, in the Circuit Court of DeWitt county. The declaration is in the usual form, for money paid by the plaintiff for the use of the defendant. Plea of the general issue; and a trial by the court without a jury, by consent of parties.

<p>Sale op chattels—under execution—property must be present. In the sale of personal property under execution, the property sold must be present, where it can be seen by the bystanders, and in the custody of the officer, or the sale will be void.</p>

John M. Scott, Judge, presiding. This was an action of assumpsit, brought by Albert W. Hutchins, in the McLean Circuit Court, against the United States Express Company, to recover for an alleged loss of two thousand dollars, claimed to have been delivered to the company enclosed in a package directed to M. F. Hutchins, at Lowell, Mass. The package was delivered to the company at Allin, in this State, and it is claimed that it never reached its destination.

Writ of Error to the Circuit Court of Vermilion county; the Hon. James Steele, Judge, presiding. This was a suit in attachment, brought by William P. Chandler and John Donlan, in the Circuit Court of Vermilion county, against John Hogle. The declaration was in assumpsit, on the common,count, for goods, wares and merchandise.

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This action was originally brought before a justice of the peace, by Leopold Warmser and Hath an Gutman, partners, doing business as Warmser & Co., against James Howarth and Margaret, his wife.

<p>1. Negligence—liability of a raib'oad company for hilling slock. In an action against the Rockford, Rock Island & St. Louis Railroad Company, to recover the value of a cow, belonging to the plaintiff, alleged to have been killed by an engine and train on the defendants’ road, it was held, that although the accident occurred at a place where the company were not bound to fence their track, and defendants were not guilty of any wanton or wilful neglect, yet, if by the exercise of ordinary care and skill upon their part, they could have prevented the injury, they were, nevertheless, liable for the damages sustained.</p> <p>2. Evidence—presumption. And upon objection that the evidence failed to connect the defendants with the injury, the testimony of the engineer, “ that he was on the train, on the 17th day of June, 1869, when the cow was killed; that he had been an engineer about ten years, and had been on the Rockford, Rock Island & St. Louis Railroad, six or seven months,” was regarded as sufficient to support the finding of the jury on that question, against the defendants. Although the evidence was slight, still it was not an unreasonable presumption, that the engineer was in the employment of the defendants at that time, and that the train on which he was the engineer belonged to them, and was on their road.</p>

Charles Turner, Judge, presiding. This was a petition filed by Thompson Gr. Onstott against John O. Randolph and James S. Walker, to enforce a mechanic’s lien against certain premises, for materials furnished by the complainant to Randolph, used in the erection of a building thereon.

Writ of Error to the Circuit Court of Mason county; the Hon. Charles Turner, Judge, presiding. This was an action of ejectment brought by Lewis W. Eoss, in the Mason Circuit Court, against Levi Coat, to recover lot one in block ten, in the town of Havana, in this State; the declaration was in the usual form, and the general issue was pleaded.

Charles D. Hodges, Judge, presiding. This was an action of assumpsit, brought by William C. Kimball and Ezekiel Kimball, surviving partners, &c., in the Morgan Circuit Court, against Wilson P. Hall and Elizabeth McHatton, partners, &c. The declaration is in the usual form, on a promissory note for $5,000, signed by W. P. Hall & Co., and the common counts for goods and wares sold, &c. A plea in abatement for the non-joinder of William L. Nugent as a party defendant.

<p>1. Adultery—proof of. The statutory crime of adultery can not be proved by a single act, or even a number of acts, of illicit intercourse. The statute requires an “ open state of adultery.” The living together must be open and notorious, as if the relation of husband and wife existed, and the illicit intercourse habitual.</p> <p>2. Adultery is illicit intercourse between a married person and one of the opposite sex, whether married or single, and to sustain the charge there must be proof of actual and not reputed marriage.</p> <p>3. Witness—competency of to prove charge of adultery. Where a married woman is tried for the crime of adultery, it is error to permit her husband to testify for or against her, nor has the statute of 1867 altered the rule.</p>

Joseph Gillespie, Judge, presiding This was a proceeding on the part of the St. Louis, Vandalia & Terre Haute Railroad Company, to condemn the right of way over a forty acre tract of the land of James H. Brown. An appeal was taken from the award of the commissioners, to the circuit court, where a trial was had by the court and a jury, resulting in a verdict and judgment in favor of Brown, for $360, from which the company appeals to this court.

<p>New trial—verdict against the evidence. The judgment of the court below in this case, is reversed, for the reason that the verdict of the jury is against the weight of the evidence.</p>

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

Charles Turner, Judge, presiding. This was an action of assumpsit, commenced by Julia Lamoreux, as the administratrix of the estate of William Lamoreux, deceased, against Godfrey Hulshizer. The plaintiff filed her prceoipe on the 2d day of February, A. D. 1870. Summons was issued on the same day returnable to the March term, 1870, of said court, and duly served. Declaration was filed on the 5th day of February, 1870, containing one special count and the usual common counts.

Henry S. Baker, Judge, presiding. This was an action of assumpsit, brought by Thomas M. Hope, in the Alton City Court, against the Insurance Company of North America, on a policy of insurance, to recover for loss by fire. The general issue was filed, and another plea setting up an election to repair the building, and that notice ■was given to the assured, and the repairs made. The case was tried by the court and a jury, and a verdict for plaintiff in the sum of $389.75.

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

<p>1. Negligence—what constitutes. In an action under the statute for a wrongful killing, it appeared, from the evidence, that the deceased was killed on a dark night, at the crossing of a public street, in frequent use, while attempting to cross a railroad track, by a train of freight cars, which had been detached from the engine, and was running along the track under the control of no person, without any light or signal being given of its approach: Held, that these facts constituted great negligence on the part of the railroad company, for which it must be held responsible for the damages sustained.</p> <p>2. Damages—whether excessive. And in such case a verdict for $2,400, was held not excessive.</p>

Writ of Error to the Circuit Court of Morgan county \ the Hon. Charles D. Hodges, Judge, presiding. This suit was brought by Egbert S. Page, in the Circuit Court of Morgan county, against Leopold W. DeLeuw, George A. M. Campbell, and Elizabeth F. DeLeuw. A summons was issued, returnable to the November term, 1869, which was duly-served.

Writ of Error to the Circuit Court of Edgar county; the Hon. James Steele, Judge, presiding. This was an action of assumpsit, originally commenced in the Circuit Court of Clark county, by the defendant in error, Johnson J. C. Burch, as administrator of Sarah E. Peake, against the plaintiff in error, Eldridge S. Janney, upon two notes; one for $1002.50, the other for $525, and payable, respectively, one day after date.

This is an application to this court, in the name of the people, on the relation of George W. Chatterton, for a writ of mandamus to compel the auditor of public accounts to issue, and the State treasurer to countersign and pay, a warrant for the contract price of 1,000 reams of printing paper, sold and delivered to the State by the petitioner, and to compel the Secretary of State to receive the balance, 1,000 reams of said paper, contracted to be delivered, the contract…

Writ op error to the Circuit Court of Sangamon county; the Hon. Benjamin S. Edwards, Judge, presiding. This was an action of assumpsit, brought by Cynthia A. Spaulding and Henry G. Waldo, in the Sangamon Circuit Court, against Francis Low and Alonzo Glenn. A summons was directed to Mason county, where service was had. Defendants appeared and filed a plea in abatement, to the jurisdiction of the court, to which plaintiffs filed a general demurrer, which the court overruled.

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of ejectment brought by William Meacham, in the Circuit Court of St. Clair county, against Thomas Winstanley, for the undivided fourth of the E. J S. E. qr. sec. 28, town 2, north range 9 west. The case was tried by the court by consent of parties. Plaintiff claimed title as one of the heirs of Berry Meacham, deceased.

<p>Writ of Error to the Circuit Court of Champaign county ¡ the Hon. O. L. Davis, Judge, presiding.</p>

<p>Ordinances—section 5, of an ordinance of the city of Clinton prohibiting the sale of spirituous liquors, void. Under section 6, of an ordinance of the city of Clinton, prohibiting the sale of intoxicating liquors, druggists are permitted to engage in the traffic for sacramental, chemical, mechanical or medical purposes; but are required under a heavy penalty to furnish to the city clerk, a statement in writing, quarter-yearly, showing the kind and quantity sold for such purposes, when and to whom sold, and on whose prescription or assurance-^such report to be verified by the affidavit of the druggist, and of every clerk and servant in his employ. In a prosecution under this section, for neglecting to furnish the required statement, it was held, that the city council had no power to enact this section of the ordinance ; that it was unreasonable and oppressive, and an invasion of the sanctity of private business.</p>

<p>1. Advancement—what will not be so regarded. Where the heir of an intestate has received property from such intestate, in his life-time, and by an instrument in writing, whether under seal or not, acknowledged the receipt thereof as his full share of the estate, the property so received, not having been charged to him, and the transaction beinguntainted with fraud, must beheld to be in full payment and satisfaction of his share of the estate, by express agreement.</p> <p>2. Same—not within the statute. The provisions of sections 63 and 164, of the statute of wills, bearing upon the subject of advancements, have no application to a case of this character.</p> <p>3. Rede abe of expectancy—by a married woman or minor—void. But in such case, if, at the time of the execution of the release, the person giving it was a feme covert, such agreement is void, or if a minor it is not binding upon him.</p> <p>4. Same—equally void—if executed by the husband for his wife. Nor will it avail anything that such release was executed by a married woman, jointly with her husband. The husband has no authority to make an agreement of that character, which will bind his wife.</p>

<p>1. Chanceuy—pleading in—proof must conform to the allegations in the bill. A complainant in chancery must recover, if at all, upon the case made by his bill. The allegata and probata must correspond.</p> <p>2. A bill in chancery filed by apart of the heirs at law of A. B., deceased, to set aside the probate of his will, and cancel the instrument admitted to probate, contained the following allegation: “ That the said paper so purporting to be the last will and testament of the said A. B., Avas not executed and attested as by the statute in such case made and provided is and was required, and is therefore inoperative and void; that the same was not signed by the said A. B., or in his presence by some one under his direction, in the presence of the two persons, together, whose names are attached to the said paper, or instrument, as pretended attesting witnesses; nor did he, the said A. B, acknowledge the said paper or instrument to be his last will and testament, in the presence of the two persons together, whose names are thereto attached as pretended attesting witnesses; that the said two persons whose names are so attached to the said paper did not sign and attest the same at the request of the said A. B., in his presence and in the presence of each other: ” Selcl, the only reasonable construction of such allegation is, that the so called will was illegally executed because the subscribing witnesses did not attest it together, or in the presence of each other, and that evidence offered under it, to show that the witnesses did not sign it in the presence of the testator, was improperly admitted. The defendants had a right to complain that they were taken by surprise by such testimony.</p> <p>3. Attestation of will—requirements of the statute. The statute does not require that the attesting witnesses to a will should be in the presence of each other when they sign it.</p>

<p>Appeal from the Circuit Court of Sangamon county; Anthony L. Knapp, Esq., acting as Judge, by consent of parties.</p>

<p>1. Negligence, in railroads—hilling stock. When, by the use of ordinary care and diligence on the part of the servants of a railroad company, animals straying on its track can be saved from injury, it is their dffiy to exercise that degree of care;' and a failure to do so will render the company liable for any damage thereby sustained.</p> <p>2. Instructions—should he based on the evidence. Where an instruction has no application to the facts of the case, it is proper to refuse it.</p> <p>3. Same—error in refusing or giving—whether will reverse. A new trial will not be awarded on the ground that the court erred in giving and refusing certain instructions, where it appears that no substantial error was thereby committed, and that those given stated the law applicable to the case with sufficient accuracy.</p>

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

<p>1. Statutory redemption—by junior mortgagee, from sale on foreclosure of prior mortgage. A mortgagee seeking to redeem, under the statute, from a sale under a decree of foreclosure of an elder mortgage than his own, does so by paying the amount bid at the sale, with interest.</p> <p>2. Where a senior mortgagee obtained a decree foreclosing his mortgage, and, at a sale thereunder, bought in the mortgaged premises at a sum less than was secured by the mortgage, received his certificate of purchase and then procured an award for a special execution to make the residue of his debt: Held, by these acts, the lien of the mortgage was extinguished, and a junior mortgagee redeeming under the statute, from such sale, took the land free from any lien of the first mortgage.</p>

<p>1. Bond—sufficiency of breach assigned. The condition of a bond was, that the principal should, among other things, pay and deliver over to his successors or any other person duly authorized to receive the same, all balances or sums of money, goods, chattels and other things, which shall appear to be in his possession, and due by him to the obligee: Held, that the condition of the bond was not necessarily broken because the principal had failed to pay over a balance which appeared to be in his hands, by his accounts rendered.</p> <p>2. Evidence—admissions. The balance sheet of a freight agent returned to the company, of the receipts and disbursements of his office, is not an admission on his part that a deficit is chargeable to himself.</p> <p>3. General agent—whether liable for default of his subordinates. The sureties in a general freight agent’s bond, are not liable for a deficit in his accounts, arising from the default of his subordinates, under a general clause in the bond, that “such agent shall well and truly perform and execute the duties of freight agent, and shall render a just and true account of all moneys, goods and chattels, which shall come into his charge or possession,” where the subordinates are appointed by the railroad company, although appointed with the approbation and consent of the general agent, and acting under his direction and control.</p> <p>4. Surety—implication. The liability of sureties on a penal bond, can not be extended by implication, to matters not clearly included in their undertaking.</p>

<p>1, Limitation act of 188wrongful entry under color of title. Where the owner of color of title who has paid taxes on unoccupied land for seven years, enters upon the actual possession of the rightful owner, he is a mere trespasser from the moment of his entry, ,and acquires no possession which the statute will protect.</p> <p>2. And it may well be doubted whether the owner of a merely colorable title, who has paid taxes for seven years While the land was vacant, will be allowed to enter on the actual possession of another and then defend against an action of ejectment by setting up the statute of limitations, even though the person intruded upon can not show the paramount title in himself.</p> <p>8. DbJbd‘—as to the time of its acknowledgment. Where a deed offered in evidence, bears date and is shown to have been in existence prior to the commencement of the suit, an objection that it was acknowledged after the commencement of the suit is not tenable.</p>

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

<p>1. Practice—jury talcing papers introduced in evidence, with them on their retirement. A paper introduced in evidence on the trial of a cause, purporting to be the admission or statement of what the plaintiff would have testified if before the jury, was held to be equivalent to the deposition of such party, and could not properly be taken by the jury in their retirement.</p> <p>3, Same—time of mailing the objection. Where it appeared the attorney in a cause, who made an affidavit of the fact that a paper given in evidence was improperly taken by the jury on their retirement, was present, and knew the fact at the time, it was held, he should then have brought the subject to the attention of the court by objecting; it was too late to urge the objection for the first time, on error.</p> <p>3. Landlord and tenant—eviction of the latter by the former, from, a part of the pi-emises. The principle upon which a tenant is required to pay rent, is the beneficial enjoyment of the premises, unmolested by the landlord.</p> <p>4 So if the landlord shall take possession of any part of the demised premises without the consent of the tenant, that will constitute, in law, an eviction of the tenant, which will operate to release him from any further liability to pay rent, even for such portion of the premises of which he may still continue in the undisturbed occupancy.</p>

Charles D. Hodges, Judge, presiding. This was a proceeding to enforce a mechanics’ lien, instituted in the circuit court of Greene county by the appellees, Thomas Dunford and George Davis, against the appellant, John E.Van Pelt, for an engine and certain mill machinery alleged to have been furnished to appellant by the appellees.

Writ of Error to the Circuit Court of Mason county; the Hon. Charles Turner, Judge, presiding. The facts of the case, so far as considered by the court, are as follows: On the 16th of January, 1861, the complainant, Auten, filed his original bill, averring that on the 12th of March, 1858, he bought of one Jas.

<p>1. Injunction bond—when condition broken. Upon suing out an injunction to restrain the defendant from “ claiming and using certain personal and real estate,” an injunction bond was given, the condition of which provided for the payment of “ all such costs and damages as should be awarded against the complainants in case the injunction should be dissolved Held, there could be no recovery upon the bond except for such damages as may have been awarded by the chancellor on the dissolution of the injunction, in the mode provided by the act of 1861.</p> <p>2. Injunction—practice on dissolution. In such case it is the duty of the party damnified by the granting of an injunction, at the time of its dissolution to suggest his damages, and have the same adjudged to him by the court, and failing to do so, he is estopped from a recovery on the bond.</p> <p>3. Bilb op exceptions—when may be signed. A bill of exceptions may be signed at a term of court subsequent to the trial, when the record shows that it was, by the courts, ordered to be presented at that term.</p>

<p>1. New trial—disqualification of jurors. On the authority of the case of Vennum v. Harwood, 1 Gilm. 659, a new trial will be granted where it appears that two of the jurors who sat upon the trial of the case, had, at a former term, served upon a jury which found a verdict against the defendant, in a similar case against her, involving a similar loss, in the same manner, and at the same time.</p> <p>2. Same—rule otherwise, where the same counsel was engaged in both cases. But a new trial will not be awarded for that reason, where it also appears in such case, that the same counsel, on behalf of the defendant, was engaged on the trial of both causes. Under these circumstances, a party can not be deprived of the benefit of his verdict. It was the duty of counsel, knowing the disqualification of these jurors, to recollect the fact, and make available in proper time, the objections which existed against them.</p> <p>3. Nor in such case will it avail the defendant, that these jurors were examined touching their qualification, and answered that they knew nothing of the case, or that they had no previously formed opinion in it, it appearing that such examination was conducted, and the statement of the case made, in such a general way as not to have brought to the attention of the jurors the fact of the former trial, or to have been calculated to elicit from them any thing in regard to it.</p>

Appeal'from the Circuit Court of Sangamon county-; the Hon. B. S. Edwards, Judge, presiding. This was an action on a policy of insurance, brought by Brennan against the Reaper City Insurance Company. Judgment was rendered in favor of the plaintiff, from which the defendant appealed.

<p>Writ op Error to the Circuit Court of Fulton county; the Hon. Chauncey L. Higbee, Judge, presiding.</p>

James Steele, Judge, presiding. This was a proceeding in equity, by Whalen, against Bishop and Ruby, to compel reformation of a deed, by which Whalen had sought to derive title, and to restrain Bishop from prosecuting a suit in ejectment. Bishop and Whalen both had attempted to derive title from one Buntain; the former by purchase at a sheriff’s sale, and the latter by deed direct from Buntain subsequent to the date of the judgment.

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

Writ oe Error to the Circuit Court of Champaign county; the Hon. A. J. Gallagher, Judge, presiding. This was an action of ejectment, brought by Augustus E. Harmon against Charles G. Larned and John L. Sample, to recover possession of certain lands of which the defendants were in possession.

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

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

<p>1. Bankruptcy—as a defense to the foreclosure of a mortgage—construction of section 20 of bankrupt act of 1868. The defendant in a bill to foreclose a mortgage, executed by him, pleaded his discharge in bankruptcy under the bankrupt law of 1868: Held, the 20th section of that act was not intended to disturb the lien of the mortgagee, except by his express' consent, and through the joint action of himself and the assignee in bankruptcy. If the mortgagee desire to prove his debt and participate in the assets of the bankrupt, he can do so upon the release of his lien, but the option is left with him. °</p> <p>2. Parties to a bill to foreclose a mortgage—where the mortgagor has been declared a bankrupt. In such ease, if the mortgagor has, since the execution of the mortgage, been declared a bankrupt, the assignee in bankruptcy is a proper party.</p>

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

Chahncey L. Higbee, Judge, presiding. This was an action of ejectment, brought by the appellants, Eugene L. Johnson and others, against the appellee, William Pollock, in the circuit • court of Schuyler county, to recover the W. i of the N. W. Í of Sec. 4, T. 3 N.,R. 2 W., situated in said county.

<p>1. Trusts and trustees—construction of a particular instrument. B and H were partners in business. H was taken sick, and made his will, by the terms of which, it was provided, that if B would deliver over to W, the executor named in the will, certain notes which were held by the firm, for the benefit of H’s daughter, and would pay H’s debts, after his decease, B should have all the remainder of H’s estate, including the firm property. Before signing the will, H caused it to be read to B, who thereupon, verbally accepted the terms proposed, and it was then executed. After H’s decease, B demanded an appraisement of the property, to see if he would accept of it under the terms proposed, which was had, and he again accepted, and delivered over the notes to W, and retained the remainder of the property belonging to the estate. B failed to pay the debts, and they were proved up against the estate of H, and paid by W, the executor. Afterwards B and W died, and the administrator of W’s estate filed this claim against the estate of B, to which was pleaded, the statute of limitations and the statute of frauds: Held, that the statute of limitations constituted no bar to the action. That a direct trust was created by the express terms of the will, and thatB received the property under the conditions imposed, and entered upon the discharge of his duties, and that the relation of trustee and cestui que trust was thereby created between the parties; and not that of debtor and creditor.</p> <p>2. Statute oe limitations—in what cases statute will not apply. To say that every instance of trust is without the statute of limitations, would be stating the rule too broadly. A distinction has been taken when the trust is a continuing one between the parties, or when the trust has been created by will. In such cases the statute will not apply.</p> <p>3. Same—in what cases statute applies. The rule is well established, that so long as the duties of the trustee remain undischarged, the trustee can not avail himself of the statute of limitations for his defense. But if the trustee openly denies the trust and acts adversely, the statute will begin to run, and may ultimate in a bar to the rights of the cestui que trust.</p> <p>4. Statute oe ebauds. This case can not be assimilated to one of a mere promise to pay the debt of a third party. It possesses none of the elements to bring it within the statute of frauds.</p>

<p>1. Mandamus—of the pleadings—on demurrer to petition—what held to he sufficient statement of facts—showing that the consolidation of two certain corporations was legal. By authority of the legislature, the county court of Macoupin county subscribed $30,000 to the capital stock of the Decatur & East St. Louis railroad company, and by the terms of the subscription it was agreed that the county should issue its bonds to said company in payment therefor ; the bonds to be delivered when the road was completed through the county, and when so delivered, the stock should be delivered to the county, and the same should thereupon be transferred to the company at the rate of one dollar per hundred shares. Afterwards, said corporation consolidated with the Toledo, Wabash and Western railway company, which latter corporation instituted a proceeding, to compel, by mandamus, the county court to issue said bonds, and also, to transfer the said stock to petitioner, for the price stipulated. By agreement, the alternative writ was waived, and thereupon a demurrer was interposed to the petition: Held, that an objection, that the petition does not state sufficient facts, to enable the court to determine the legality of the alleged consolidation, could not be sustained, it appearing that the petition does aver, that the original corporation consolidated with the petitioner, and thereby succeeded to all the rights, franchises and property of the former corporation. This averment is sufficient, and the legal intendment is, that the consolidation was in accordance with the law.</p> <p>3. Same—validity of consolidation—how determined. The validity of the act, between the two corporations, can only be determined after an issue made, by a proper return to the alternative writ.</p> <p>3. Subscription to stock—construction of, in a particular case. That by the express terms of the subscription made in this case, the county was entitled to the stock of said corporation, upon the delivery of the bonds.</p> <p>4. Statutes—construction of certain acts authorizing the subscription. The act of the legislature of 1867, incorporating the original company, and the amendatory act of 1869, clearly intend that not only the completion of the road, but the stock also, shall constitute the consideration of the bonds, and these acts do not expressly, or impliedly authorize a donation of the stock, but simply permit a sale thereof.</p> <p>5. Ebaud—agreement to sell stoch subscribed in aid of a railroad for a grossly inadequate price—under what circumstances a fraud. That in such case, an agreement to sell and transfer stock to the amount of $20,000, .for two dollars, is a fraud per se; and this court can not recognize or enforce it, as valid or obligatory.</p> <p>6. Mandamus—what must exist before peremptory writ can be awarded. Before á peremptory writ of mandamus can be awarded, there must exist both the duty and the obligation to perform. The writ must show a right to the thing demanded.</p> <p>7. Same—must be an unconditional demand. There must also be a demand for the specific thing, which ought to be done, untrammelled by any condition which may make the refusal qualified, instead of absolute.</p> <p>8. Same—in proceeding by—what will not be regarded as sufficient demand,. Upon this principle, the demand made in this case was conditional and unwarranted by the law and the rights of tlie parties, the bonds having been demanded, and the stock tendered to the county authorities, coupled with the condition, that said stock should be immediately transferred back to tlie company.</p>

<p>1. Partnership—proof of. Mere loose and casual remarks, indefinite in their character, will not, as between the persons themselves, prove a partnership, but one claiming to be the partner of another, so as to participate in a fund claimed to belong to a partnership, should establish that relation by satisfactory evidence.</p> <p>2. Trustee—trust funds. Where a person in debt, at the time conveys lands to another, to be sold and applied to the payment of the debts of the grantor, and the grantee fails to so apply the fund, creditors may subject it to the payment of his debts, by proceeding in equity, and where the grantor is dead, order the administrator to sell the lands and apply the proceeds in due course of administration to the. payment of the debts ; but in such a ease, no cross bill being filed, it ivas error to order the lands to be conveyed to the minor heir of deceased.</p> <p>3. Equitable lieu—account.of Where it appeared that two brothers selected lands, and they were entered in the name of one, and they improved a portion of them, and it appeared that the other had loaned or furnished money to the brother holding the title, and had made improvements on a part of the land, and the other who held the title, conveyed to him the lands to be sold and applied to pay his debts, the grantee held an equitable claim on, and the legal title to, the lands to indemnify him for money, improvements, &c., and the court erred .in decreeing the lands to be sold without protecting-his equity in the lands; it being higher than that of the creditors, it should have been first ascertained and satisfied, or ht least a prior lien established on the lands, before they were sold.</p>

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward Y. Rice, Judge, presiding.</p>

<p>1. Taxes—notice—jurisdiction. To obtain jurisdiction to hear an application for judgment against lands for delinquent taxes, the collector must publish the notice required by the statute. In all cases there must be actual or constructive notice, or an appearance, to confer jurisdiction on a court,cto render a binding judgment.</p> <p>2. Appeal—time of filing transcript. On an appeal to the circuit court from the judgment of a county court against lands for non-payment of taxes, it appeared the transcript was not filed in the circuit court until two terms of the latter court had intervened after the appeal was perfected: Held, as the statute requires the transcript to be filed at the next term after the appeal, the delay amounted to an abandonment of the appeal, and the circuit court should have dismissed it, or at least refused to hear the cause and render judgment therein without notice to the appellee.</p>

<p>Case—whether the proper remedy.- Where land is sold under execution, and the defendant in the writ continues in possession, but fails to redeem from the sale, and after the time for redemption has expired, and while in possession of the property he removes a building therefrom, without the knowledge or consent of the purchaser, case is the proper form of action for the injury resulting from such wrongful act.</p>

Clair county; the Hon. Joseph Gillespie, Judge, presiding. The reason urged by appellees’ counsel, why the sale under the decree of the Circuit Court of the United States, was void as to persons not parties to the suit, was, that the sale was at a different time, and upon different notices from that provided for in the deed of trust. All other facts necessary to an understanding of the decision are stated in the opinion.

Wbit of Ebbob to the Circuit Court of Brown county; the Hon. Chauncey L. Higbee, Judge, presiding. This was an action of replevin, brought by Hersman against Leeper, to recover a horse in the possession of the defendant, alleged to be the property of the plaintiff. A trial in the court below resulted in a judgment for the plaintiff, to reverse which the defendant brings the record to this court.

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

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

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

<p>1. New trial—whether verdict supported by the evidence. It is not the duty of the appellate court to enter upon a critical analysis of the evidence in every case, to determine with accuracy, as on an original hearing, the questions of fact submitted to a jury. Where it is apparent, the jury have misapprehended the force of the evidence, or where the verdict is manifestly wrong, it is the duty of the appellate court to re-examine the evidence. To that extent this court will look into the evidence, but no further.</p> <p>2. But where there is testimony of equal credibility on both sides, on simple questions of fact, the appellate court must rely on the verdict as presenting the true conclusion to be drawn therefrom.</p> <p>3. Statute of frauds—promise to answer for the debt of another. The general rule is, if a promise is in the nature of an original undertaking to pay the debt of another, and is founded on a valuable consideration received by the promisor himself, it is not within the statute, and need not be in writing to make it valid and binding,—it will be regarded in the light of a contract for the benefit of a third party, upon which such third party may found an action for the breach.</p> <p>4- So, where a purchaser of property agreed by parol, in consideration thereof, to pay certain debts of his vendor due to a third person, it was held, the promise was in nowise collateral to or dependent on the liability of the vendor, but was an original and independent promise, and not within the statute of frauds.</p>

Writ of Error to the Circuit Court of Edgar county; the Hon. James Steele, Judge, presiding. This was an action of debt, brought on a recognizance, entered into by George W. Green and Francis G. Green, to the People of the State of Illinois. Elizabeth Bales caused George W. Green to be arrested, on a charge of bastardy, and brought before a justice of the peace for trial.

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

Writ of Error to the Circuit Court of Sangamon county; the Hop. Benjamin S. Edwards, Judge, presiding. This was a bill in chancery, filed by William Grant and Harrison G. Wright, in the circuit court of Sangamon county, against Albert M. Fellows, to rescind a certain deed executed by them to said Fellows, conveying the S. W. £ of Sec. 9, T. 18, R. 4 W.} 3d P. M., for alleged fraudulent representations in the procurement of said deed.

This was an action on the case, brought by William S. Hunter, in the Logan Circuit Court, against William Mount, to recover for damages sustained by the latter in permitting Jhis sheep to run at large, knowing them to have a contagious disease-known as the “scab,” whereby plaintiff’s sheep became infected and damaged. The pleas of not guilty and of the statute of limitations were filed, and issue joined on them.

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

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

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

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

<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 Jersey county; the Hon. Charles D. Hodges, Judge, presiding,</p>

<p>1. Evidence—in an action to recover for the death of a pm'ty caused dy the negligence of the defendant. Before a recovery can be bad in such a case, it is necessary to prove, first, that the accident was occasioned b}' the wrongful act, neglect or default of the defendant, and second, that the party injured was in the exercise of due and proper care, and tli,at the injury was not the result of his own negligence and want of proper precaution.</p> <p>2. But while it is the general rule, that it must affirmatively appear, in such cases, that the party injured was in the exercise of due care and caution, yet this material fact may be made to appear by circumstantial, as well as by direct evidence.</p> <p>3. Ntcw trial—verdict against the evidence. The rule is, where there is evidence from which the jury could properly find their verdict, it will not be disturbed, although the evidence might, in the opinion of the appellate court, justify a different construction.</p> <p>4. But if there is a total failure of evidence, or if the verdict is manifestly against the weight of the , evidence, it is the duty of the court to award a new trial.</p> <p>5. Negligence—in railroads. In an action against a railroad company to recover for the death of the plaintiff’s intestate, alleged to have been occasioned by the negligence of the company, it appeared the deceased was a fireman on the locomotive of the company, and while passing a station in the night time, he was struck and killed. The circumstances showed that he was acting in the line of his duty, looking out for signals, and while so doing, and in the exercise of due care and caution, he was struck by a “mail-catcher” which had been placed near the track by the company. Two other accidents had previously occurred from the same cause, of which the company had notice: Held, the company was guilty of gross negligence in having omitted to place the “ mail-catcher ” a safe distance from the track.</p> <p>6. Same—of comparative negligence. It was considered, however, that! even if the fireman had been guilty of negligence in leaning out from the gangway or side window of the locomotive while upon the lookout for signals, his negligence in that regard was slight in comparison with that of the company in permitting the “mail-catcher” to stand so near the track, after notice had been given that it was dangerous to the railroad operatives.</p> <p>7. The doctrine is, that although the injured party was guilty of negligence, yet if his negligence was slight in comparison with that of the defendant, the injured party will be entitled to recover.</p> <p>8. Railway companies have no right to erect machines, for any purpose, so near the track that the slightest indiscretion on the part of the employee will prove fatal. It is culpable negligence so to do.</p> <p>9. Same—liability of the common master for injury to a servant, received through the negligence of a fellow servant. A fireman upon a railroad locomotive was killed by coming in collision with a mail-catcher while the train was in motion, the accident being occasioned by the negligence of the company in permitting the mail-catcher to be placed in too close proximity to the track. In an action by the administrator of the deceased, to recover damages against the company, under the statute, it was held, those servants of the company whose duty it was to see that the mail-catcher was placed a safe and proper distance from the track, could not be regarded as fellow servants of the deceased in the same line of employment, so as to prevent a recovery in the action, against the common master.</p> <p>10. Opinions of experts—7iow far conclusive. In an action by an administrator to recover damages for the death of his intestate, who was a fireman upon a railroad locomotive, and whose death was caused by coming in collision with a mail-catcher standing near the track, it was 7ield, the opinions of railroad men, as experts, that the mail-catcher in its proximity to the track was not dangerous, were not conclusive on that question, but the jury might consider any other evidence in the case on the subject, and it was proper to so instruct the jury.</p> <p>11. Evidence—to show no want of proper care on t7ie part of the plaintiff. In such case, where it was shown the accident occurred in the night time, and while the fireman who was killed was acting in the line of his duty, watching for signals in approaching a station, it was proper to instruct the jury, on behalf of the plaintiff, that they might consider the fact that the alleged casualty happened in the darkness of the night, and that it was customary and usual for the firemen, in the discharge of their duties, to look out of the side window or gangway of the locomotive, for the purpose of discovering signals. Such facts were proper to be considered, as tending to show .the exercise of due care and caution on the part of the deceased at the time of the accident.</p> <p>12. Error will not always reverse—admission of incompetent evidence. The admission of hearsay evidence, although incompetent, will not necessarily operate to reverse the judgment, where the same facts were testified to by another witness who had direct knowledge of them, and no injury could therefore have resulted to the party against whom the evidence was admitted.</p> <p>13. Instructions—should he based upon the evidence. An instruction, ■based upon a hypothetical state of facts not found in the case, ought not to be given, for the reason that it would direct the attention of the jury to issues not involved, and would therefore be erroneous, although such an instruction might state accurately a correct abstract legal principle.</p>

A. J. Gallagher, Judge, presiding. This was an action on the case, brought by David F. Brown, in the Circuit Court of Champaign county, against Thomas Stevens, Benjamin F. Stevens and Washington Beasley, to recover for an alleged injury from their Texas cattle. The declaration contained four counts, two under the statute and two at common law. Plea, not guilty. A trial was had by the court, by consent of the parties, without a jury.

<p>1. Subscription's—in aid of churches—where society is not incorporated— whether binding. It is no defense in a suit to enforce a subscription to aid in the building of a church, that at the time of the- subscription the society was not incorporated.</p> <p>3. Same—sufficiency of notice of withdrawal. A notice to trustees of the society, after organization, that the subscriber will not pay his subscription, unless a certain person is excluded from speaking in the church, while the proffered donation appears at the bead of the list as an unconditional subscription, is not sufficient to release the subscriber from liability.</p> <p>3. Same—when due. A subscription to be paid when the building is enclosed, is due and may be collected when the main building is enclosed, though some towers connected with the building have not been enclosed.</p> <p>4. Motions—should be preserved by bill of exceptions. An alleged error in sustaining a motion to strike a plea from the files, can not be considered in this court, unless made a part of the record by being incorporated into the bill of exceptions.</p>

<p>Assignee—su/rety executing a note on conditions. A claim being placed in the hands of an attorney for collection, the debtor proposed to borrow the money to pay the same, from a third person, and accordingly executed a note pa)rahle to the latter, with another as surety, such surety, however, signing the note upon the express condition that the principal maker should procure the note to he signed also by a certain other person as co-surety. This condition Was never performed, but the note as thus executed was placed in the hands of the attorney, who retained it until after its maturity, when the payee indorsed it to him to enable him to sue thereon in his own name. In an action on the note by such assignee, it was held, the surety could avail of the non-performance of the condition upon which he signed the note, as a defense, even though the plaintiff did not know of such condition, he not being an innocent holder for a valuable consideration.</p>

<p>T)EBi-~misjoinder of counts. Where the declaration contained counts in debt on the record of a judgment and a common count for interest, and contained the "words, “in consideration of the indebtedness the defendant undertook and then and there faithfully promised to pay the same when thereunto afterwards requestedHeld, that this made the latter a count in assumpsit, and that it is error to join counts in debt and assumpsit in the same declaration. Had the word “ agreed ” been used in the common count, instead of “ promised,” it would have been a count in debt.</p>

<p>Counties—of their liability to a private action for neglect of duty in keeping highways in repair. A county is not liable, in its corporate capacity, to a private action for injury resulting from a defective highway.</p>

<p>1. Instructions—should be based on the evidence. As a general rule, instructions must be founded on the evidence, and although the instruction asked may state a correct principle of law, still, if it is based on a hypothetical state of facts not developed in the case, it ought to be refused. Such an instruction may tend to mislead the jury, and for that reason it would be error in the court to give it.</p> <p>2. In an action for personal injuries to the plaintiff, occasioned by the alleged negligence of the defendant, the court, at the instance of the plaintiff, instructed the jury that if the defendant was guilty of wilful misconduct in causing the injury, in fixing the amount of their verdict they were not confined to the actual damage sustained by the plaintiff. Upon appeal to this court, from a judgment against the defendant, the giving of such instruction was regarded as error, for the reason there was no evidence that the injury was the result of wantonness or wilfulness on the part of the defendant, and upon the plaintiff insisting that the defendant was not injured by the instruction, for the reason that the jury did not award vindictive damages, as the verdict did not appear to be excessive for the injury sustained, it was held, the attention of the jury being directed to the question of wilful neglect as an element of increased damages, the presumption arose that the instruction, coming from the court, had its due influence and made its impression on the minds of the jury, against the defendant.</p> <p>3. Jury—should find the facts—not the court. Instructions should not assume the existence of facts to be determined in the case, but leave them to be found by the jury, from the evidence.</p> <p>4. Negligence in railroads—of comparative and conti'ibutory negligence. While it is the imperative duty of railroad companies to use all reasonable and proper precautions at public road-crossings, and everywhere else, to prevent collisions and accidents, still a like duty rests upon the citizen. And where a person, on approaching a railroad crossing with a wagon and team, does not avail himself of his sense of sight and hearing, when by the proper exercise thereof he could have avoided a collision with a train at the crossing, he will be regarded as unusually negligent on his part, and can not recover for the injury resulting, in an action against the company, where the only neglect of the servants of the company, in charge of the train, was the omission to give the required signal on approaching the crossing.</p> <p>5. It is not the duty of a railroad engineer, on nearing a public road-crossing, to stop his train for the purpose of avoiding a collision with a wagon and team he may see approaching the crossing, though by applying the brakes he could do so in time to avoid a collision. The engineer in such case has a right to suppose, when he sees the wagon at a distance approaching the crossing, and the proper signal is sounded, that the person in charge of the team, in obedience to the known custom of the country, will stop, and not attempt to pass immediately in front of a swiftly advancing train. Though should the engineer, on approaching the crossing, see a team on the track when it would not be likely to get across in time to avoid the train, he should use every means in his power to check his train and prevent the collision.</p>

These eases arise upon an original and cross bill in chancery exhibited in the Cook county circuit court. On the 26th day of June, 1856, Julius J. B. Kings-bury, being seized in fee of the real estate described in-the pleadings, and situate in said county, in the State of Illinois, died at the city of Washington, D. C., intestate, leaving him surviving, his widow, Jane C. Kingsbury, and two children, viz: Mary Jane and Henry W. Kingsbury.

<p>1. Vendor and purchaser—right of the former to enforce payment against the property. A aud B entered into a written agreement, by the terms of which the former agreed to sell to the latter one-half of certain mill premises, in consideration of which the latter agreed to furnish all necessary machinery, complete, in the mill then erected on the premises, for the running of three sets of stones. B furnished a part of the money required to complete the mill as agreed upon, the remainder being furnished by A, who was authorized by B to pay out money for machinery and labor in the further prosecution of the work, the same being conducted under the direction of B: Held, A could maintain a bill to subject the premises to sale for the amount paid by him, above the sum B had paid, necessary to complete the mill according to the terms of the agreement, upon the principle which permits a vendor to filea bill tosubject to sale land sold for the unpaid purchase money—the amount so expended by him being regarded as unpaid purchase money.</p> <p>2. Construction of the contract. The phrase in the agreement “ in consideration of machinery to be furnished, complete, in the mill,” included not only the cost of the machinery, but the labor and material necessary to place it in proper position for use.</p> <p>3. Evidence—receipts from third persons. In adjusting the accounts between the parties, receipts taken by A from various persons engaged in the work for money he paid them for their work were regarded as proving nothing, in themselves, against B, as they neither constituted evidence of the value of the work, nor where nor for whom performed.</p>

<p>1. TP'B.Kan—falserepresentations—matters of opinion. Ordinarily, matters of opinion between parties dealing upon equal terms, though falsely stated, are not relieved against in equity.</p> <p>3. In order to entitle a party to relief for any misrepresentation, it must appear that he relied upon it.</p> <p>3. Upon bill filed to set aside a deed executed by the complainant to the defendant, upon the alleged ground of fraud and misrepresentation in its procurement, it appeared the defendant, having purchased a tax title to the land, applied to the complainant, who owned the original patent title, for a quit claim deed, representing to the complainant that his tax title was good, and the complainant’s title worthless. The evidence showed that the defendant at the time believed these representations to be true. It resulted, however, that the tax title was in fact utterly worthless: Held, the representation by the defendant as to the validity of his tax title, was to be regarded as a mere expression of opinion, and as the parties dealt upon equal terms, there being no special confidence or relation existing between them, the defendant was not guilty of a fraud for which the deed could be avoided, merely because of the expression of such opinion, which the facts did not justify, so long as he made no false statement as to what those facts were.</p> <p>4. Moreover, it appeared the complainant had abandoned his land long previous to the application of the defendant for a deed, upon information obtained from other sources that it had been sold for taxes, and that his title was gone, so that he could not be regarded as having relied upon the representations of the defendant, but rather upon a pre-existing belief that he had lost his title by means of the tax sales; and, not relying upon the representations of the defendant, he could not be considered as having been defrauded by them.</p> <p>5. Conveying AH' intebest—not known to exist. A party can hardly be said to part with a right, or title, of the existence of which he is wholly ignorant ; and if he does not so intend, a court of equity will, in ordinary cases, relieve him from the legal effect of instruments which surrender such unsuspected right or title.</p> <p>6. But this principle has no application to a case where the owner of a paramount title to land, fully aware of the existence of his own title, surrenders it to the owner of an adverse tax title upon a misconception as to the strength of the tax title.</p> <p>7. Inadequacy oe consideration—voluntary conveyance, as between the parties. Mere inadequacy of consideration, in the absence of fraud, will not be sufficient to enable a grantor to avoid his deed made in submission to an adverse claim of a tax title, without first making an investigation as to whether it was well founded or not, although the tax title may really have been of no validity. Equity will not relieve a party against such negligence and folly.</p>

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

<p>Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Greene county; the Hon. D. M. Woodson, Judge, presiding.</p>

Charles D. Hodges, Judge, presiding. This was a proceeding originally commenced in the probate court of Jersey county. In February, 1870, Ezekiel Dodson died intestate, and Samuel Pope and Catharine Dodson were appointed by the county court to administer upon his estate.

This was an action for malicious prosecution, brought by Cross against Mitchinson. It appears that Mitchinson had Cross arrested for alleged slanderous words spoken by the latter, imputing to the former adulterous intercourse with one Catharine Cross, formerly Catharine Mitchinson, and to show the absence of probable cause for such prosecution, the plaintiff in this suit attempted to prove the truth of the alleged slanderous words.

<p>1. Texas cattle law—validity of. The power of the legislature to enact the law of February 27,1867, to prevent the importation of Texas and Cherokee cattle into this State, has been affirmed.</p> <p>2. Same—private action for damages for violation of—of negligence on the part of the plaintiff. In an action on the case wherein the plaintiff sought to recover for damages arising from a violation by the defendant, of the act of February 27, 1867, known as the Texas cattle law, it was held, that ordinary negligence on the part of the plaintiff contributing to the injury, would not bar his right of recovery—nothing less than gross negligence would do so.</p>

Charles D. Hodges, Judge, presiding. This was a proceeding for the trial of the right of property in a part of a certain field of growing corn, instituted by Washington Graff, before Isaac S. Sierrer as sheriff of Morgan county. The trial before the sheriff resulted adversely to the claimant, who thereupon took the case by appeal to the circuit court, where judgment was rendered for the defendant.

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

<p>1. Railroads—injury to stock—burden of proof—sufficiency of evidence. In an action against a railroad company to recover the value of a horse killed on the defendant’s track by its engine and train, the plaintiff based his right of recovery upon an alleged violation by the defendant of an ordinance of the incorporated town of Greeuview,which prohibited the running of trains within the inhabited portion thereof, where the accident occurred, at a greater rate of speed than six miles an hour: Meld, the burden of proving this averment was upon the plaintiff, and the mere proof that the animal was killed on the defendant’s track within such portion of the town, did not raise the presumption that the train was running at the prohibited rate of speed.</p> <p>2. Same—construction of the act of 1865, in respect to the speed of trains. A proper construction of the second section of the act of February 16,1865, the first section of which renders railroad companies liable for all damages resulting from running their trains within the corporate limits of cities and towns at a greater rate of speed than allowed by the ordinances thereof, does not make the fact that stock was killed in the corporate limits of a town, evidence that the train was running at a rate of speed beyond the limit of the ordinance, but simply makes proof of the violation of the ordinance, and that the injury occurred while the train was so running at the prohibited rate of speed, presumptive evidence of negligence, rendering the company prima facie liable.</p> <p>8. Same —fencing railroads in towns. Railroad companies are not required by the statute to fence their line of road within the corporate limits of a town, and in actions against them to recover for injuries to stock, occurring within such limits, it is error to refuse so to instruct the jury.</p>

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

Charles Turner, Judge, presiding. This was an action on the case, brought by Quaintance against the railroad company, to recover damages for the burning of his house, the fire alleged to have been communicated from an engine of defendant, on its road between the cities of Bloomington and Jacksonville. A trial by jury resulted in a verdict for the plaintiff, upon which the court rendered judgment. The defendant appeals.

<p>1. Guardian and ward—proceedings to sell the land of the latter—of the term at which application should be made. Where a guardian glides notice by publication, under the statute, that he will apply to the court, at a certain terra, for an order to sell the land of his ward, and the application is made at a different term, the proceedings will be void for want of jurisdiction.</p> <p>2. And such will be the result, although the term of the court to which the notice was given, was not held, by reason of the absence of the judge, there being no petition filed within the time for which such term could have been held by law, nor any steps taken to give the court jurisdiction, either of the subject matter or the person, at that term.</p> <p>3. Continuance by operation of law, where the judge is absent—construction of the statute. The statute which provides for the adjournment of a term of court, in case no judge shall attend on the first or second day, and that all suits, writs, process, etc., shall stand continued until the next term, has reference only to suits and proceedings actually pending when the contingency happens which puts the law into operation. # It is construed to mean some proceeding, not alone commenced, but under the control of the court, and upon which it could act.</p> <p>4. So where a guardian had simply given notice, by publication, that he would apply to the court, at a certain term, for an order for the sale of the laud of his ward, no other steps whatever being taken to bring the cause into court for that term, it was held, the proceeding was not pending in court, so as to come within the operation of the statute, and would not stand continued in case that term was not held, but the proceeding would abate.</p>

<p>1. Of voluntary and compulsory payment. It has been held, that the payment of an assessment, made to a collector of taxes, while having in his hands a warrant to lev}' and collect the amount of the assessment of the goods and chattels of the owner, might be considered compulsory, and made under such circumstances as would authorize the party paying the money to recover back the same, if the assessment was illegally made.</p> <p>3. But this rule does not apply where a special assessment is paid to the officer while having in his hands a precept which can only be levied upon the lands of the owner. In such case, the payment will be regarded as voluntary, because a sale under the precept would not disturb the owner in the free enjoyment of his property, and his remedies would still remain to him, in case the assessment was illegal.</p> <p>3. Action—to recover money back. The rule is, if a party, with full knowledge of all the facts of the case, voluntarily pays money in satisfaction or discharge of a demand unjustly made on him, he can not afterwards recover back the money.</p> <p>4. Where a party has voluntarily paid a special assessment, the fact that others have failed to pay, or that the municipal authorities have abandoned the collection of other assessments in respect to the same improvement, will not aid the party who has paid, in recovering back his money.</p> <p>5. Failure of consideration. Where a party sought to recover back money voluntarily paid upon a special assessment, made for the construction of a certain public improvement adjacent to his premises, on the ground that the consideration for the payment had wholly failed, it was considered, the improvement having been made, the plaintiff had received a full equivalent or compensation for the money paid, in the enhanced value which his property had derived from the improvement.</p>

Thomas F. Tipton, Judge, presiding. This was an action on the case brought by Jonathan E. Hall, James DeLancl and ‘Edward DeLand, against the railroad company, to recover for the loss of a number of hogs, which it was alleged escaped from the cars in the course of transportation on the defendant’s road. A trial resulted in a verdict and judgment in favor of the plaintiff. The company appealed.

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

<p>1. Instructions—should not he numerous. Instructions should always be clear, accurate and concise statements of the law as applicable to the facts of the case. It was never contemplated, under the provisions of the practice act, that the court should be required to give avast number of instructions, amounting, in the aggregate, to a lengthy address; such a practice is mischievous, and ought to be discontinued. A few concise statements of the law applicable to the facts are all that can be required, and are all that can serve any practical purpose in the elucidation of the case.</p> <p>2. Whether error will reverse—of improper instructions. While it is true, that the refusal of proper instructions, or the giving of improper ones, will not always occasion a reversal of the judgment, yet that is when substantial justice has been done, and the instructions were not of such character as would tend to mislead the jury on the doubtful facts in the case,</p> <p>3. The general rule is, if the instructions are objectionable, and the natural effect would be to mislead the jury where the facts are controverted, the verdict will be set aside and a new trial awarded.</p> <p>4. Slander—msasure of damages—evidence of character. In an action for slander, the court instructed the jury, on behalf of the plaintiff, that evidence of character was admissible for the purpose of showing the extent of the injury, but not in justification, and then directed them, that if the defendant had failed, under his plea of justification, to prove the plaintiff guilty of the crime charged, then they would be bound under the law, no matter what the proof as to the general character of the plaintiff, to find for him in any sum not exceeding $5000, which was the amount of the ad damnum laid in the declaration.</p> <p>This was stating the rule too broadly. While it is true, that the character of a party, however bad, does not justify the utterance of slanderous words, yet the measure of damages is vastly different where the party sustains a good character.</p> <p>5. So there being evidence tending to show the bad character of the plaintiff, it was erroneous to instruct the jury that he might recover to the extent of $5000, in case the truth of the words spoken was established.</p> <p>6. Same—mental suffering. There is no doubt, where words spoken are actionable per se, that mental suffering produced by the utterance of the slanderous words is a proper element to be considered iu fixing the amount of dnmages. The rule seems to be different where the words are not actionable in themselves.</p> <p>7. Jury—must decide facts—not the court. An instruction which assumes the existence of any fact, invades the province of the jury in that regard, and is erroneous.</p>

<p>1. Highways—variance from the point of commencement stated in the petition for a road. The statute requiring the petition for the laying out and. establishing of a public road, to designate the point of commencement of tlie road, will not permit any deviation by the commissioners from the point so fixed.</p> <p>2. In this case, the petition prayed for a new road to be laid out, commencing at the southeast corner of a certain section; the commissioners established the commencement twenty-five links from the corner. This difference, though slight, avoided the entire proceedings establishing the road.</p> <p>3. Same—of the notice of time and place to hear reasons—evidence thereof. Where the final order of highway commissioners establishing a public road, particularly specified that three notices of the time and place for hearing reasons for or against the establishment of the road, were posted in three of the most public places in the town, eight days previous to the time of meeting for the purpose, that was held to be the highest and best evidence of the fact.</p> <p>4. Same—what shall he done with the notice. The statute does not require the commissioners to deposit such notice with the town clerk.</p> <p>5. Same—of .the time within which the commissioners must meet to hear reasons. The provision of the statute requiring the commissioners to meet to hear reasons for or against the road, within thirty days from the posting of the petition, is mandatory, not merely directory. So where the commissioners met on the thirty-first day, for that purpose, the irregularity was such as to occasion a reversal of a judgment establishing tlie road.</p>

<p>Writ of Error to the Circuit Court of Vermilion county; the Hon. James Steele, Judge, presiding.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. A. J. Gallagher, Judge, presiding. This was a suit in chancery, instituted in the court below by Isaac S. Boardman, against the widow and heirs of James E. Everett, deceased, to foreclose a mortgage executed to the complainant by the said James E. and his wife, and to reform the mortgage in respect to an alleged mistake in the description of the premises therein.

<p>1. Chancery—commencement of suit—of notice before Mil fled. The filing of the bill is the commencement of a suit in chancery, and service had therein on process issued, or by publication of notice made, prior thereto, is a nullity.</p> <p>2. In such a case, where it was attempted to obtain service b publication, the defendant being a non-resident, it appearing the affidavit of non-residence was made on the loth day of July, and that, on the same day, an order for publication was entered, and the notice was published for the first time on the 17th of that month, and the file mark on the bill bore date the 19th of the same mouth, it was held, even if the affidavit might have been used after the bill was filed, that still the notice published before the bill was lodged in the office of the clerk and filed by him, could not be regarded as legal and binding—there was not constructive notice, such as required tile defendant to regard it, or that gave the court jurisdiction of his person, and hence he was not bound by the decree.</p> <p>3. Same—time of filing MU'—oral evidence. Nor could it be shown by oral evidence, that the bill was filed at a different date than was indicated by the file mark, endorsed by the clerk.</p> <p>4. Same—mistake in the file mark—hoto corrected. Though if a mistake was really made, the complainant might, within a reasonable time, have applied to the court, on proper notice to the defendant, for leave to the clerk to amend the file mark on the bill. But until such an amendment of the record was made, the date indicated must be held conclusive. The court is not at liberty to correct or obviate its effect by conjecture as to the neglect of the clerk to do his duty, but it must be presumed that he did not so far disregard his duty as to date the filing of the bill at a different time from that when it was deposited with him to be filed.</p> <p>5. Mortgages—right of a junior incumbrancer to redeem, when notserved toithprocess. The owner of certain lands conveyed to another by deed of general warranty, taking back a mortgage on the premises for the unpaid purchase money. Subsequently the grantee conveyed to a third person, receiving the entire purchase price, and his grantee conveyed to another, taking a mortgage for .the purchase money. The first grantor filed a bill to foreclose his mortgage, making his grantee and the two subsequent gran tees parties defendant. The last grantee alone was served with process, the attempted service on the two others being invalid. A decree pro confesso was rendered against all the defendants, ordering a sale of the premises in satisfaction of the complainant’s mortgage: Seto, although the last grantee, the owner of the fee, was served with process, still the rights of his grantor, he not being served and holding a mortgage from the former for the purchase money, no matter what decree was rendered, were not affected thereby! and he was entitled to redeem from the sale foreclosing the first mortgage, and the party receiving a deed to the land by virtue of the certificate of purchase issued under the foreclosure sale of the first mortgage, at most took the premises subject to his right of redemption.</p> <p>6. Evidence—weight thereof. Upon the question, whether the second mortgagee, whose mortgage was duly recorded, was chargeable with notice of the existence of the first mortgage, so as to require him to redeem therefrom, the same not being recorded, both he and his grantor testifying positively that he had no notice of its existence, it was held, the mere statement of a witness, that “ he understood him to admit that he had a knowledge of the mortgage when he purchased the land,” was insufficient evidence to overcome the positive testimony of the two other witnesses, and charge ■ him with such notice, such statement being, at best, the mere understanding of the witness, there being nothing to show from what he derived his understanding, and the burden of proof devolving upon the party claiming under the first mortgage to show the second mortgagee was chargeable with such notice.</p> <p>7. Purchaser—who may buy in an outstanding title. The existence, merely, of the relation of landlord and tenant, will not create the relation of trustee and cestui que trust, so as to prevent the tenant buying in for his own use an outstanding title in the premises.</p> <p>8. Cloud upon title—when it may be removed. Equity will entertain jurisdiction at the instance of the owner in fee of lands to remove a cloud upon his title created by a sale of the premises and a deed thereto under a decree of foreclosure of a mortgage thereon, although the decree and deed as to him are void, he not having been served with process in the foreclosure suit, and although the land is not chargeable with the mortgage by reason of the same not having been recorded, and because he had no notice for its existence at the time he purchased.</p> <p>9. Limitations—suit to remove cloud upon title. A suit to remove a cloud on a title is only barred, like any other case in equity, by the general statute of limitations, and is not governed by the statute limiting the time of bringing writs of error.</p> <p>10. Decree—when becomes final. It has been held, that a decree rendered on publication of notice, and where the defendant is not served with notice of the decree as provided by the statute, does not 'become final, in fact, until three years from the time it was rendered.</p> <p>11. Same—within what time bill of review or writ of error mgy be brought. And that in such case, where the defendant has received no actual notice of the pendency of the suit, or of the existence of such decree against him, a Mil of review or writ of error may be brought at any time before the expiration of five years after it thus became final.</p>

Charles D. Hodges, Judge, presiding. This was an action of assumpsit, brought by Graff against Simmons, on a promissory note executed by the latter in favor of the Winnesheik Insurance Company, and afterwards assigned to the plaintiff. The note was given for the cash premium on a policy of insurance issued by that company on the property of the defendant, the receipt of the premium being acknowledged in the policy.

<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 St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.

<p>1. Charitable uses—donations to. A donation of land for a site for a school house, is a donation to a charitable use, and equity will supply all defects of conveyance.</p> <p>2. Specific performance—promised donation. A person who makes a promise, upon the strength of which others are induced to expend labor or material, is bound in good faith to keep his promise.</p> <p>3. Laches—bad faith. One whose promises have induced others to act upon them, under belief they would be kept, can not impute laches to others in not discovering his bad faith.</p> <p>.4 Estates upon condition—colored pupils in schools. P having offered to donate a site for a school house, by a vote of the district, his offer was accepted, and building commenced. P then filed for record a deed to the district, of the site, but limited the use of the donation to white children only, with a forfeiting clause. On a bill to reform the deed according to the original donation, held, that whether white pupils and colored are, by law, now to occupy the same or different buildings, or not, a forfeiting clause in case colored children are admitted, can not be added to a conveyance of the site, when not embraced in the original offer.</p>

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

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

Joseph Gillespie, Judge, presiding In 1836, one Harris owned the premises in litigation, and attempted to convey the same to one Blair, but in the deed failed to name a grantee. This deed was recorded, and Blair went into possession, and subsequently conveyed to O’Connell. The latter gave a mortgage to Watson, with a power to sell at public sale; under this power, Watson conveyed to Crawford by a private sale.

<p>Writ of Error to the Circuit Court of Vermilion county; the Hon. James Steele, Judge, presiding.</p>

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

<p>1. Degree op evidence—in prosecution for obstructing highway. In an action to recover a penalty for an alleged obstruction of a public highway, in order to make out the plaintiff’s case, it is only necessary the defendant’s guilt should be established by a clear preponderance of the evidence. The action is a civil proceeding, and the rule governing criminal cases does not apply.</p> <p>2. -Instruction—as to whether an action is a favorite of the law. It is error to instruct the jury that such action is not favored by the law.</p> <p>3. Jury must decide the weight of evidence In such an action, it was held, erroneous to instruct the jmy, that the fact of the public traveling through a lane left by the owner of the land, did not amount to proof of dedication. It was for the jury to say how much that fact amounted to in the way of proof.</p> <p>4. Dedication—in what mode established. And an instruction directing the jury that the plaintiff was not bound to rely on the record alone to establish the existence of the road, but that he might rety on any facts which may constitute a road, that the road might exist part by record and part b3r dedication, and that if the owner of the land, through which the road run at the point of alleged obstruction, dedicated a portion of the road in question in exchange for a portion of a way laid out, the portion so dedicated would be a valid road, was regarded as improperly refused.</p> <p>5. To establish a highway by dedication, it is not necessary that an intention on the part of the owner of the land to dedicate the same at the time the public commenced using it, should be shown. Such intention may as well have been formed and entertained subsequently.</p>

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

<p>1. County treasurers—of their commissions upon money raised and paid out by the county. In order to raise the sum of $300,000, with which to pa)- for tiie old State House in Springfield, the Board of Supervisors of Sangamon county appointed certain persons as a committee to negotiate the bonds of the county for that purpose, which was done, and the proceeds of the bonds were paid by that committee directly into the State treasury, never having passed into the hands of the country treasurer at all. Til ere was no law which directed this money, specifically, to he paid to the county treasurer, nor gave him a commission for receiving and paying it out, specifically: Held, the county treasurer was not entitled to any commission upon the money so raised and disbursed.</p> <p>3. It was competent for the county authorities to appoint special agents to raise, receive and pay over to the Slate the special fund involved iu the purchase of the old State House.</p> <p>3. County .treasurer—of his commissions as county collector. The county treasurer, in counties under township organization, is made the county collector, hut when the county taxes are paid over to him by the town collectors, he receives them as treasurer, not as county collector, and is entitled to no commission on such moneys, as collector, hut only such as is prescribed by law for the duty performed as treasurer. The acts of 1853 and 1861, on that subject, construed.</p>

R. S. Canby, Judge, presiding. This was an action of ejectment, brought in the court below by Jackson Kelly, William Kelly and Mary Kelly against Seth Umfleet, to recover out lots one, two and three, in A. Kit oh ell’s out lots to the town of Olney, being a part of the southeast quarter of the northeast quarter of section 4, township 3, range 10 east.

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

Writ of Error to the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding. This was a suit in chancery, instituted in the court below, by Charles E. Cheney, against Samuel Chase and others, to enjoin the action of an ecclesiastical court, convened under the following circumstances: The Eev.