Volume 59 — Illinois Reports

<p>1. Heibs—who included therein. Under the word “ heirs ” are comprehended the heirs of heirs, ad infinitum.</p> <p>2. Witness—competency, under act of 1867. So, the second section of the act of 1867, which prohibits a party from testifying when the adverse party sues or defends “ as executor, administrator, heir, legatee or devisee of a deceased person,” with certain exceptions enumerated in the act, applies as well in favor of the heir by one remove as in behalf of the immediate heir. The true intent of the statute was to make the right of a party to testify a mutual right, and not to grant it, with the exceptions enumerated in the act, where the adverse party claims in a representative capacity under a deceased person.</p>

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

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Bailee, Judge, presiding.</p>

Clair county; the Hon.-Joseph Gillespie, Judge, presiding. This was an action of assumpsit on a promissory note, by Thomas Utley against William It. Tipton and others.

<p>Writ of Error to the Circuit Court of Perry county; the Hon. M. C. Crawford, Judge, presiding.</p>

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

Joseph Gillespie, Judge, presiding. This was an action of covenant, commenced June 18, 1869, by Silas Bent against August Richard, to the October term, 1869, of the St. Clair Circuit Court.

<p>1. Rescission of contract—-for withholding the consideration. A father, upwards of seventy years of age, induced by the promise of his son to support him and his almost equally aged wife, in comfort during the remainder of their lives, conveyed his farm to his son’s wife, and transferred to his son all his personal property. The son took possession of the farm, and by his continued unkind ness and ill treatment, in little upwards of a year compelled his parents to leave and take refuge with another child. Upon bill filed by the father to rescind the contract, it was held, if the rescission of the contract in cases of such character, could not be referred to any other head of equity jurisdiction, it would be proper to presume that it was made in the first instance with a fraudulent intent.</p> <p>2. And in this case, no accident, or misfortune, or unforeseen event of any kind having prevented the son from executing his agreement, and the record disclosing no provocation of any sort, nor any attempt at justification, the inference was regarded as unavoidable, that the son procured the deed from his father with intent to treat him in the manner lie did.</p> <p>3. Decree in favor of the “defenda?iis,” when all core not entitled. Where a grantor of land sought by bill in chancery to rescind the deed, making his grantees, and also a tenant in possession, parties defendant, and a decree was rendered setting aside the convc)nnce, but directing that the complainant pay to the “defendants” a certain sum for improvements: Held, as all the defendants would, by the terms of the decree, be entitled to participate in the sum so directed to be paid, when the tenant was not entitled to any part of it, the decree was, to that extent, erroneous.</p>

<p>' Appeal from the Circuit Court of Clinton county; the Hon. Silas L. Beyah, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Crawford county; the Hon. Hiram B. Decius, Judge, presiding.</p>

<p>1. Principal and agent—warranty ly the latter. An agent, acting under a general authority from his principal to make the sale, sold to another two mules, and the principal subsequently ratified the sale by accepting from the agent the note given for the purchase money: Held, the principal was bound by any warranty of the agent, to the purchaser, in regard to the soundness of the mules.</p> <p>2. Breach of warranty in part, as to personal property—recovery of purchase price. In an action on a promissory note, given .for the purchase money of two mules, as a defense thereto the defendant set up an alleged warranty, by the plaintiff, that the mules were sound, averring that they were unsound and by reason of which they both died. The evidence established the fact, that one of the mules was sick before the sale, but as to the other there was some doubt as to whether there had been anything the matter with it at the date of the sale. The defendant not. having offered to return the property and rescind the contract, on the ground of the deceit practiced, an instruction which directed the jury in case there was a warranty, that if either of the mules was sick they should find for the defendant, was regarded as erroneous, inasmuch as it did not follow, that if one of the mules was unsound the plaintiff could not recover for the other, if sound, notwithstanding the warranty.</p>

<p>1. Assignment of promissory note—proof of, when necessary and when not. At the common law, in an action on a promissory note by an assignee thereof against the maker, the plaintiff is required to prove that the indorsement was made by the person by whom it purports to have been made, and where the indorsement is special, that the indorsee is the person described in it.</p> <p>2. Though, when the handwriting of the indorser is proved, possession of the note might be prima fade evidence of ownership.</p> <p>3. The 59th section of the Practice Act (R. S. 421), which declares that “in actions upon bonds, notes, and all other writings made assignable by law, in the name of the assignee, the plaintiff shall not be held bound to prove the assignment or the signature of any assignor, unless the fact of assignment be put in issue by plea, verified by the affidavit of the defendant, or some credible person, stating that he believes the facts stated in the plea are true,” does not apply, unless the plaintiff declares specially upon the instrument.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p>

Writ of Error to the Circuit Court of Lawrence county: the Hon. K.. S. Canby, Judge, presiding. This was an action of ejectment, brought by Gold against Johnson, to recover certain premises. A trial by jury resulted in a verdict for the defendant. A new trial being awarded, the defendant again recovered a verdict, upon which the court entered judgment. The plaintiff brings the record to this court.

<p>Writ of Error to the Circuit Court of White county; the Hon. James M. Pollock, Judge, presiding.</p>

<p>Evidence—presumption. A party purchased of another a lot of mules at a specified price per head. In an action by the vendor against the purchaser for the price of a portion of the mules, the rest having been paid for, the plaintiff declaring on the common counts, to which the general issue was filed, with a notice of set off, the defendant relying upon an agreement that the payment was to be settled with a third person, it was held, the plaintiff having proven the sale of the mules to the defendant, it devolved upon the latter to show that the purchase was not in the usual course of business, and that some special contract or agreement was made in reference to the purchase, to rebut the presumption that the money was to be paid to the .vendor.</p>

Writ of Error to the Circuit Court of Clinton county; the Hon. Silas L. Bryan,. Judge, presiding. This was a prosecution for malicious mischief. The indictment charges the defendant with maliciously breaking, tearing, and pulling down a plank and post fence, and destroying the same.

<p>Evidence—proving testimony of deceased witness on formes’ ts-ial—act of 1867. In an action on a promissoiy note, against the administrator of the maker, on which the same party had previously brought suit against the maker in his life time, the latter testifying therein in his oivn behalf in relation to the note, but-the former took a non-suit, the defendant offered to prove by atvitness who was a juror on the trial of the former suit, and who stated that he remembered t-lie testimony of deceased at that time, Avhat the deceased testified to in relation to the note, and how his signature thereto was obtained: JETild, the evidence, being material to the issue, Avas competent as falling within the general rule that the testimony of a deceased witness, on the same subject matter between the same parties, may be given on a second trial by any one who remembers it, whether the testimony Avas reduced to Avriting or not. Although the action was against an administrator, there is nothing in the act of 1867 that renders such testimony incompetent.</p>

R. S. Canby, Judge, presiding. This was a proceeding in the Richland circuit court, for partition and assignment of dower.

<p>1. Recovery on the common counts—or on special count. In an action under the common counts to recover for work done by the plaintiff for the defendant, it appeared there was a special contract in writing for the performance of the work, and the work had. been only partially completed. There was no abandonment of the contract by mutual consent, and no rescission thereof by any act of the defendant: Held, the rights of the plaintiff should be determined by the contract alone,—he could not recover under the common counts, the price of the work already performed.</p> <p>3. Nor did the mere fact, that the parties had had an accounting, showing the amount due the plaintiff, and the expression of an intention on the part of defendant to send him some money, have the effect to authorize a recovery of that amount in such an action.</p>

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of assumpsit, brought by Martin Herr, as executor of Adam Herr, deceased, against William Reeves, Jr. The declaration contained the usual common counts for goods, wares, etc., sold to Adam Herr, in his lifetime. To this declaration the defendant filed two pleas. First, general issue, and second, the plea of the statute of limitations.

<p>1. Oosteact—of its certainty. A party executed a bond to a railroad company, covenanting therein to convey to the company, in consideration of the construction of their road, depot and station house, in a certain locality, the right of way through a certain tract of land belonging to him,, “and also seven acres of land in said section, tract and orchard, adjoining to said right of way on either side thereofEeld, the instrument was not so uncertain in its terms as for that reason to be declared a nullity, and that the bond must have been understood by the parties as requiring a conveyance of the right of way wherever the company might choose to establish their track, and a strip of land of uniform width extending along the railway through the entire tract described in the bond, and having three and one half acres on each side of the right of way.</p> <p>% Specific performance—to what extent decreed. But the company having so constructed their road as to leave a tract containing but nine-tenths of an acre on one side of the right of way, it was held, erroneous, in a suit for the specific performance of the contract, to decree to the company the nine tenths of an acre on that side, and six and one tenth acres on the other. The company were at liberty so to locate their road as to entitle them to seven acres, and not having chosen to do so, they can not claim an equivalent on one side of the right of way for what they have voluntarily abandoned on the other.</p> <p>3. Same—of parol conditions with third persons. Upon its being contended that the bond was delivered by the obligor therein to a third person, to be held by him until the citizens of the town, in which the tract of land was situated, should raise and pay the sum of $350, as a further consideration for the conveyance, estimated to be one half the value of the land, which was never done, but of which condition the company had no knowledge, it was held, the bond having been delivered to the company, they, having acted in good faith upon its terms, had the right to insist upon their performance without reference to any parol conditions or agreements made with other parties, and of which they were ignorant.</p>

<p>1. Evidence in chancery—how preserved. Where the evidence in a chancery proceeding is not preserved, but it appears from the decree that the court found, upon the evidence, certain facts, upon which the decree is based, it is sufficient—it is not necessary that the decree should contain a recital of all the evidence heard.</p> <p>2. Chancery—trial on Mil and answer—waiver. Where, in a suit in chancery, the defendant, at the return term, filed his sworn answer to the bill, and no replication being filed, the court ordered that the cause be set down for hearing on bill and answer at the next term of the court, upon objection that the court below erred in proceeding to hear evidence in the case, it was held, the defendant having appeared, and without objection, proceeded to trial on the evidence, he thereby waived his right to insist that the trial should have been on bill and answer.</p> <p>3. Dower—oath of commissioners. In a proceeding by petition for assignment of dower, where the report of the commissioners appointed to assign dower stated that they were duly sworn in open court, but the character of the oath taken nowhere appeared in the report or other portions of the record: Held, this omission in the record was fatal. The statute is peremptory that the commissioners shall take an oath, and what it shall contain is specifically prescribed. It must appear that the oath conformed to the requirements of the statute.</p> <p>4. In such a proceeding, and as to such a requirement, it is for the party relying upon the action of the commissioners to show that the statute has been pursued, and it is unnecessary that any exceptions should be filed to the report of the commissioners, to render tenable, on error, the objection that their oath did not conform to the statute.</p> <p>5. Decree—on assignment of dower—where a sum is decreed in lieu of dower. Where a sum, to be paid annually, is decreed the widow, in lieu of dower, it is proper to decree that an execution may issue for the collection of the same, in case of default in the payment thereof; but when a lien is retained on the land, the decree should require it to be first sold under the execution.</p>

Silas L. Bryan, Judge, presiding. On the 6th of April, 1870, John Michan, State’s attorney for the second judicial circuit of the State of Illinois, on the relation of several persons, filed in the circuit court of Washington county an information in the nature of a writ of quo warranto, against Daniel Hay and others, alleging, that by act of the State legislature of March 31st, 1869, the “city of Nashville” was incorporated ; that by sec. 1 of article 2 of the city charter,…

<p>1. Purchase money—failure of tille. A purchaser of land, receiving a deed therefor with covenants of title, can not avoid the payment of a promissory note given for the purchase money, on the ground that the grantor had no title, if his-possession has not been disturbed, nor the paramount title asserted.</p> <p>2. The grantee can not retain the benefit of the covenants in the deed from his grantor, and the possession of the premises, and yet avoid the payment of the purchase money.</p> <p>3. Vendor and purchaser—rescission of contract for fraud—placing vendor in statu quo. If a party has been induced, through fraudulent practices of his grantor, to take a title which subsequently fails, he may apply to a court of equity to have the contract cancelled, but before he can do so, he must place the opposite party in statu quo by reconveying the land, or at least releasing the covenants and surrendering the possession of the premises to his grantor. In such cases, equity will not require the purchaser to pay the purchase money, and rely for indemnity on his covenants.</p>

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

<p>1. Paetition—of the lands of infants—a court of chancery the guardian of infants. The right of partition of lands among several owners, and the consequent sale, if not susceptible of division, is not absolute in all cases.</p> <p>2. So upon bill filed for partition, b.y a guardian, in the names of his wards, who were the owners of the fee, their father, who was made defendant, being tenant by the curtesy and consenting to the relief sought, it appeared the land was worth $80 per acre, was underlaid with coal, and from its favorable location, likely to increase in value, and worth $3 per acre rent. The land not being susceptible of division, would have to be sold, and no reason was shown why a partition should be had: Hdd, though the land was then less productive than the proceeds of. a sale in money, yet it was a safer investment for the infant owners than money loaned, and, under the circumstances, their interests would be best subserved by refusing to permit a sale, which a court of chancery, in the exercise of its general supervision over the rights and interests of infants, ought to do.</p> <p>3. Same—in mew of the rule of distribution, under the life tables. Another objection to the relief sought, in this case, was, that in distributing the proceeds of a sale according to the tables of mortality, which would afford the rule of distribution, the tenant by the curtesy, who was forty-one years of age, would take 67 53-100 per cent of the proceeds, and to the children 32 48-100 per cent. This would give the father too much as against the children.</p> <p>4. Life-tables—whether just in their application. While life-tables may be resorted to, they can afford but a mere expectancy of the continuance of the particular life. They are, doubtless, correct in the aggregate, but can not be when applied to individual cases.</p>

Writ of Error to the Circuit Court of Jersey county; the Hon. Charles D. Hodges, Judge, presiding. This was a suit in chancery, commenced by Asa Snell against James A. Piggott, and Susan J. Piggott, his wife, to foreclose a mortgage executed by the defendants on certain premises described in the bill.

Silas L. Bryan, Judge, presiding. This was an action brought in the court below, by Lewis M. Henry and Robert K. Madden, against Jacob C. Wirtz, to recover damages for alleged fraud and deceit practiced by the defendant in inducing the plaintiffs to exchange a stock of goods for a certain patent right.

Silas L. Bryan, Judge, presiding. This was an action on the case, brought by Amira Kelson against the Illinois Central Railroad Company, to recover for injuries to the plaintiff, caused by the alleged wrongful act of the defendants. A trial by jury resulted in a verdict for the plaintiff for $50, on which judgment was entered. The defendants appealed.

Joseph Gillespie, Judge, presiding. M. P. Blackburn, on the 4th day of January, 1867, excuted to Max. Weisinberger a chattel mortgage on certain property to secure the payment of a promissory note due on the 4th of July of the same year. The mortgage contained a provision that the property should remain in the possession of the mortgagor until default in the payment of the note, and was duly recorded.

<p>Service of a summons after the return day thereof, is insufficient to give the court jurisdiction of the person of the defendant—is a nullity."</p>

of Madison county; the Hon. Joseph Gillespie, Judge, presiding.

<p>1. Life insurance—renewal receipt. Where a policy is issued to insure the life of a person for the term of life, in consideration of the premium paid, aud to be paid annually during its continuance, a receipt given for the annual premium, and which recites that the policy was thereby continued in force for another year, does not constitute a new contract but merely operates to continue the old one.</p> <p>2. Same—effect of misrepresentation. The wife of the party whose life was insured, and for whose benefit the policy was obtained, stated to the agent of the company at the time of procuring such a renewal receipt, in answer to his inquiry on the subject, that her husband, who was absent in another State, had written to her and that he was in his usual health: Hdd, in an action on the policy, the statement being verbal, and not referred to in the .policy, should be deemed to have been a mere representation. It was independent of the contract, and collateral to it. It may have been untrue, and yet not avoid the policy. To give it that effect it must be proved to have been material, and that it induced the risk.</p> <p>3. But even the failure to communicate a material fact, unknown to the assured, will not vitiate a policy. The undertaking is merely to represent, truly, facts within the knowledge of the assured.</p> <p>4. Same—of the allegations and proofs. In an action upon a policy of life insurance, the introduction of the policy, and receipts for the annual .premiums required by its terms to be paid, and proof of the death of the party whose life is insured, will make a prima facie case in favor of the plaintiff. He is not bound to set out the application and prove its truth.</p> <p>5. Same—of a warranty by the assured. A warranty is in the nature of a condition precedent; it must appear on the face of the policy; or, if on another part of it, or on a paper physical!)' attached, it must appear that the statements were intended to form a part of the policy; or, if on another paper, they must be so referred to in the policy as clearly to indicate that the parties intended them to form a part of it. A warranty can not be created nor extended by construction.</p> <p>6. Indecorous language towards the Judge below. Where counsel employ in their printed arguments in this court, improper and indecorous language respecting the judge below, such arguments will be stricken from the files, and such other action taken as will protect the circuit judges from like aspersions.</p>

<p>1, Incorporated cities—liability for injuries resulting from defective highways. Chartered cities are liable for injuries, resulting from neglect to keeii their streets in proper condition.* </p> <p>3. Same—of contributory negligence. In an action against a chartered city, to recover for injuries received by the plaintiff, by reason of being thrown from his wagon in going over a defective crossing, while his horses were running away, it was held, the fact, that one of the plaintiff’s horses had previously, on several occasions, run away, was not, of itself, a conclusive reason why the plaintiff should not recover.</p> <p>3. Such circumstance was properly left to the jury for them to consider, and weigh it in connection with the alleged negligence’ of the defendant, and in determining the degree of the plaintiff’s care or negligence in driving his team.</p>

<p>1. Railroads—carrying passengers beyond the proper station. If a railway passenger, holding a ticket entitling him to alight at a particular station, is carried past such station without his consent, and without being allowed a reasonable opportunity of leaving the train, he has an action against the company for whatever damages may have accrued to him for non-delivery at the place of his destination.</p> <p>2. Same—where passenger leaves the train while in motion. But if such passenger voluntarily leaps from the train when in rapid motion, or leaves it under circumstances which would necessarily or probably render such an act perilous, and receives bodily injury, he could not recover damages for the injury, because it would be the result of his own want of ordinary care.</p> <p>3. Though in case the passenger is not allowed a reasonable opportunity to alight, there being a slight stoppage of the train, but he attempts to do so after the train has resumed its motion, but before the motion has become at all rapid, and the stepping from the train would not seem dangerous to a man of ordinary prudence and judgment, and nevertheless bodily injury follows, in such case the passenger would be entitled to recover damages for the injury,—the passenger having a right to construe the momentary halt of the train, at the station, as an invitation to alight, and in his attempt to make use of such opportunity when not attended with apparent danger, being chargeable with no appreciable negligence, in comparison with the flagrant breach of duty on the part of the company in neglecting to afford a reasonable opportunity to leave the train in safety.</p> <p>4. Jury—finding a verdict by compromise. Wliere a jury in their retirement, in considering their verdict, as appeared from I he affidavit of the officer having them in- charge, after agreeing to find- for the plaintiff, but differing 'widely as to the amount' of damages, agreed that each juror should privately write upon a slip of paper the amount of damages to which he thought the plaintiff entitled, and put the slip in a hat, and that the sum obtained by adding the amounts together and dividing by twelve, should be their verdict, which was done, and a verdict returned accordingly : JIM, that while jurors may resort to such a process as a mere experiment, and for the purpose of ascertaining how nearly the result may-suit the views of the different jurors, yet a preliminary agreement, that such a result shall be their verdict, will vitiate a verdict found under and by virtue of such an agreement; and although one of the jurors swore there was" considerable consultation after the process, and that each juror agreed upon the result thus reached as his verdict, it was still regarded that the verdict had been found under the pressure of the agreement.</p>

Writ of Error to the Circuit Court of Union county; the Hon. John H. Mtjlkey, Judge, presiding. This was an action of ejectment, brought by William Penninger against Margaret Kesler and ,others, to recover the possession of certain premises, of which the plaintiff claimed to be the owner in fee. A trial by jury resulted in a verdict and judgment for the plaintiff. The defendants bring the record to this court.

Silas L. Bryan, Judge, presiding. This was a bill in chancery, filed by John Clabaugh and Anthony Hubert against David Mallen, Anthony Zuriseller, and Friedrich A. Lietze, to compel said Zuriseller to sell certain real estate under a mortgage executed by David Mallen to said Zuriseller.

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

Writs of Error to the Circuit Court of Madison county. These were garnishee .proceedings, commenced by George Miessel and Henry Vetter, against Clemen tz Horat and others, upon judgments obtained by them in the circuit court of Madison county against George Jackel, and on which executions had been issued, and returned no property found.

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

William P. Murphy, Judge, presiding. This was an action- of assumpsit, brought on a promissory note given by Witbord to Gardner. The question arises upon the writ, which was as follows: State of Illinois, i Randolph county.

<p>Writ of Error to the Circuit Court of Crawford county • the Hon. H. B. Decius, Judge, presiding.</p>

<p>Trover—whether it will lie. In an action against a railroad company, it appeared the plaintiff had hauled out and delivered on the line of defendants’ road a certain number of fence posts, for the purpose of selling the same, at a place where fence posts were delivered for and received by the builders of defendants’ road; that the posts, without the knowledge or consent of the plaintiff, were loaded on a construction train on defendants’ road and taken away and used, by the employees of McKcen, Smith &Co., to fence the defendants’ road; that the defendants had made a contract with McKeen, Smith & Co., to construct and fence their road for a stipulated price, and for that purpose had given them the exclusive control over the road until its completion, all the earnings over and above the cost of operating the road, to be paid over b} the contractors to the company; that before the institution of the suit the road had been fully completed and turned over to the defendants. The plaintiff had no contract with the defendants in regard to the posts: Held, the posts having been placed upon and attached to the lands of the defendants by the contractors, while they were operating the road and without the plaintiff’s consent, thus becoming a part of their realty and thereby being in the possession of the defendants, the plaintiff could maintain an action of trover against the company for the value of the posts.</p>

<p>1. Constitutional Law—validity of the act of 1867, “ to establish a police force for the city of Bast St. Louis." The decisions in the cases of Lovingston v. Wider et al. 53 Ill. 302, and The People ex rel. Wider et al. v. Canty, 55 Ill. 33, holding that the police commissioners of the city of East St. Louis, appointed under the act of 1867, had no power to create a debt against the city, re-affirmed.</p> <p>2. Admission of evidence—without objection—wJiether conclusive as to its legal effect. In an action of debt against the city of East St. Louis, upon certain certificates of indebtedness, termed scrip, issued by such police commissioners, it was held, while the admission of such certificates as evidence, without objection, precluded the defendant from raising any question as to the execution of the certificates, or their genuineness, yet it did not preclude it from questioning their legal effect as a basis of recovery, either upon the argument of the case before the court, or upon a motion for a new trial.</p>

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

Writ of Error to the Circuit Court of Clinton county; the Hon. Silas L. Bryan, Judge, presiding. This was an action on the official bond of a constable against the constable and his sureties. A trial by jury resulted in a verdict and judgment for the plaintiffs. To reverse the judgment, the defendants bring the record to this court.

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p> <p>George W. Thomas was indicted, in the court below, for selling a lottery ticket to John McAuley. A trial resulted in a finding of guilty, and the assessment of a fine of §100, and costs.</p> <p>The defendant thereupon sued out this writ of error.</p>

<p>1. Possession—as notice to subsequent purchasers. Where a vendor of land continues to remain in possession of the premises, such possession will constitute constructive notice to a subsequent purchaser from his vendee, of the rights and equities of the first vendor in the land, and the second purchaser will hold subject to those rights and equities.</p> <p>2. Escitow—where a deed intended as an escrow is put upon record without the knoicledge or consent of the grantor. Where a vendor of land executed a deed and left it in the hands of the officer taking the acknowledgment, to be by him delivered to a third person -who was to hold it as an escrow until the purchase money should be paid, but, without ever having come to the hands of him who was to hold it as an escrow, the deed was placed upon record, without the knowledge or consent of the grantor, it was held, the agreement between the parties that the deed was not to be delivered or recorded until the purchase money should be paid, continued until changed by the consent of the vendor, and a subsequent purchaser from his vendee, with notice, would hold subject to the rights and equities of the first vendor, arising from such agreement.</p> <p>3. Same—what would amount to a delivery of the deed. In case of a sale of the land by the first vendee, and the acceptance by his vendor of the notes of the second purchaser for the unpaid purchase money due the former, together with a mortgage from the latter on the same premises, to secure such notes, which were taken in lieu of the notes given by the first purchaser, a recognition by the original vendor, of title in the mortgagor, would be implied thereby, and his assent to the delivery of his deed to his vendee.</p> <p>4. But such a transaction would not, of itself, import that the assent of the original vendor, to the delivery of the deed, was given at any time prior to the acceptance of the notes and mortgage of the second purchaser, nor would it necessarily imply a ratification of the obtaining possession of the deed and putting it on record, contrary to the agreement in respect thereto. The legal intendment could be no more than that the first vendor consented to a change in the form of his security, and assented to the deliveiy of the deed to his vendee, on the condition that he should, at the same time, receive back a mortgage of the lands to secure the payment of what remained due to him.</p> <p>5. Same—and herein, of an intervening incumbrance. The assent by the original vendor to the delivery of the deed to his vendee, and his acceptance of the mortgage from the second purchaser, being simultaneous acts, and tlic title resting but for an instant in either veMee, a deed of trust executed by the first vendee to a third person prior to that transaction, would not attach as a lien upon the land, to the prejudice of the subsequent mortgage, merely by reason of the title remaining in the maker of the deed of trust or the subsequent mortgagor for the brief interval necessary to the consummation of the transaction, as would have been the case if it had so remained for any time.</p> <p>6. Vendor and purchaser—subsequent incumbrancer. Where a vendor of land has received a part of the purchase money, and seeks, by foreclosure of mortgage, to compel the payment of the residue, he is entitled to retain what he has received, and take a decree for the unpaid balance. In such case, it is error to decree a return by the vendor, of the portion of the purchase money already paid.</p> <p>7. And in case the vendee has given a deed of trust on the premises, to a third person, who became the purchaser at a sale thereunder, had prior to the foreclosure in favor of the original vendor, all the interest of him who made the deed of trust will pass to such purchaser, so that, if there be an overplus arising from the sale under the decree of foreclosure, it should be paid over to the purchaser under the deed of trust, instead of the original vendee.</p>

Silas L. Betas, Judge, presiding. This was an action of debt brought by Philip M. Gundlach and Jacob Esler, against George Fischer, Alexander H. Johnson, Thomas S. Pope, George Trible, Philip Meter, Martin Fischer, and Nicholas Muhlhauser.

Writ of Error to the Circuit Court of Perry county; the Hon. Morros C. Crawford, Judge, presiding. This was an action brought by Cottom against Holliday, in which the plaintiff seeks to recover of the defendant, money he claims the latter wrongfully received of him for the purchase money on a tract of land bought by the defendant, as agent of the plaintiff, from one Bitchie, in excess of the actual purchase price.

It. S. Cabby, Judge, presiding. . This was an action of assumpsit, brought by John K. McCleave against Elijah Gaddy, upon the following promissory note: $100. Lawbebce Co., III., July 12, 1868. One year after date, I promise to pay to the order of H. B. Graves & Co., one hundred dollars, with interest, value received, it being given for a right to clarify cider, ale, etc., etc. Elijah Gaddy. Ibdobsed : For value received, I assign the within note to J. K. McCleave.

<p>1. Special plea—amounting to general issue. To a declaration in an action on a promissory note against two defendants, alleging that tlic defendants executed and delivered the note to the plaintiff, a plea of one of the defendants, in form special, averring that the consideration for the note was received by his co-defendant, and was the individual debt of such co-defendant, and denying his joint liability, is bad on a special demurrer, that it amounts only to the general issue.</p> <p>3. Pleading—»/ the description of the maicera of a note—whether as partners. Iu an action on a promissory note, the plaintiff in the commencement of his declaration, complained of A B and C D, partners, etc., defendants, in a plea, etc., and then alleged that the defendants made their certain promissory note in writing, by which said note said defendants, 'by the name, style and description of A B, promised to pay, etc.: Held, the word “partners” in the commencement of the count was merely descriptive of the persons, and had nothing to do with the character in which the defendants executed the note, and hence, to such a count, a plea denying the partnership would present an immaterial issue, and a plea denying the execution of the note, verified, was a complete answer to the declaration.</p>

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

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

Writ of Error to the Circuit Court of Pulaski county; the Hon. John Olney, Judge, presiding. This was an action on the case, brought by Dunning against the railroad company, to recover the value of a mare belonging to the plaintiff, killed by the defendant’s engine and train. A trial in the circuit court resulted in a verdict and judgment for the plaintiff. The defendants bring the record to this court and ask a reversal of the judgment.

<p>Appeal from the Circuit Court of Marion county; the Hon. S. L. Bryah, Judge, presiding.</p> <p>The contract upon which this suit was brought, was as follows:</p> <p>Agreement between G. L. Chitwood, of Marion county, Illinois, and J. H. Silvers, of Cincinnati, Ohio, agent for the heirs of Edwin D. Dodd, deceased, witnesseth, and whereas, the said heirs are owners, and the said Silvers is agent for the following described subdivisions of section eleven, (11,) township two (2) north, range one (1) east, of third principal meridian, viz: Southwest quarter of northeast quarter, containing forty acres, more or less; also, the northwest quarter of the southeast quarter, containing forty acres, more or less, containing in all eighty acres, more or less. The said G. L. Chitwood agrees, that he will furnish good, sound, new rails, made of the best timber to be procured in said locality, necessary for fencing the above described eighty acres, and he further agrees that he will la) said fence with a four foot worm, six rails high, staked and double ridered, making eight rails and two stakes to each single panel all around said eighty acres, except where said eighty acres joins and is on the line with other property already under fence, and that portion of the line adjoining the southwest quarter of the northeast quarter, containing forty acres, and he agrees to lay the worm of said fence on chunks, to be properly placed under each single panel.</p> <p>He also agrees to properly set said stakes in holes not less than eight inches deep, and to completely fill up all the holes around said stakes, and that he will lay up said fence in a straight line, and the centre of said fence shall be on the line of said eighty acres, (as per survey of the county surveyor,) in the middle of said fence row. He also agrees, that said fence shall be laid up, including chunks, stakes, and ridering, completed, and done in the best husband-like manner. Said Chit-wood agrees that he will furnish the rails, stakes, riders, and chunks, and that he will lay the worm, put chunks under said fence, and lay it up in the manner aforesaid for six dollars ($6) for each and every one hundred (100) rails, stakes and riders, contained therein, as herein specified. Said Chitwood further agrees that he will, in a good husband-like manner, completely break up said eighty acres in time to prepare the same to be sown in wheat in the fall of the year 1869, in.consideration of the sum of $3 per acre to be paid him for said breaking.</p> <p>Said J. H. Silvers, agent, agrees to furnish the seed wheat, and the said Chitwood agrees to thoroughly prepare the ground, and sow the said eighty acres with the said seed, for which the said Chitwood shall be entitled to one half the products of the said crop, to be equally divided in the half bushel, between the said J. H. Silvers, agent, and the said Chitwood, when threshed, which the said Chitwood agrees to do at the earliest practicable period, after the wheat has been harvested, of which he agrees to give the said Silvers due notice. The said Chitwood further agrees that he will thoroughly prepare the ground of the said eighty acres, and sow the same in wheat, in the fall of the year 1870, upon the same terms and conditions as aforementioned for the year 1869; and at the same time he sows the said eighty acres in wheat, in the fall of 1870, he also agrees to seed the same in timothy grass, in a proper and husband-like manner, ón condition that the said J. H. Silvers, agent, furnish the seed therefor. The said J. H. Silvers, agent, agrees to pay the said Chitwood the sum of six dollars ($6) per hundred for the rails, stakes and riders, laid in the fence, as herein specified, and this amount is to include the entire cost to be paid by the said Silvers, agent, for fencing the said eight;- acres.</p> <p>The said J. H. Silvers, agent, also agrees to pay to the said Chit-wood the sum of three dollars (S3) per acre for breaking the said eighty acres, as herein specified, on the 1st day of January, 1870. The said Chitwood agrees that he will treat said land, while he is in possession of the same, or occupying it (on the conditions expressed) in a good husband-lilce manner, and that during sai'd period, he will keep said fences in as good repair as when he first completed the same, ordinary weai and tear excepted, and that he will use proper care to protect them against fire, and that he will put no crop thereon but a wheat and grass crop, as herein specified, and use it for no other purpose, and further, that he will yield up possession of the same, in the year 1871, as soon as the wheat crop is harvested and can be taken off, with the fences in as good order as when first completed, ordinary wear and tear excepted. • The said Chit-wood agrees to allow the said J. H. Silvers, agent, $5 per hundred for all rails, stakes or riders, furnished by him, properly distributed on the north line of said eighty acres, commencing at the northwest corner, and continuing eastward on the said eighty acres, previous to the' first day of August, 1869, such number of rails, stakes and riders, so furnished by the said J. H. Silvers, agent, to be deducted at the rate of $5 per hundred, from the amount of the said Chitwood’s bill for fencing, at the rate of $6 per hundred, as herein specified.</p> <p>J. H. Silvers, Agent, [l. s.]</p> <p>Green L. Chitwood, [l. s.]</p> <p>Odin, Marion Co. Ill., Feb. 17, A. D. 1869.</p> <p>Chitwood sought to recover $3 per acre for preparing the land for wheat in the fall of 1870, and the question is presented, whether that claim is sustained by a proper, construction of the contract.</p> <p>A trial resulted in a judgment against Silvers, from which he appealed.</p>

<p>1. Dedication of a street to the public—what constitutes. In the year 1817, the owner of the land on which the town of Golconda, in Pope county, in this State, is situated, laid off the same into town lots, streets and alleys, and made and recorded a plat of the town thus laid out. A memorandum was endorsed on the plat, defining the width of the streets and alleys, “ excepting Water street, which includes all of the ground from the front lots to the river. ” The plat was not signed or acknowledged. At that time there ivas no statute regulating the execution of town plats. This was held to be a sufficient dedication, by the common law, to the public, of all the ground between the lots fronting on the Ohio river, and the river itself.</p> <p>2. Same—estoppel—subsequent conveyance. The vendor of the party who thus laid out the town, having filed a bill in chancery to subject the lots to the paj'ment of the purchase money, and the sale under the decree in that suit being made according to the pint, purchasers at such sale would be estopped to deny the validity of the plat, and a conveyance by the commissioner who executed the decree, of the ground so dedicated to the public, would pass no title thereto.</p>

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

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p>

Silas L. Bryan, Judge, presiding. This was an action of trespass brought in the court below, by William B. Eagan, against Thomas E. Merritt, Samuel B. Carrigan, William B. Hubbard and Charles G. Pearson. The alleged cause of action, as appears from the declaration, was the breaking and entering the store house of the plaintiff, with force, by the defendants, and taking and carrying away therefrom certain goods and chattels, the property of the plaintiff.

Silas L. Bryan, Judge, presiding. This was an action of replevin, brought in the court below by William Lammers, against Detrick B. Meyer, to recover certain property described in the declaration as “ all the dry goods, groceries, hardware, queensware, notions, etc., being in the store house of William Lammers, in the town of Bridgport, Washington county, Illinois, ” of the value of $450.

<p>1. Pabtitiox—order of sale—when may be made. In a suit for partition it is an essential requirement of the statute", that, preceding the order of sale, the court shall declare the interests of the parties, order a partition of the promises, and appoint commissioners to make the division.</p> <p>2. Such preliminary orders, to the order of sale, can not be made after the sale has taken place, so as to support it.</p>

E. Gaskins, Judge, presiding. This was an action of assumpsit, brought in the court below, by Zebedee P. Curlee, against Henry H. Smith and George C. McCord. The declaration contained a special count upon a bill of exchange, of which the defendants were the drawers, also the common counts, and one on an account stated. The plaintiff recovered a judgment, from which the defendants appealed.

<p>1. Chancery—when the allegations of the bill must be supported by proof. Where the answers to a bill in chancery deny the allegations in the bill, or do not admit them to be true, the complainant is put upon proof of them, and where the record does not contain any evidence, and the decree fails to recite that the hearing was upon evidence, the action of the court below, dismissing the bill, will be sustained in the appellate court.</p> <p>2. Same—proof required as to infants. A default can not be taken against infant defendants in clianceiy, nor can a decree be Tendered against them without proof.</p> <p>3. Same—agreement as to proof on a former hearing. An agreement as to what the exhibits in a cause proved on the hearing, will not operate as evidence on a hearing subsequently had, upon a reversal of the first decree ; and if such agreement could be given any effect upon a second hearing, as to parties in court at the time it was made, it could not bind new parties to the record who gave no assent thereto.</p>

Clair county • the Hon. Joseph Gillespie, Judge, presiding. A writ of certiorari was issued, under the statute, upon, the following petition: “ John Hermann, the petitioner, represents that on the 2d day of November, 1870, Joseph D. Manners, judge of the city court of East St. Louis, in said county, issued a summons against petitioner, in favor of one Seth Butler, for a failure to pay him a demand not exceeding $800; that said summons was served upon him by the proper…

E. S. Canby, Judge, presiding. This was an action of assumpsit, brought by Mary P. Griffin against John H. McBride. The action was brought upon an account for the board of the defendant, and his hired hands avIio Ai’ere Avorking upon a bridge which the defendant was engaged in building.

<p>^ Writ of Error to the Circuit Court of Pope county; the Hon. John Olney, Judge, presiding.</p>

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

Silas L. Betas, Judge, presiding. This was a proceeding by the railroad company to condemn the right of Avay for its road over the land of Mollet. Damages Avere assessed, and a judgment rendered therefor, from which the company appealed.

<p>1. State and Federal courts—neither can interfere with the process of the other. The State courts can not enjoin proceedings in the courts of the United States, nor the latter in the former courts.</p> <p>8. The defendant in an execution issued upon a judgment- rendered in the circuit court of the United States, upon bill filed in a State court, sought to enjoin, not directly, the plaintiff in the judgment, or the United States officer charged with the execution, but only a third person, who, it Avas alleged, caused the execution to be issued, and controlled the same, and asked that he might be restrained from any further action in respect to the execution, or in the collection of the judgment, and that he be required to command the officer having the execution, to take no further proceedings under it. This was regarded as an attempted interference with the execution of process from a United States court, and within the rule prohibiting such interference by a State court.</p> <p>3. Chancery—whether a bill will be retained after Us principal purpose has failed. Where a bill was filed for the purposes of an injunction, and also asked an accounting between partners, but the bill shewed there had already been a settlement between the partners and a balance due the complainant agreed upon, it being determined the injunction would not lie, it was held, the bill could not be retained for the mere purpose of compelling the payment of the balance struck on the settlement between the partners, tlie complainant having an adequate remedy at law therefor, and there being no allegation of fraud or error- in the settlement as a ground for equitable cognizance.</p>

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

<p>Appeal from the County Court of Bond county; the Hon. Enrico Gaskins, Judge, presiding.</p>

<p>1. Incorporation—telegraph company, fraudulent organization. A number of persons organized a telegraph company, and one of the number subscribed for nearly all of the stock and transferred it to another person to hold as trustee, and to represent and sell the same, but no money was to be paid by those organizing the company, and such subscriber, by contract with the company, undertook to build two thousand miles of line, but the agreed price was largely above the cost of construction; an election was held, where a large number of well known business men, not stockholders, or consenting thereto, were elected directors; a circular was issued referring to the objects and prospects of the company, and the names of these persons were given as directors, and in the same circular persons were solicited to subscribe for stock, and it was stated that on the payment of forty per cent on the share a certificate of stock would be issued, and no further call would be made thereon. It was also provided, by a by-law, that no general meeting of the stockholders, or election of directors, should be held until the two thousand miles of line should be built and equipped, or until the persons holding a majority of the stock should petition the president to call a meeting. Many persons became subscribers and paid forty per cent on their stock, and four hundred and seventeen and one half miles of line was constructed at a cost of $126,550.90, and $25,000 had been paid on work not completed: Held, that the scheme was fraudulent, intended to enrich the contractor, and the plan so devised that the bona fide stockholders should not have any control of the affairs of the company, by electing directors, until two thousand miles of the line should be completed.</p> <p>2. It was further held, that the bona fide stockholders should have relief, and that the lines constructed belonged to the subsequent subscribers whose money built them, and that the contracts should all be set aside; the amount of money paid by the subscribers ascertained, and certificates of stock to be issued to them so far as paid for, at forty per cent. An election was directed to be called for a new board of directors by such stockholders, at which election only actual holders of stock subscribed and paid for should be allowed to vote, and if a settlement should not be made by the new directors with the contractor, satisfactory to the court, the cost of constructing the lines already built, as nearly as possible, to be ascertained and the contractor to be allowed the cost and a reasonable compensation for his time and labor, and the court was directed to render a decree against him for any excess, to be paid to the treasurer appointed by the new board. The president and secretary were required to produce all books and papers that might be necessary in the adjustment, and if tli e company, as now organized, interpose any obstacles in the way of carrying- the orders of the court below into execution, a receiver to be appointed to take charge of the entire affairs of the company.</p>

<p>1. Judgment—jurisdiction. Where a court of general jurisdiction receives the confession of a judgment, the presumption will be indulged that the court heard evidence that the claim was due, and proof of the execution of the power to confess the judgment. Such evidence need not be preserved in the record.</p> <p>2. Power of attorney—description of the note. When a power of attorney is written on the same paper and below the note, and refers to the “foregoing note,” and describes it correctly except as to the time when it was to begin to draw interest, the description is sufficient to identify the note, and the presumption is, the judgment was confessed on the note as authorized by the power of attorney. Such a case is not the same as where the judgment is confessed on a note entirely diifcrent in date from that described in the power of attorney. The case of Chase v. Dana, 44 Ill. 262, considered and distinguished.</p> <p>3. Jurisdiction—presumption of. The presumption is in favor of the jurisdiction of a court of general jurisdiction, without the facts appearing in the record; on the other hand, there is no presumption in favor of the judgment of a court of inferior and limited jurisdiction; but the facts must appear in the record, showing the jurisdiction. Nor can the judgment of a court of general jurisdiction be attacked in a collateral proceeding by extrinsic evidence. If it appear from the record in the case that the court did not or could not have had jurisdiction of" either the subject matter or the person of the defendant, then the presumption in favor of the judgment would be overcome.</p> <p>4. Sheriff’s sale—land—its division. When the sheriff sells lands en masse, which could have been divided without injury to the parties, it is an irregularity that would enable the defendant to avoid the sale, on motion or otherwise, before the time for redemption expires, but it does not render the sale void.</p> <p>5. Sheriff’s sale of land—notice. Where a sheriff sells lands under execution on a defective or insufficient notice, the sale is not void, or even voidable, unless the purchaser has notice of the irregularity. And 6onaftde subsequent purchasers, without notice, can not be affected by such noncompliance with the statute.</p> <p>6. Same—postponement of sale. Where the sheriff published the notice of the sale, as required by the statute, and subsequently inserts under it: “ The above sale is postponed until the 30th day of November, 1861, ” which was not signed by the sheriff, but was, with the notice, published in three weekly issues of the newspaper: Held, that the notice of postponement of the sale thus made was sufficient, and the fact that it was only thus published sixteen days, did not render the sale void, but voidable, by the defendant, if urged in apt time.</p> <p>7. Sheiubt’s ketubn. The return of the sheriff that he had made the sale," even if it showed a defective notice of the sale, could not affect the rights of the purchaser. The statute has not made such return evidence of any fact, nor is it a link in the chain of title, and neither immediate nor remote purchasers can be affected by it.</p> <p>S. Pbaotice—of specific objections. Where a sheriff’s deed was read in evidence, and only a general objection was interposed at the time, the objection can not be urged for tlie first time on error that the deed was not acknowledged before a proper officer. Had that objection been made on the trial, it could have been obviated by proving the signature of the sheriff.</p>

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

<p>Appeal from the Superior Court of Cook county.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. John A. JamesoÍt, Judge, presiding.</p>

Writ of Error to the Circuit Court of Peoria county; the Hon. Sabin D. Puterbaügh, Judge, presiding. This ivas a prosecution for an alleged obstruction of a public higliAvay, and for continuing such obstruction.

<p>Fraud akd circtoivention—in obtaining the execution of a promissory note. In au action on a promissory note for the sum of $50.55, brought by an assignee thereof before maturity, against the maker and his surety, there was evidence introduced tending to show that at a public sale had by the payee of the note, the principal maker bought some hedge plants to the amount of $5.50; that the clerk of the sale wrote the note, aud told the defendants at the time they signed it, iu the presence of the payee, that it was for the sum of $5.50 and 5 cents for a stamp, making in all $5.55; that in belief of such statement of the clerk the defendants signed the note, not knowing it was for the sum of $50.55, and that they could not read English, the language in which the note was written: Held, such evidence tended to make out a case, not merely of fraud relating to the consideration of the note, but of such fraud and circumvention in obtaining its execution as, under the statute, avoided the note in the hands of a bona fide assignee before maturity.</p>

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

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

<p>1. Forcible entry and detainer—of the possession required. The plaintiff, to recover in an action of forcible entry and detainer, must show that he had, at the time of the alleged entry, the actual possession of the premises described. A mere constructive possession, such as the fee simple title to the land entered upon draws to it, is not sufficient.</p> <p>2. Same-—title not involved. The question of title is not, in any sense, involved in the action.</p> <p>3. Same—plaint and'evidence under. Proof that the plaintiff was possessed of a part of the premises described in the complaint, does not authorize a recovery of such part. The act regulating the action requires a particular description of the premises to be made in the complaint, and the proof must follow aud conform to the description therein.</p> <p>4. Same—limitation. The action in England, from whence we derive it, was a criminal proceeding, and a prosecution was barred in three years after the right of action accrued. But in this State the action has been changed by express law, from a criminal to a civil proceeding, and no express limitation has been furnished. This was doubtless a casus omissus on the part of the legislature.* </p>

<p>1. Entry by force—to remove fixtures. It is not lawful for a party, claiming that certain things placed in a building are fixtures, to make a forcible entry on the possession of the owner or his tenants, to remove such fixtures, and the party in possession would have the right to use a sufficient amount- of force to prevent such an entry.</p> <p>3. Injunction. A court of chancery will not assume- jurisdiction to restrain a mere breach of the peace, or ordinary trespass, where the resulting injury is not, in its nature, irreparable.</p> <p>3. On the other hand, the party claiming the property as fixtures, lias the right to have his title tried in the courts, and may, in such case, resort to the writ of replevin to obtain possession. Nor would the fact that the claimant was insolvent, change the right. The party resorting to such a writ would, before it could be executed, have to give bond as required by the statute, and hence, it would be error to enjoin the bringing of such a suit.</p> <p>4 Breach of the peace—threats of. Where a party threatens to commit a breach of the peace, the other party can resort to criminal proceedings, and have the party making the threats bound to keep the peace as to person and property. Such threats would not give a court of equity jurisdiction to restrain the party.</p> <p>5. Dissolution of injunction—assessment of damages. To confer jurisdiction on the court to hear evidence and assess damages, on the dissolution of an injunction, suggestions in writing should be filed, stating the nature and amount of the damages claimed. The plaintiff should thus have notice of the claim set up against him, and it is error to make the assessment-withcmt such suggestions.</p> <p>6. Damages, assessment oe^—evidence to he preserved.' In assessing damages in such cases, it is necessary that the evidence heard on the assessment should be preserved in the record as in other chancery proceedings, and failing to preserve the evidence in the record, there is nothing to sustain the decree for damages, and it will be reversed.</p>

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

<p>1. Sale oe chattels—delivery—trover—case. Where a person sold to another a quantity of flour, for cash, to be delivered by a particular day, and a portion was delivered and paid for previous to that day, and the balance was delivered on the last day for delivery, which was on Saturday, and on its delivery the purchaser drew a check on a bank, but on being presented on the same day, it was dishonored, and the declaration avers that the delivery was obtained by fraud, on a trial in such a case, it is error to instruct the jury that if there was such fraud as would allow the seller to maintain trover or case against the buyer and his partner who held the flour, a design to defraud the seller must have existed when the purchase was made.</p> <p>3. Coktbact—minor. Where a minor makes such a purchase, and procures the delivery by fraud, he will be liable as in tort. The mere fact that he made the contract, and by fraudulent means obtained possession of the property, will not shield him from liability to suit, in case or in trover.</p> <p>8. Checks —fraudulent. Where a person draws a check on a person in whose hands he has no funds, and who, he has no reason to believe, will honor the check, the drawer is guilty of a fraud, and in such a case as the present, it is error to refuse to so instruct the jury.</p> <p>4. Sale—payment. Where property is sold, to be paid for on delivery aud it is delivered, and the purchaser, refusing to make payment, appropriates the property to his own use, trover will lie. In such a sale, payment is a condition precedent; but if the seller deliver fully aud unconditionally, lie thereby waives the condition of precedent payment, and the right of property passes to the purchaser; but if there is no waiver, it is otherwise, aud the rule does not apply where the goods are delivered with the expectation of simultaneous payment, and the purchaser holds the property and refuses to pay—that amounts to a conversion. A check not drawn against funds, is not payment; it is received but as a means of payment.</p>

<p>New trial-—verdict against tte evidence. In this caso the evidence was regarded as sufficient to sustain the verdict.</p>

<p>1. Demurrer to evidence—what is admitted thereby. Where a demurrer is interposed to tlie evidence, the rule is, that the demurrer admits not only all that the plaintiff’s testimony has proved, but all that it tends to prove.</p> <p>2. Remote and proximate cause—of the rule and its application. If fire is communicated from a railway locomotive to the house of A, and thence to the house of B, it is not a conclusion of law that the fire sent forth by the locomotive is to be regarded as the remote, and not the proximate, cause of the injury to B, but that is a question of fact, to be determined in each case by the jury under the instructions of the court.</p> <p>3. The rule is, to determine in every instance whether the loss was one which might reasonably have been anticipated from the careless setting of the fire, under all the circumstances surrounding the carelqss act at the time' of its performance. If loss has been caused by tlie act, and it ivas, under the circumstances; a natural consequence which any reasonable person could have anticipated, then the act is a proximate cause, whether the house burned was the first or tlie tenth, the latter being so situated that .its destruction is a consequence reasonably to be anticipated from setting the first on fire.</p> <p>4. If, on the other hand, the fire has spread beyond its natural limits by means of a new agency—if, for example, after its ignition, a high wind should arise, and carry burning brands to a great distance, by which a fire is caused in a place that would have been safe but for the wind—such ,a loss might fairly be set down as a remote consequence, for which the railway company should not be held responsible.</p> <p>5. In this case, which was an action against a railway company to recover for the loss of the plaintiff’s house by fire, alleged to have been occasioned by the negligence of the company, it appeared that a locomotive, with a train of freight cars, belonging to the defendant, in passing castwardly through a village, threw out great quantities of unusually large cinders, and set on fire two buildings and a lumber yard. The weather at the time was very dry, and the wind blowing freely from the south. One of the buildings ignited by the sparks was a warehouse near the track. The heat and flames from this structure speedily set on fire the building of plaintiff, situated about two hundred feet from the warehouse, and destroyed it. It was held, the company was not exonerated from liability merely because the plaintiff’s house was set on fire, not immediately by cinders thrown from the locomotive, but by the burning of another house. The case was one calling for the application of the rule before announced, the liability of the company depending upon the question whether the second house was so near the first that, in the then state of the wind and weather, its destruction was a natural consequence of the burning of the first, which any reasonable person could have foreseen and would have expected.</p> <p>6. Same—how the rule affected by the extent of loss to the wrong doer. The propriety of the rule for determining what is a proximate cause of the injury in sucha case, can not be affected by considerations as to the extent of liability to which railway companies might be thereby subjected, even to producing bankruptcy, and compelling them to suspend their operation.</p>

<p>Appeal from the Circuit Court of Stephenson county ; the Hon. William Bbown, Judge, presiding.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.</p>

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

<p>1. Corporation—injunction. A court of equity may grant relief against a municipal corporation as well as against a natural person, in most cases. But there are acts which a corporation may do within the limits of its charter, without being subject to the supervision of any court; such acts are those doné under its legislative and discretionary powers.</p> <p>2. A municipal corporation, in reference to its property, stands on the same footing as other corporations. Its corporate property is held in trust for the benefit of its constituents, and it is bound to administer such proper t)' faithfully, honestly and justly, and if guilty of a breach of trust by disposing of valuable property without any, or for a nominal, consideration, it will be regarded in the light of the representative of a private individual or private corporation. The fact that the forms of legislation are used in committing such a breach of trust, will not change the character of the act. Such is not the exercise of political power, delegated for public .purposes, and exemption from judicial interference terminates where legislative action ends.</p> <p>3. Cobpobation—its powebs. The common council has no authority to purchase'lands, erect buildings, and issue bonds pledging the corporate property and the faith of the corporation, for any but municipal purposes. Where the design in purchasing the land, erecting the buildings and issuing the bonds, is for private, to the exclusion" of-corporate purposes, and for private gain, it is a gross breach of trust, a fraud upon the law and the tax payers of the municipality, and a court of equity will take cognizance of such a case.</p> <p>4. Bonds op the cobpobation—sale of—void. The sale of its bonds by a municipal corporation to the members of its council, is void, irrespective of the principles of equity as applied to persons acting in a fiduciary capacity, and independent of the fact that it was a part of a scheme to pervert the property of the corporation from its legitimate municipal purposes to private ends. Such a sale is void, on the ground that no man can contract with himself. If a board of trustees were to convey the corporate property to themselves, the sale would be void, without reference to its fairness or its benefit to the corporation. So, if such a sale is made to one of their members, he being one of the parties contracting with himself.</p> <p>5. Nor does it change the transaction, where a portion of the trustees were also trustees of an academy, and to whom the sale was made, and where the sale was for the purpose of fraudulently perverting the corporate property of the municipality to the purposes of a mere private enterprise.</p> <p>6. The bonds issued by the corporation to its own members, being void in their hands, they could not be enforced for either principal or interest, and nothing could be due thereon in their hands; and it follows that the levy of a tax for their payment would be illegal, unjust and oppressive to the tax payers.</p> <p>7. Jubisdiction in equity—/or all purposes in the suit. It is a rule of equity practice, that when the court acquires jurisdiction for one purpose, it will retain it for all purposes necessary to complete justice between all parties interested in the subject matter. Hence the. rule that all persons in interest must be parties in equity.</p> <p>8. Multifariousness. No rule or abstract proposition as to what constitutes multifariousness, can be stated. But, as a general rule, the joining in one bill distinct and independent matters, will constitute multifariousness.</p> <p>9. It is not multifariousness to make the Collector of taxes a party to have their collection enjoined, and to state in the same bill the grounds and circumstances upon which the relief is sought. Nor is it ground of demurrer to allege, in the same bill, that- the common council had passed an ordinance to issue bonds of the municipality for $8000, for the purpose of building a boarding house for the use of an academy, which would be a charge on the tax payers, to do which, would be in furtherance of a fraudulent scheme to pervert the corporate property to private uses, and is germane to the other facts stated in a bill to restrain the collection of taxes imposed by the common council.</p> <p>10. Purchase—rescission. Where a municipal corporation has power to purchase land for corporate purposes, and a purchase is made, and in doing so the common council designed to pervert it to private purposes, that affords no ground for cancelling the deed, as the parties could not be placed in statu quo. The vendor could not be compelled to pay for the buildings and other improvements placed thereon, and it would be inequitable for him to get them without paying therefor.</p>

John G. Rogeks, Judge, presiding. This was an action of ejectment, brought by Thomas A. Jackson, Jonathan Jackson, Oliver Jackson and Mary Jackson Griener, in the circuit court of Cook county, against George P. Spink, for the recovery of a tract of land in Cook county.

<p>Appeal from the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding.</p>

<p>Weit of Eeeoe to the County Court of Knox county; the Hon. Dennis Clabk, Judge, presiding.</p>

<p>1. Letter op credit—extent of liability thereon. A bank gave a letter of credit to a person, guaranteeing the payment of drafts Avhich might be draivn by the latter on a firm named in the letter, to the amount of $14,-000, the letter providing that endorsements might be made thereon The person to whom the letter Avas given, made a draft for $6000, which Avas endorsed on the letter. He then drew for $3000, Avhich was also endorsed ou the letter. This draft was fonvarded for collection to the bank giving the guaranty, which was advised by letter that it was drawn under the letter of guaranty. The holder of the letter then made a draft for $4000, which was not endorsed on the letter, nor, in sending the bill for collection to the same party as before, was any reference made to the letter of guaranty; but the draft .was paid by the drawees. He then drew for §6000, the draft purporting on its face to be drawn against the letter of credit, which was returned to the bank which gave it, with this draft, for collection. This last draft was protested. All the drafts except the first -were drawn in favor of the same party. In a suit by the latter upon the guaranty, to recover the amount of the draft for §6000, which was protested, it was held, the defendant was not liable, because, on the payment of the previous drafts, amounting to $12,000, it was exonerated from liability on its guaranty, except to the extent of §2000, the residue of the amount guaranteed.</p> <p>2. However different the rule might have been had the last draft been sold to a person who had no knowledge of the prior draft for §4000, which was not endorsed on the letter of credit, and who should purchase on the faith of that letter, yet, in the case of the plaintiff, who had knowledge thereof, the omission of such endorsement could not avail to charge the guarantor beyond the amount specified in its letter of credit.</p> <p>3. Recovery under the common counts. In such case the plaintiff could not recover, on the common counts, even to the extent of §2000, the residue of the amount named in the letter of credit. The defendant’s liability arose only from the guaranty, and that should have been declared upon specially.</p>

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

Charles H. Wood, Judge, presiding. This was an action of assumpsit, in which the declaration, among other alleged causes of action, contained a count for work and labor. The basis for this count was certain services performed by the plaintiff in the family of the defendant while she was making her home at his house.

<p>1. Roads—action of county court—not subject to review. In counties not under township organization, the county courts have the discretionary power to locate and establish public roads. They are made the judges of the public necessity of such roads, and this discretion, when once exercised, is not subject to review by the circuit court. The statute gives no appeal from such cases except upon a final order directing the road to be opened after the damages have been assessed.</p> <p>2. In such a case, the county court has power to vacate the order establishing the road at any time before it is directed to be opened. If, on the damages being assessed, the court believes them to be too high, or that the condition of the county would not justify the- expenditure of so large a sum of money, they may reverse and set aside the former proceedings, and refuse to order the road opened.</p> <p>3. Appeal—hearing in the circuit court. On the coming in of the report of the commissioners, of the assessment of damages and its confirmation, and the final order for the opening of the road, the statute gives the part)' the right to appeal to the circuit court, where, on the hearing in that court, the regularity of the proceedings in the county court may be questioned, as well as the assessment of damages. If such proceedings are irregular they will be reversed, and the county court will proceed de novo; but if correct, then the question to be tried on the appeal is, as to the damages.</p> <p>4. Same—evidence. Where a party appeals from the final order approving the report of damages sustained by properly owners, the party may introduce any legitimate evidence to show the extent of such damages. But where an appeal is prayed and perfected in such a case, before the damages are assessed and the road ordered to be opened, the appeal is premature, and the circuit court has no jurisdiction, original or appellate, in such a case", to hear evidence and assess damages.</p> <p>o. Appeal—prematurely taken—effect of judgment. Where an appeal in such a case is thus taken, when none is given or allowed, and the circuit court proceeds to try the case, and judgment is rendered against the party appealing, for costs, the judgment would constitute no bar to his rights in the premises, and such judgment may be regarded as, in effect, but a dismissal of the appeal.</p>

Writ op Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

Edwin S. Leland, Judge, presiding. This was a suit in equity, brought by Mary Ellen White, Matthew White, Henry C. Monroe and Charles Monroe, in the circuit court of LaSalle county, against Joseph O. Glover and a number of other persons, for the purpose of reviewing, reversing and setting aside a decree of that court rendered at the June term, 1866, on a bill filed by the complainant in this case, so far as it authorized the conveyance of eighty acres of land to Adeline Head…

<p>1. Mobtgages—sale of a part of mortgaged premises by administrator of mortgagor—such part only secondarily liable. Where the administrator of a deceased mortgagor obtains an order of the probate court for the sale of a portion of the mortgaged premises, to pay debts other than that secured by the mortgage, which have been allowed against the estate, the residue of the mortgaged premises remaining to the heirs of the mortgagor must he first resorted to for the satisfaction of the mortgage, that portion held by the purchaser at the administrator’s sale being only secondarily liable.</p> <p>2. In that regard, the purchaser at the administrator’s sale, and the heirs of the mortgagor, hold the same relation to each other that would have existed between the mortgagor liimsclf and his grantee, in case the former had sold and conveyed a part of the mortgaged premises in bis life time, and their respective rights are governed by the case of Iglehart v. Crane & Wesson, 42 Ill. 261.</p> <p>3. And where the interest of a portion of the heirs had been sold under execution against them, prior to the sale by the administrator, the purchaser at the execution sale would stand in no better position than the heirs themselves whose interests had thus been sold.</p> <p>4. Same—of applying the residue of the proceeds of the administrator's sale in Satisfaction of the mortgage. There remained in the hands of the administrator of the mortgagor a surplus fund, arising principally from the sale of the portion of the mortgaged premises. This could not, however, be applied to relieve the land purchased at the administrator’s sale from its ultimate liability to the mortgage, the debt secured thereby never having been allowed against the estate, and the time having passed when it eould be so allowed. The general property of the estate being thus discharged from the payment of the mortgage debt, it could only be enforced against the mortgaged premises.</p>

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

<p>1. Subscription to stock of a railroad company by a county—application of bonds issued therefor. Where the bonds of a county, issued upon a subscription of the county to the stock of a railroad company, were delivered to the bankers of the company, upon the stipulation between the county authorities and the company, that they were to be applied in payment for work done upon the road within the county and not elsewhere, it was held, the sense of the stipulation, in view of its purpose, was, not that those identical bonds should pay for work done in that county, but it was, if work was done in the county, the bonds should be delivered to the company.</p> <p>2. Same—by whom the condition may be performed. Nor is it essentia], in such case, in order to create the obligation of the county to deliver the bonds, that the work should be done by the company to the stock of which the subscription was originally made, and with which the stipulation was entered into, but if the work was doue by the successors of that company, endowed with all the rights, privileges and franchises of the latter, that would be a substantial performance of the condition upon which the bonds were to be delivered.</p> <p>3. Same—rights of creditors of the original company, apd of'their assignee, in respect to such bonds. And where the original company had incurred a debt on account of work done upon the road, and in payment thereof gave to their creditor an order upon the custodian of the bonds for a sufficient amount of them to satisfy the same, which order was sold and assigned to a third person, but, by reason of there having been no work done upon the road within the county, there was no obligation to deliver any bonds upon such order, it was held, that if work was subsequently done within the county by the successors of such original company, so as to comply with the condition upon which the bonds were to be delivered, then the order issued by the original company would operate as an equitable transfer to the holder thereof, of so much of the county subscription, represented by the bonds, as was embraced in the order.</p> <p>4. Chancery—remedy of such assignee—and herein, of a creditor's bill. In such case, where the custodian of the bonds, under the direction of the county authorities, refused to deliver the bonds called for by the order of the railroad company, the holder of the order has his remedy in chancery to compel their delivery to him, without first proceeding at law against the company as for a debt due from them to him as the assignee of their order. A bill filed for such purpose would not be regarded as a creditor’s bill, nor in the nature of one.</p> <p>5. Same—where a fund is under the control of a court. Moreover, where the bonds sought to be reached have been, by the action of a court o‘f chancery, placed in the hands and custody of a trustee, there to remain until the further order of the court, a third person, not a party to the suit in which the order was made so placing the custody of the bonds, but entitled to them, can only reach them by original bill.</p> <p>6. Parties in chancery. In a suit by such holder of the order given for the bonds by the original railroad compaiw, to compel the delivery of them by the custodian, such original company, having ceased to exist and all its rights and franchises vested in its successor, is not a necessary party to the bill.</p> <p>7. Former adjudication—whether a bar. Where a suit was instituted for the purpose of settling conflicting claims for the county bonds, to which the holder of the order of the railroad company was a party, and it was determined therein that he was not entitled to the bonds under the order because at that time the condition upon which the bonds were to be delivered to the company—the doing of work on the road within the county— had not been performed, it was held, the adjudication in that suit, adverse to the holder of the company’s order, was not a bar to a subsequent suit by him to enforce his claim of the same character, on the basis that after that adjudication the company did do work upon the road within the county, and thereby performed the condition upon which the bonds were deliverable.</p> <p>8. Chancery—wasting of a trust fund. Whore a trust fund in the custody of the court is about to be wasted and misappropriated, it is the duty of the court to prevent it.</p>

<p>1. Plea in abatement—waiver. A plea in bar filed in a cause, will operate as a waiver of a plea in abatement previously filed.</p> <p>2. Plea unanswered—trial without an issue. Where a case stands merely upon a plea of confession and avoidance, which constitutes a good bar to the action, a verdict and judgment in favor of the plaintiff, resulting from a trial while such plea remains unanswered, will be erroneous, there being no issue to be tried.</p>

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

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

This was a suit in equity, instituted by Sarah Alwood, appellant, against Henry Mansfield and others, appellees, in the Mason circuit court, from which it was transferred to the Sangamon circuit court, where it was tried upon the pleadings arid proofs, and the bill dismissed.

This was an action of ejectment, brought in the court below by James A. Harpham and Lewis W. Loss, against Thomas Little, to recover lot number 10 in block number 40, in the town of Havana, Mason county. The final trial resulting in favor of the defendant, the plaintiffs appealed. The opinion of the court contains a sufficient statement of the case for an understanding of the questions decided.

<p>. 1. Married women—of remedies against them upon contracts in respect to their separate property—whether at law or in equity. So far as relates to the engagements of a married woman, not within the capacity to contract given, by implication, by the act of 1861, the remedy, when a proper case exists, must be sought under the rules in relation to the general contracts of married women and their binding effect upon their separate estates, in equity, as under the old forms of settlement before the statute, because, in that case, the implication of capacity to bind her separate estate arises only in equity.</p> <p>2. But the implication of capacity to contract in respect to her separate property arising under the statute, is an implication of law, and being an implication of law, and not of equity, the capacity to contract within the scope of the implication is a legal capacity, and all contracts under it are legal contracts, cognizable by courts of law.</p> <p>3. So it is held, that an action at law will lie against a married woman to recover for work and labor done and performed at her request, in and about the improvement and cultivation of her farm, and in taking care of her stock thereon, such farm and stock being her sole and separate-property, owned and held by her under the provisions of the act of 1861.</p> <p>4 Former decision. So far as the case of Mitchell v. Carpenter, 50 Ill. 470, holds that the remedy against married women in respect to their contracts relating to their separate estates under the statute, is not at law, but only in equity, a question not involved in that case, it is to be regarded as mere obiter dicta.</p>

<p>1. Bond for the payment of money—extent of recovery thereon. In an action on a penal bond, conditioned for the payment of the penal sum at a specified time, the introduction of the bond in evidence will establish a prima facie case for the plaintiff' for the full amount, as debt, and if interest after maturity is recoverable, that should be allowed as damages.</p> <p>2. Judgment—its effect. If, however, the judgment in such a case provides that the debt be discharged upon payment of a less sum found as damages, then the payment of the damages will operate as a satisfaction of the whole bond.</p>

<p>1. Limitations—new promise. One partner executed a note in the name of the firm, after dissolution, and without the knowledge of the other partner, for a prior account due from the firm, and the note thus given was assigned by the payee to a third person, who was a mere volunteer, and without any assignment of the original indebtedness. In a suit by such assignee, against the representatives of the partner who did not concur in the making of the note, to compel its payment, it was held, that if the original debt became barred by the statute of limitations, as it would in five years, no new promise would revive and malic it available in the hands of the plaintiff.</p> <p>3. Same—effect of the note as against the partner who was not bound by it. In such case, the original indebtedness being barred, the giving of a note therefor, in the name of the firm, by one of the partners alone, would not operate as a renewal or continuation of the debt as against the other partner, who was not bound by the note.</p> <p>8. Allegations and proofs—of the theory upon which a bill is framed. Every fact essential to the plaintiff's title to maintain a bill and obtain the relief sought, must be stated in the bill, otherwise the defect will be fatal; for no facts are properly in issue unless charged in the bill, and of course no proof can be generally offered of facts not in the bill, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, for the court pronounces its decree secundum allegata et probata.</p> <p>4. So, where one of two partners executed a promissory note in the name of the firm, after the partnership was dissolved, for a pre-existing debt of the firm, but which had become barred by limitation,-the other partner having no knowledge of the giving of the note at the time, upon bill filed by a subsequent holder, against the widow and heirs of the partner who did not participate in the making of the note, to subject real estate held by them to its payment, it was alleged that the note was made by the two members of the firm as partners, under the name and style of their firm. It was held, that under such an allegation it was not competent to prove that, although the deceased partner was not a partner at the time the note was given, yet he had subsequently ratified the act as shown by his admissions. To have rendered such admissions competent evidence, the hill should have disclosed the fact that they would he relied upon.</p> <p>5. Same—as to the binding effect of a judgment. And where the note in such case had been allowed by the county court, in a proceeding to which the administrator of the deceased partner was alone a party defendant., and the judgment thus obtained was treated in the bill as only prima facie evidence, it was held the complainant could not, upon the hearing, insist that it was conclusive upon the widow because she derived title to the land in controversy from the intestate, but must abide by the case made in his bill.</p> <p>6. Evidence—conversations. Witnesses should state facts, and not mere inferences or conclusions; and where a witness is testifying in respect to the alleged admissions of another, if he is unable to give the words, language, or the substance of it, he should not testify at all; the witness can not be permitted to give a mere conclusion of his own, when the conversation or declarations from which the conclusion is drawn, have passed from his mind.</p> <p>7. Heies—conclusiveness of judgment against an administrator. Where a claim is allowed against an estate in a proceeding in which the administrator is alone a party defendant, while the judgment is conclusive as between the creditor and the administrator, it is not as to the heirs.</p>

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