Volume 62 — Illinois Reports

Charles H. Wood, Judge, presiding. This was a bill in chancery, in which the complainant, Joseph Gerson, alleged that, on the first day of April, 1868, one Petér I. Neilson, being indebted to Nelson Anderson, on. a promissory note for $350, with his wife executed a mortgage to said Anderson to secure such indebtedness, conveying lot nine, in block fifteen, in the town of Dwight, county of Livingston, in the State of Illinois, and that on the first of July, 1868, said Neilson…

<p>Appeal and Writ of Error from the Circuit Court of Jo Daviess County; the Hon. Benj. R. Sheldon, Judge, presiding.</p>

<p>1. Deed—delivery.—A husband having enlisted in the United States army in February, 1862, executed to his wife, for the expressed consideration of one dollar, a deed of his real estate, for the purpose of enabling her to dispose of it for the benefit of herself and family in case he should not return from the service. He caused the same to be recorded. The wife never saw the deed until after his death, which took place in October, 1862. She found it in his papers, which he had left in her possession. She knew he had said he was going to make the deed. After his death the wife received the rents of the property, offered it for sale, and finally sold the same : Held, that the facts showed a delivery by the husband, and that the wife’s assent to the transaction was clearly evidenced by her receipt of the rents and offering to sell the property.</p> <p>2. Same—delivery and acceptance.—To render a deed operative there must be a delivery and acceptance. No particular form or ceremony is necessary to constitute either, but there must be satisfactory evidence that the grantee has either actually accepted the deed, or has sought to become the beneficiary under it. It is well settled that a deed may operate by a presumed assent until a dissent appears.</p> <p>3. Deed—husband to wife—validity.—A husband having enlisted in the army during the late civil war, by deed conveyed his whole real estate to his wife for the expressed consideration of one dollar, to enable the latter to dispose of the same for the benefit of herself and family in case of his death. After his death the wife sold and conveyed the same for its full value, and the proceeds were applied toward the support of herself and family. The heirs of the husband after their majority executed their conveyance for the same premises, and their grantee brought ejectment against the party holding under the deed from the wife: Held, on hill filed to enjoin the suit at law, that the husband’s deed to his wife was void at law, but would he upheld in a court of equity.</p>

Writ of Error to the Circuit Court of McHenry County; the Hon. Theodore D. Murphy, Judge, presiding. Defendants in error when sued by Laohner for the injury, before any trial was had, settled and compromised with him, and paid him $300 and paid the costs of suit, amounting to $43.05.

<p>1. Easement—what is. The disposition and arrangement of the several parts of an entire building consisting of several parts, for various uses, for ease and convenience, and with reference to ways, light, and mutual supports, made by the owner in fee during unity of seizin, which are apparent and continuous, and necessary to the reasonable enjoyment of the several parts of the building, will be easements upon severance of title as to the different parts of the building, on the principle that every grant of a thing naturally and necessarily imports a grant of it as it actually exists, in the absence of any thing showing a contrary intention.</p> <p>2. Same—when and how passed. Such easements, when continuous and apparent during the unity of seizin, upon severance, will pass to the several holders of the premises, unless the contrary is provided for ; and each portion of the several premises will pass subject to all the burdens and advantages imposed or conferred by the former owner. The grantees will each take their' respective portions as they existed in the hands of the former owner; and the same rule applies to a severance by judicial proceedings for assignment of dower.</p> <p>3. Conveyance—what passes by. Incorporeal hereditaments appendant or appurtenant to land, will pass by a conveyance of the land as an incident thereto. Thus, if a house or store be conveyed, every thing passes which belongs to, and is in use for it, as an incident or appurtenant, without the use of the word “ appurtenances,” by mere operation of law.</p> <p>4. Assignment of Dower—what passes by. When premises are assigned to a widow for dower, the assignment, like a deed, without mention of appurtenances, will pass all those things which are incidents appendant or appurtenant thereto; and, in the absence of any restrictions in the proceedings, it will be presumed that they were taken into consideration by the commissioners and regarded as a charge upon the other portion in favor of that allotted.</p> <p>5. Easements—injury to—injunction. When the owner had so constructed and arranged a large building of three stories, consisting of many apartments, rooms, and offices, devoted to different uses, that certain stairways furnished the only access to the upper stories, and the stairways and halls were lighted by a skylight in the roof, and the same was so continuously used until after his death, when one end of the building, including one-half of the stairways, was assigned to his widow as her dower, and the other portion, including all the sky light, passed to devisees under his will, and the devisees proposed to tear down their part of the building, and erect another in its stead four stories high; not because of dilapidation, but because it was not of fine enough quality, the effect of which was practically to destroy access to the second story of the widow’s portion, destroy all access to the third story, and the lights, and render the rest of the building unsafe by the removal of the necessary supports to the wall, and untenantable, thereby causing great injury and damage : Held, that a decree on bill by the widow against the devisees, restraining them from their proposed action, under the circumstances of the case, was proper.</p> <p>6. Equity Jurisdiction.—Where the owners of a part of an entire building propose to tear down their part thereof to the destruction or great injury of the rights of the owner for life of the remaining part of the building, consisting in certain easements established during the unity of seizin, it was held, that a court of equity had jurisdiction to entertain a bill to restrain the injurious act.</p>

The Decatur and State Line Railway Company was incorporated under a special charter granted by the Legislature of the State of Illinois on the 24th day of March, A. D. 1869, By the terms of this charter the company was authorized to condemn lands for right of way “in the manner provided by the general laws of this State.” On the 30th day of September, A. D. 1871, the relator applied to the Hon. Josiah' McRoberts, presiding judge of the Circuit Court of Will County, for the…

<p>1. Trespass for criminal conversation—what participation ly the husband in the guilt of the wife will bar the action. In an action of trespass for criminal conversation by the defendant with the wife of the plaintiff, an instruction which directed the jury that, even if they believed, from the evidence, that the wife of the plaintiff was ever so profligate, that would be no bar to his recovery, unless they further believed, from the evidence, that she was permitted to live as a prostitute, with the knowledge and consent of her husband, was regarded as erroneous, in that it required the participation of the husband in the misconduct of the wife to too great an extent in order to make it constitute a defense to the action, the connivance of the husband being enough to bar the action.</p> <p>2. Instructions—should be framed in view of the evidence. And in view of the evidence tending to show the connivance of the plaintiff, it was held that to an instruction directing the jury that, in case they found the defendant guilty of the charges laid in the declaration, they were authorized to find for the plaintiff, should have been added the qualification, if there was not connivance on the part of the plaintiff.</p> <p>3. Intendment—against a party failing to testify for himself. No intendment should be made against a party because he does not testify for himself.</p>

Edwin S. Leland, Judge, presiding. These several suits were brought by appellants in the Circuit Court of LaSalle County. The summons in each of the cases bore teste Oct. 1, 1870, and were returnable the first day of the next November term, held on the first Monday in November, 1870, or Nov. 7. Service was had on the 28th and 29 th days of October. The remaining facts bearing upon the questions decided appear in the opinion.

<p>Appeal from the Circuit Court of McHenry County; the Hon. Theodore D. Murphy, Judge, presiding.</p> <p>The opinion of the Court contains a sufficient statement of the case.</p>

<p>Writ of Error to the Circuit Court of Woodford County; the Hon. S. L. Richmond, Judge, presiding.</p>

<p>1. Bailment—hiring—burden of proof. In an action by the owner of a team of horses to recover damages for an injury to them against the hirer for want of proper care, the defendant asked the court to instruct the jury, that if the team hired was in good condition when taken by defendant, and was not returned in such condition, and if the defendant had shown prima facie that he took ordinary care of the team, then the plaintiff must show, by a preponderance of testimony, that defendant misused the team so as to cause the injury complained of, which the court refused: Held,, that the refusal was proper.</p> <p>2. Where goods, when placed in the hands of a bailee, are in good condition, and they are returned in a damaged state, or not returned at all, in an action by the bailor against the bailee, the law will presume negligence on the part of the latter, and impose upon him the burden of showing that he exercised such care as was required by the bailment.</p>

<p>1. Promissory Note—demand not necessary. Where a promissory note is made payable at a specified time and place, it is not necessary for the payee to make a demand of payment at the time and place specified in order to maintain an action upon the note, or a bill to foreclose a mortgage executed to secure the payment of the note.</p> <p>2. Same—readiness to pay. But if in such case the maker of the note is at the place of payment at the time designated, and is ready and offers to pay the money, but can not because the note is not there ready to be surrendered, such readiness and offer on the part of the maker will discharge him from liability to pay interest accruing after the maturity of the note.</p> <p>3. State or War—effect of accruing interest. So where a note executed in the year 1857 was made payable at a specified time and place in the city of Chicago, and at the time the note became due the payee resided in the then rebellious States of the Union, and had the note there in his possession, it was held, that the fact of the existence of a state of war would not relieve the makers who resided within the Union lines from the payment of interest on the note accruing after its maturity and during the existence of hostilities, as no legal obstacle was in the way of their being at the time of payment at the place designated, the same being within the Union lines, and offering to pay the note, thus relieving themselves from liability to pay such interest. Such readiness and offer to pay would have been no breach of duty toward their government. Nor did the fact of the existence of hostilities between the United States Government and the confederate de facto government relieve such of the makers of the note as resided within the confederate lines from liability to pay such interest, as no legal obstacle was in the way of their paying the note there to the payee, the latter also residing there and having the note in his possession.</p>

Writ of error to the Circuit Court of Peoria County. This was a soire faeias issued on the following recognizance: “ State of Illinois, 1 “Peoria County, j s* “This day personally appeared before the undersigned, Sebastian Kraus, one of the justices of the peace in and for said county of Peoria, Samuel Ogden and John Wienmar, and jointly and severally acknowledged themselves to owe and be indebted unto the people of the State of Illinois, in the sum of five hundred dollars…

<p>Appeal from the Circuit Court of Cook County; the Hon, John G. Rogers, Judge, presiding.</p>

This was an attachment suit brought by William C. Warren, against Orrin Forsyth, Willard Abbott, and Joseph F. Forsyth.

Arthur A. Smith, Judge, presiding. This was an action of ejectment brought by T. Judson Hale against Levy Gladfelder and others, in the Knox Circuit Court to recover the S. E. 14. 12 H. 4 E. The facts not stated in the opinion are to be found reported in 52 111. 93.

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

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

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

<p>1. Sheliy’s CASE—rule in applies in Illinois. The common law of England, so far as applicable and of a general nature having been adopted in this State at an early date and continued in force by statute, except so far as the same has been repealed, it follows that the rule in Shelly’s case, which is a part of the common law, is in force in this State, it being in harmony with the genius of our institutions, and not in conflict with any statutory provision.</p> <p>2. Same—what is the rule in. At common law the rule in Shelly’s case is not a rule of interpretation, but a rule of property, under and by which all devises of legal estates wherein lands are given to a person for life, or for any greater estate, with an immediate remainder to the “heirs" or “heirs of the body,” of such devisee, the word heirs, or heirs of the body, will operate as words of limitation, and give the devisee an estate in fee simple or in fee tail.</p> <p>3. Same—requisites of the rule. The requisites of the rule in Shelly’s case are, that there must, in the first instance, be an estate of freehold devised; there must be a limitation to the heirs, or heirs of the body of the person taking that estate, by that name, and not to the heirs as meaning or explained to be sons, children, etc.; the heirs must be named to take as a class or denomination of persons in succession from generation to generation, and by way of remainder, or at least, so that the estate to arise from the limitation to the heirs, and the estate of freehold in the ancestor, shall both owe tliei r effect to the same deed, will, or writing; and that the several limitations shall give interests of the same quality, both legal or both equitable.</p> <p>4. Same—limitation. The rule does not apply when the words lawful issue, sons, or children, are used, instead of the word “ heirs,” because those words are regarded as words of purchase, and not of limitation; and the ancestor, when such words are used, will take only a life estate, and his sons and children will take by purchase, or under the will, for the reason that they are a designation of persons to take originally in their own right. "When taking in character of heir, he must take in quality of heir, that is by descent.</p> <p>5. Will—devise—rule in Shelly’s case applied. A testator, by the terms of his will, devised to his daughter one-third of all his property left after the payment of debts, with the following limitation: “and it is my desire that my daughter, Mary Sophia, shall receive so much of her share of the rents and profits as shall be necessary for her education, until she is twenty-three years of age, after which she may come into possession of the full amount of rents and profits, the principal to descend to her heirs: ” Held, that the rule in Shelly’s case was applicable to such devise, and by it the daughter took an estate of inheritance in fee simple in one-third of the lands of the testator left after the payment of debts.</p> <p>6. Same—rule not affected by a power of sale. And the fact that a mere naked power was given to the executors to sell certain town lots upon a certain contingency, where no trust was created, was held not to affect the application of the rule.</p> <p>7. Continuance. Where a complainant made a substantial amendment to her bill, the defendant moved for a continuance on that ground, which the court overruled: Held, on appeal, when it appeared that the cause was afterward continued by the expiration of the term, that the error did no injury, and furnished no ground of reversal.</p> <p>8. Pabties in chancery—wife of mortgagor on foreclosure. On bill to foreclose a mortgage executed by a husband alone to secure the payment of purchase money, his wife is neither a necessary nor proper party defendant.</p> <p>9. Foreclosure—decree for possession. A decree for the foreclosure of a mortgage, among other things, provided that if the premises, in case of sale, were not redeemed in fifteen months, the master in chancery execute a deed to the holder of the certificate of purchase, and requiring the delivery of possession to the grantee in such deed : Held, no error.</p> <p>10. Same—interest. When a personal decree is rendered against a mortgagor for the balance of the debt remaining after the sale of the mortgaged premises, with interest, if the proceeds of sale shall not extinguish the interest accrued on the original debt, the court should see that interest is not allowed on interest.</p>

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

<p>Appeal from the Circuit Court of Cook County; the Hou. John G. Rogers, Judge, presiding.</p>

• Writ of Error to the Circuit Court of Kankakee County; the Hon. Charles H. Wood, Judge, presiding. This was an action of assumpsit brought by Jefferson Mun-son, who sued for the use of Christopher C. Robinson, against Roswell C. Nichols, upon a promissory note executed by Nichols, March 23, 1868, payble one year after the date thereof, to H. Burbank, or bearer, and assigned to Munson, June 30, 1868.

<p>1. Slander—Malice. The law implies malice from the publication of actionable words, but this implication may be explained and rebutted by the circumstances.</p> <p>2. Same. In a suit for slander it is error to instruct the jury that if the defendant used words imputing a crime, they must find for plaintiff, when the words were spoken under circumstances tending to show a want of malice. In such case the intent of the publication should be left to the jury under the proof.</p> <p>3. Same—Malice. When words. imputing the commission of a crime are used by the defendant merely for the purpose of translating the language of another from the German into the English language at the request and for the information of an attorney at law in a matter of business, the law will not infer malice in the defendant. Under such circumstances the use of the words may properly come within the range of privileged communications. If there was malice in fact it must be left to the jury to be found from the evidence.</p>

<p>1. Special assessments—application for judgment hy one unauthorized. Since the adoption of the new constitution the collector of the city of Chicago is not authorized to apply for judgment to enforce the collection of •special assessments by the city.</p> <p>2. Same—notice of application—certificate of publication. When the certificate of the publication of notice of an application for judgment upon special assessments fails to state the date of the last paper containing the same, it is fatally defective.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. John G. Eogers, Judge, presiding.</p>

<p>1. Special assessment—lands not adjoining improvement. Under the act of 1854, providing the mode of collecting assessments of cities and towns for certain purposes, the corporate authorities of towns have the power to assess real estate for benefits it may derive by ditching and tiling a street, although it may not adjoin the ditch.</p> <p>2. Same—uniformity in assessments. On application for judgment against certain land for the sum assessed for benefits from improving a ditch near the same, the owner objected that other land through which the ditch passed was not assessed, and offered to prove that such land was benefited by the ditch : Held,, that proof that such other land was benefited by the original ditch was irrelevant, the assessments being made only for leveling and improving the same. „</p> <p>3. Same—notice of application for judgment. In this case it was also objected that the collector’s notice of the application for judgment was deficient, in not stating that an order of sale would be asked. There was, however, personal notice to the land owner of the application for judgment, and he appeared and filed objections. This was held sufficient to give the court jurisdiction.</p> <p>4. Same—proof of notice by commissioners. The act of 1854, relating to assessments by cities and towns, authorizes the town or city council to fix by ordinance ot resolution the time and kind of notice of assessments ; and when a town ordinance prescribed the form and kind of notice, and required the commissioners to attach to the assessment roll an affidavit of the giving of such notice, it is not error to receive such affidavit in evidence to prove the posting of notices of the meetings of the commissioners.</p> <p>5. Same—evidence—collector’s return. On application for judgment by a city for special assessments, the court received in evidence the collector’s delinquent list: Held, no error, as the delinquent list is nothing more than tfie officer’s return, which he makes under his official oath, and is conclusive evidence of the facts which he is required to state in it.</p> <p>6. Same—proof as to payment. It is also competent to prove by the city clerk that such assessments have not been paid since the return to him of the collector’s warrant, but it seems not necessary, as the fact of payment should be shown affirmatively by the land owner.</p> <p>7. Evidence—practice—opening ease. It is purely a matter of discretion with the court trying a case whether it will admit new or further evidence after the testimony has been closed and the argument commenced.</p> <p>8. Bile of exceptions—presumption as to evidence. When the bill of exceptions does not purport to contain all the evidence, it will be presumed that there was other evidence heard sufficient to justify the action of the court below.</p> <p>9. When the bill of" exceptions did not purport to set forth all the evidence, the party in vacation procured the certificate of the judge who tried the case, without notice to the adverse party, that no other evidence was heard: Held, that such certificate was no part of the record, and could not he considered by this court.</p> <p>10. Bile of exceptions—amending. The party taking a bill of exceptions on discovering that it is imperfect in not stating that it contains all the evidence, should, on proper notice, apply in open court to have it amended, and then the amended record can he filed in this court.</p>

<p>Appeal from the Circuit Court of Whiteside County; the Hon. William W. Heaton, Judge, presiding.</p>

<p>Babceny—constable converting proceeds of sale. A constable, having an execution placed in his hands, levied upon and took possession of certain goods belonging to the judgment debtor and put them in possession of the judgment creditor. A short time afterward the constable took the goods away, with the consent of the judgment creditor, and sold them at private sale, receiving therefor the sum of $55, which he converted to his own use. In a prosecution against the constable, under an indictment charging him with having stolen divers United States notes and current bank bills for the payment of $55, and of that value, of divers issues and denominations, to the grand jury unknown, the personal goods and property of Matthias Eck, who was the judgment creditor, it was held the prosecution could not be maintained—not under Section VI of the Criminal Code, declaring the felonious conversion of money, goods, etc., by a bailee to be larceny, because in no sense could the constable be regarded as the bailee of the judgment creditor; the general property in the goods after the levy, until a sale according to law, being in the judgment debtor, and the money derived from a sale is not the property of the plaintiff in the execution until paid over to him, but until that time is in the custody of the law. Besides, the goods were not sold according to law, but at private sale—the officer, by such abuse of his authority, becoming a trespasser ab initio, and the judgment creditor could not, by ratifying such trespass, obtain a legal right to the fruits of the wrongful act of the officer.</p>

<p>1. Evidence—burden of proof. When the plaintiff declares generally for work and labor done, and materials furnished, and the defendant files the general issue with notice that he will insist on the trial that the work was performed under a written contract, the burden of proof is not thrown upon the plaintiff to show an abandonment of the special contract, until the defendant has proved the averment in his notice.</p> <p>2. New tbiad—;finding of jury. When the testimony in respect to a material fact, is contradictory, and can not be reconciled, as the jury have the advantage of judging from the manner, appearance, and interest of the witnesses, this court will not disturb their finding.</p>

<p>Appeal from, the Circuit Court of La Salle County; the Hon. Edwin S. Leland, Judge, presiding.</p>

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

<p>1. Homestead—lost hi/ abandonment. In 1859 a husband and wife executed a deed of trust upon premises which had been occupied by them as a homestead, the title to Avhich was in the wife, there being no release of the homestead right. Two years prior thereto they remoA'ed from the premises and were continuously absent until 18G2, a period of five years, one year of Avhich they resided out of the county. The husband Avhen he left had contracted to open a farm upon Avhich he Avas to reside three years. During the absence the home premises Avere rented to different persons. They Avere sold under the trust deed in March, 1861: Held, that the homestead right was lost by abandonment, and that the lien attached while such abandonment was complete, and could not be defeated by returning and residing on the premises.</p> <p>2. When a party left his homestead some tAvo years before he incumbered the same, and changed his residence, accompanied by his family, Avith a vieAV of opening a farm and bettering his condition, it seems that the creditor could not be charged with information that the premises were claimed as a homestead, except by the actual residence of the party. The occupancy, of a tenant will afford no notice of the right.</p>

<p>Appeal from the Circuit Court of Bureau County; the Hon. E. S. Leland, Judge, presiding.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

Silvanus Wilcox, Judge, presiding. This was an action on the case brought by appellee in the Superior Court of Cook County against the Chicago City Eailway Company, and Michael Moran, the conductor. The testimony was voluminous, but the conclusions of fact therefrom are stated in the opinion.

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

<p>Mechanics’ lien—by sub-contractor. In a suit by a sub-contractor against the owner of a building to recover for labor performed on defendant’s house, which he did under the contractor, it appeared that the contractor had abandoned the work and that defendant had fully paid him all he was entitled to before receiving any notice of the plaintiff’s claim: Held, that the plaintiff was not entitled to recover.</p>

Charles Turner, Judge, presiding. Thomas J. Pickett was the owner of the land in controversy, which was sold in two parcels by the sheriff on execution against Pickett. The land was occupied by Matthew Moore, as the tenant of Pickett. The time for redeeming from this sale through judgment creditors expired Feb. 21, 1863.

<p>1. Contract—services under special contract—recovery without full performance. In an action to recover for work and labor done, and materials furnished, in the erection of a church, it appeared there was a special contract to complete the building by a certain day at a certain price, payable in installments, and that the plaintiff did not complete the same, defendants claiming that he had abandoned the work. The court instructed the jury for the plaintiff, that if they believed “from the evidence, that defendants committed the first breach of the contract by ignoring their obligations under it, and on account of such breach by the defendants the plaintiff is entitled to recover for the full amount of the work done by him at the time the defendants took possession of the building, to be estimated according to the original contract price, if the jury find from the evidence that such work has not been all paid for: ” Held, that the instruction was obscure and calculated to mislead. The breach of defendants relied on to justify an abandonment should have been stated and left to the jury to be found from the evidence.</p> <p>2. Same—reeocei'y on partial performance. In an action Seeking to recover for services on partial performance of a special contract on the ground of cause for not fully performing, where there was proof of payment, it is error to instruct the jury that if there was cause for abandoning the work before completion, the plaintiff is entitled to recover for the full amount of the work done according to the contract price, provided the work had not all been paid for. It should have authorized the recovery of the unpaid balance only.</p>

<p>Appeal from the Circuit Court of Lee County; the Hon. William W. Heaton, Judge, presiding.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

Richard G. Moktomy, Judge, presiding. This was a bill to foreclose two mortgages given to secure two promissory notes. Neither the notes nor mortgages provided for payment in gold, but they were in the ordinary form. They were made before the passage of the legal tender act.

Arthur A. Smith, Judge, presiding. This was a bill in chancery by appellants in behalf of themselves and sixty-one other persons named, and. all others interested, to enjoin the collection of a tax levied to pay interest on bonds issued by the township authorities, which bonds were claimed to be illegal. The bill was filed in the circuit court of Peoria County and taken to Knox County on change of venue.

Charles H. Wood, Judge, presiding. This was an action on the case by the appellant against the appellees, to recover for damages sustained in the loss of cattle by infection from Texas cattle brought by appellees into this State. Defendants pleaded the general issue. There was a trial, and verdict for appellees.

Charles H. Wood, Judge, presiding. This was debt upon a replevin bond brought in the name of appellee, as sheriff, for the use of William F. Ward. The bond was given in a replevin suit by Dunning, appellant, against Ward, to recover certain crops. The replevin suit was dismissed by the plaintiff. Defendant in that action brought suit on the bond in the sheriff’s name.

<p>1. Chaecery practice—hearing. It is error to proceed to the hearing of a cause in equity and render a final decree therein at the same term of court at which replication is filed to the answer.* </p> <p>2. Same. When one of the defendants to a bill in chancery, being interested in the land sought to be affected by the bill, had answered, and the court proceeded to hear the cause and render final decree at the same term at which replication was filed, both as to the defendant who had answered and another defendant who had acquired an interest in the land from his co-defendant, there being no evidence of acquiescence, it was held error. The case as to the defendant who had not answered should not have been finally disposed of before the hearing as to his co-defendant.</p>

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

<p>1. Partnership—as to third parties. Where a person holds himself out as a partner to a party giving credit to the supposed firm, and by his conduct or declarations induces such person to give credit in the honest belief that he is a partner, he will be held liable as a partner.</p>

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

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

<p>1. Witness—competency. On the trial of a claim against the administrator of an estate, the husband of an heir-at-law of the deceased, as well as the wife, is a competent witness when called by the administrator to prove conversations and transactions between the claimant and the intestate which are relevant to the issue.</p> <p>2. When a witness, in behalf of the representatives of a deceased party, is allowed to testify to conversations and transactions between the deceased and one prosecuting a claim against the estate, the claimant also will he allowed to testify in respect to the same conversations or transactions.</p>

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

<p>1. Evidence—agent’s statements. The statements of an agent made at the time of hiring a party to labor for his principal in reference to his employment, is not hearsay, but pertinent and legitimate evidence against the principal in a suit against him by the laborer to recover wages.</p> <p>2. Same—order of proofs. Under our practice a party has the right to introduce his evidence in the order he may prefer, provided he will connect it, and thus render it material to the issue. Thus, he may first show the acts and statements of one claiming to be an agent, to bind the principal, if he will follow it with proof of the agency, and show that the agent’s acts were within the scope of his authority.</p> <p>3. Instruction—in relation to single facts. The practice of selecting an isolated portion of the evidence and basing an instruction on it, should not be encouraged. But this court will not reverse for that reason alone, unless it can see that it probably misled the jury.</p> <p>4. Agency—proof of agent’s authority. Where the plaintiff was employed to labor for the defendant by one claiming to act as defendant’s agent, the fact that defendant, when called on for pay, was informed by the plaintiff that the agent claimed to be such, and failed to deny the agency, or the agent’s authority to employ plaintiff, is competent evidence in a suit by the plaintiff against the defendant.</p>

<p>Appeal from the Court of Common Pleas of the city of Aurora; the Hon. Richard G. Montony, Judge, presiding.</p>

<p>1-. Sanity—presumption. Every man is presumed to be of sane mind until the contrary is shown; but if derangement or imbecility be proved or admitted at any particular period, it is presumed to continue until disproved, unless the derangement was accidental—caused by the violence of disease.</p> <p>2. Same—distinction. There is a distinction in the inferences to be drawn from proof of an habitual or apparently confirmed insanity, and that which may be only temporary. In the first case, proof is required to show a restoration; while in the other, the party alleging insanity must bring his proof of a continued derangement to that point of time which bears directly upon the subject in controversy.</p> <p>3. It is no more a presumption of law that a person rendered unconscious and incapable of mental action by a stroke of paralysis, will continue so for four months thereafter, than that he would if the same effect was produced by a wound on the head. Such a result may follow in either case, but the law will not so presume.</p> <p>4. Testamentary capacity—burden of proof. On a bill in chancery to contest a will after its admission to probate, the burden of proof is on those seeking to maintain the will, to show that at the time of its execution the testator was of sound mind and memory, to the extent of understanding what he was about.</p> <p>5. Will—undue influence. On the trial of an issue, whether an instrument purporting to be a will, was the will of the testator, the court, in substance, charged the jury that it should appear, from all the evidence, that it was not the result of undue influence exerted by others over a weak and enfeebled intellect, to the extent of substituting their will for his: Held, that the instruction was calculated to confuse and mislead the jury. It requires the fact to appear from all the evidence, without regard to the preponderance of proof on the point. -</p> <p>6. Testamentary capacity—rule or test of. From the fact that a man might not be competent to make a will of one kind, and under some circumstances, owing to the nature and extent of the estate, the number of objects and the character of the disposition, when under other and different circumstances requiring less mental effort, he might be, the court appreciates the difficulty in attempting to lay down any definite rule in respect to the exact amount of mental capacity requisite to the making of a valid will.</p> <p>7. Same. The best form in which to submit the question to a jury, is, wdiether the mind and memory of the testator was sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the will, judging his competency of mind by the nature of the act to be done, from a consideration of all the circumstances of the case.</p> <p>8. To be of sound and disposing mind and memory, a person should be capable of making his will with an understanding of the nature of the business in which he is engaged; a recollection of the property he means to dispose of; of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should comprehend the provisions of his will in their legal form. It is sufficient if he understands the elements of which it is composed—the disposition of his property in its simple forms.</p> <p>9. Upon the question of testamentary capacity, the court charged the jury that they must be satisfied, upon the evidence, that the testator “ had sufficient strength of mind and memory to take into account and retain in his mind, without dictation from others, the nature and objects of his bounty, the nature and character of his property, and the manner in which he was disposing of it; the person who was the natural object of his bounty, and her claims upon him; the relation which he sustained toward them, who, by the will, were made the recipients of his bounty; and his mind should be sufficient to enable him to have a comprehension that he was disposing of his property by will, and to know how it was being disposed of by said will.” Held that the charge was erroneous.</p> <p>10. The court further instructed, “ that in order to have sufficient capacity to make a valid will, the testator must have something more than mere passive memory; he must retain sufficient active memory to collect in his mind, without prompting, the particulars or elements of business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their more obvious relations to each other, and be able to form some rational judgment in regard to them: ” Held, objectionable, as requiring a capacity not possessed by a great portion of mankind, even without the impairing effect of disease.</p> <p>11. ItTSTBUCTlOSTS should not only be correct in their propositions of law, but should be expressed in clear and concise language, without the use of words meaningless, or tending unnecessarily to embarrass the opposite party.</p>

Josiah McBoberts, Judge, presiding. This was an action of ejectment brought by Hardin, appellee, to recover certain land in Will County. The appellee read in evidence the register’s certificate, showing that, in May, 1836, one William B. Egan purchased of the United States the whole section of which the land in dispute formed a part; also a patent from the United States to Egan, dated October 1, 1839.

<p>Appeal from the Circuit Court of Peoria County; the Hon. S. D. Puterbaugh, Judge, presiding.</p> <p>The verdict of the jury was for §1,700, and plaintiff remitted §700.</p>

<p>1. Attobney—equitable lien—equity jurisdiction. Where a bill in chancery showed that complainant made a contract with the defendants, who were non-residents, by which he undertook the collection of a debt secured on a tract of land, incurring all necessary expenses and costs, and assuming all risks, and for which, if successful, he was to receive one-fifth of the proceeds, whether land or money; that a suit in chancery was commenced by him and prosecuted to final decree, a sale of the land made, and certificate of purchase issued to one of defendants, and that they had refused to recognize the rights of complainant, with prayer for a decree foi one-fifth of the land, if not redeemed, otherwise for one-fifth of the pro ceeds: JEZeM, on demurrer, that the complainant was entitled to the relief sought, being entitled to an equitable lien on the land under the contract.</p>

Arthur A. Smith, Judge, presiding. This was a suit brought by appellees against appellants, to recover damages for the non-performance of a contract for the sale and delivery of forty-five fat hogs. It appeared that appellees had offered seven cents per pound for the hogs, but that appellants asked more. One of appellees said, that the last Chicago Times he had seen, quoted hogs of that quality on the decline.

IIenby Booth, Judge, presiding. The facts are substantially stated in the opinion.

Writ op Error to the County Court of La Salle County ; the Hon. P. K. Leland, Judge, presiding. This was a hill in chancery by Jonas Eckert against Leroy D. Dewey, Eugene L. Dewey, and Sibbil J. Dewey.

<p>1. Boats and vessels—statutory lien—release. The lien given on boats and vessels for supplies, etc., is not created by the levy of an attachment writ, but by statute, and the levy is but a means furnished to enforce the lien. Therefore, where a tug boat was discharged from attachment by order of the court „ on the execution of a bond by the owners as allowed by the statute, and the attachment suit under which the levy was made, was dismissed by the plaintiff, it was held, that the statutory lien was not thereby released, and a pleaiin a second suit by attachment, of the discharge of the vessel by the giving of bond in the prior suit, was adjudged bad on demurrer.</p> <p>2. Conflict of laws—jurisdiction, of State and Federal courts. The jurisdiction of the United States District Courts on the lakes and navigable waters connecting the same, is governed by the act of Congress of February 3,1845, and is not exclusive, but is concurrent with such remedies as may be given by State laws.</p> <p>3. A maritime lien does not arise on a contract for materials and supplies furnished to a vessel in her home port; and in respect to such contracts, it is competent for the State legislatures to create such liens as they may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations for their enforcement.</p> <p>4. The proceedings by attachment given by the statutes of this State against boats and vessels to enforce liens for supplies, etc., have no resemblance to libels in the courts of admiralty, but are of the same character as ordinary suits by attachment, requiring notice to be given of the pendency of the suit, and by them no prior liens are interfered with. They are not proceedings in admiralty such as the district courts of the United States are invested with exclusive jurisdiction over by law.</p> <p>5. JubisdjctioTS—objection, to not made in court below. On appeal from the judgment of the Superior Court of Chicago rendered in a suit by attachment against a vessel for supplies furnished, it was objected that the proceedings failed to show that the court had jurisdiction, and that the affidavit did not show that the supplies were furnished at the home port of the vessel, and that she was a domestic vessel: Held,, that as the objection was one that might have been obviated by amendment, if made in the court below, it came too late when urged for the first time in this court.</p> <p>6. Same—;presumption. In the absence of a bill of exceptions preserving the evidence, this court will presume that every fact necessary to bring the case within the jurisdiction of the court and establish a cause of action was proved on the trial.</p>

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

<p>Writ OF Error to the Circuit Court of Iroquois County; the Hon. Charles E. Starr, Judge, presiding.</p>

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

<p>1. Assessment of damages—right of way. In a proceeding to condemn a strip of land for a right of way by a railroad company through a party’s farm, consisting of several tracts, both parties, on the trial, treated the farm as a single tract in their examination of witnesses and instructions, and the jury fixed the compensation and the owner’s damages as upon one tract. Upon appeal, the company, for the first time, objected that the finding should have applied to each tract separately: Held, that the objection could not be urged for the first time in the appellate court. The question could not even be raised on motion for a new trial.</p> <p>2. Error—objections waived, by silence. It is a rule of general application in courts of law that if a party acquiesces in the mode of conducting a cause by his adversary, by failing to object and except in apt time, then whether the objection pertain to the introduction of evidence, the measure of damages, or instructions to the jury, he will be precluded from raising it in the appellate court.</p>

Arthur A. Smith, Judge, presiding. This was a bill in chancery filed by Mosher, the appellee, against appellant, Earl G. Barton, assignee of Daniel 27. Barton. The assignment was made for the benefit of creditors. The assignee sold certain personal property to one Cook, for which he gave his note of $500 with the appellee as security. The assignee recovered judgment on this note against appellee for $666.05, there being no service on Cook. Daniel 27.

<p>1. New trial—finding as to facts. Unless a verdict is manifestly against the evidence, and is to be attributed to the passion or prejudice of the jury, or to a misapprehension of the facts, the judgment thereon should not be disturbed.</p> <p>2. Negligence—liability for death caused by. It is the duty of a street railway company to carry their passengers with safety; and if the death of a passenger results from the carelessness of its servants in the management of its car, or from a defective track, or from an overloaded car, or from all combined, the company will be liable.</p> <p>3. Evidence—weight of. When the testimony of the witnesses is con-dieting as to any material fact, the weight to be given to one witness more than to another should be left to the jury.</p>

Henby Booth, Judge, presiding. This was a bill in chancery to remove a cloud occasioned by a tax title acquired by the appellant on a sale for taxes in August, 1865. The objection to the tax deed, among other things, was, that the purchaser did not notify the person in whose name the land was taxed, and the person in possession, three months before the expiration of the time of redemption, of the time when the redemption would expire.

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

<p>Appeal from the Circuit Court of Grundy County.</p> <p>This was a bill in chancery by Gifford, setting forth that Charles F. Washburn, being the owner of eighty acres of' land in Grundy County, and indebted to C. W. & E. E. ICnoblocks in about the sum of $900, conveyed the land to them as a security, taking back a bond for a reconveyance on payment of the debt; that being indebted to Turpin H. Arnold in the sum of $500, by an arrangement between Washburn, Arnold, and the ICnoblocks, Arnold paid the debt to ICnoblocks, and they conveyed the land to Mary J. Arnold, wife of Turpin H. Arnold, in security for the indebtedness, and that Mary J. gave Washburn a bond for a deed to be made when the sum due her husband was paid; that Turpin H. Arnold afterward induced Washburn to deliver up to him the bond to save his property from sacrifice at the hands of creditors, agreeing to hold the same in trust for Washburn, etc.</p> <p>The answer denied the surrender of the bond for deed to be held in trust, and claimed a bona fide purchase.</p> <p>The Circuit Court decreed a redemption, from which an appeal was taken.</p>

<p>This was a petition for a mandamus, setting forth that the relators, on Aug. 16, 1871, recovered judgment before the defendant, a justice of the peace, against Joseph Becker for $111.92 and costs of suit, and alleging that such justice refused to issue an execution on the judgment, on the pretense that their was no law authorizing justices to render judgment in a suit for more than one hundred dollars, and praying for a mandamus to compel the defendant to issue execution on the judgment.</p>

<p>1. New tbial—finding as to facts. When there is no evidence at all as to any essential element of a cause of action or defense, or the verdict is manifestly against the weight of evidence, this court will interfere and set the verdict aside and grant a new trial.</p>

<p>1. Mortgage—priority of payment of series of notes—lost by re-issm. Where the mortgagor paid to the payees of a series of promissory notes given by the firm of which he was a member, those which had matured, with money which his brother had assisted him to raise by the loan of certain other notes under an agreement with the brother, unknown to the payees, that the brother was to have the notes when taken up assigned to him as a security for the notes he had parted with, and the payees, at the request of the mortgagor, indorsed in blank the notes so paid them without any knowledge that they were to be re-issued by the mortgagor, and they were transferred to the brother as agreed: Held, on bill by the payees to foreclose the mortgage as to the remaining notes of the series, .falling due in one and two years after those which had been taken up and re-issued, that the latter were not entitled to priority, but were postponed.</p> <p>2. Same—notes re-issued after payment. Where one of the makers of a series of notes maturing in one, two, and three years, secured by his mortgage, paid the first of the series after due, taking a blank indorsement of them, and then transferred them to a brother, who furnished .the means with which they were paid, the payees not knowing that their indorsement was procured for such purpose: Held, that the brother, as the holder of such notes, was entitled to the benefit of the mortgage security as against the mortgagor, but as to the holders of the remaining notes his rights were postponed.</p> <p>3. Payment—indorsing note on payment. Where the makers of a series of notes procured from a third party the means with which to pay the notes then due, under an agreement that the same, when paid, should be transferred to such third party, and the payees on payment, at the request of the makers, indorsed such notes in blank and surrendered them to the makers, by whom they were delivered to the third party, the payees not knowing that they were to be re-issued: Held, that so far as the payees were concerned, this was not a transfer of the notes, but simply a payment.</p> <p>4. In such a case the transaction could not be treated as a purchase by the makers for the third party, except on satisfactory proof that the fullest explanation was made to the holders of the notes, and that they understood it to be a sale to some third party.</p>

<p>Appeal from the County Court of La Salle County; the Hon. Charles H. Gilman, Judge, presiding.</p> <p>The substance of the facts appear in the opinion of the Court.</p>

<p>In this case no question of law is decided. There was a conflict of evidence as to the fact of a sale, and the court gives its reasons for holding with the jury.</p>

<p>1. Chancery practice—referring to master. On bill for taking an account between partners where the accounts are complex and intricate, the matter should always be referred to a master, to be examined and reported, in order to a final decree; and where the parties, by stipulation to save expense, seek to impose the labor of the master upon the court, this court will not examine intricate and complicated accounts on appeal, but will affirm the decree of the court below.</p> <p>2. If the complainant in this class of cases should procure an ex parte order for a hearing without a reference, this court would reverse the decree below for want of a reference to the master.</p>

<p>1. Constitutional law—general rule. The question of the repugnancy of a law to the constitution is one of great delicacy ; and the judiciary, in justice to the rights of a co-ordinate department of the State government, ought not, and will not, declare a law to be void, except, upon the most deliberate and mature consideration, its repugnance to the constitution is clearly manifest to the understanding.</p> <p>2. Same. The judicial department being created under the constitution to construe and administer the law, has nothing to do with the policy or expediency of an act of the legislature. The mere fact that an act may be mischievous in its effects, burdensome upon the people, in conflict with our conceptions of natural right, abstract justice, or pure morality, or of doubtful propriety, will not justify the courts in holding it to be beyond the scope of legislative authority.</p> <p>3. Taxation—corporate authorities. Town officers, under the township system, making an appropriation to a railroad company, in pursuance of law, upon the vote of a majority of the legal voters of the town authorizing the same, are “ corporate authorities ” of a municipal corporation, who are authorized to levy taxes under the constitution of 1848.</p> <p>4. Taxation—corporate purpose. A tax or appropriation for a corporate purpose is one for the benefit of the inhabitants of the municipality. Taxes levied by township authorities to aid in the construction of a railroad is a corporate purpose ; and, in this respect, the distinction between a donation in aid of a railroad and a subscription to the capital stock of the corporation, is more shadowy than real. The power is granted in consideration of the public benefits, and these are as great in one case as in the other.</p> <p>5. Same—railroads whether private or public. If it were true that railroad corporations are strictly private, that the benefits resulting to the public from the construction of railroads are purely incidental, and that the profits arising from their operation merely enrich the individuals composing the private corporation, it might logically follow that all laws imposing taxes to aid in the building of railroads to be owned and operated by such corporations are unconstitutional, because appropriating taxes to a private and not a public purpose.</p> <p>6. Taxation—-fora railroad is apublie purpose. This court has decided that railroad corporations are created for the public good ; to increase the facilities and conveniencies and promote the great ends of commerce; and that they can not organize monopolies, or make contracts injurious to the public interests. The courts for many years past have recognized railroads as public improvements, made to subserve the public interests. When it is also considered that the legislature and the courts have uniformly held that they are of such public use as to justify the exercise of the right of eminent domain, the position is thereby' much strengthened that taxation for such an enterprise is for a public purpose, although the distinction between the right of eminent domain and taxation is manifest.</p> <p>7. Same. In view of the past history of railroads; the impossibility of dispensing with them ; the necessity for an increase in their number, to open more outlets for the products of our fertile and inexhaustible soil— facts all well known to the legislature—this court must hold that, even if the appropriation of taxes in this case tvas not for a public purpose in the broadest sense, the character of the purpose is involved in such doubt that it can not declare the action of the legislature void.</p> <p>8. Constitutional law—legislative power. In the enactment of laws the legislature must exercise its judgment and discretion. As to questions of pure policy and expediency, no express or necessarily implied constitutional provision intervening, it is the sole judge; and if there be grave doubt as to the nature of the purpose, that doubt must be solved in favor of the action of the legislature.</p>

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

<p>1 Board of public works of Chicago—awarding contract on buildings. By the charter of the city of Chicago the board of public works was made a distinct branch of the city government, having charge and superintendence of all the public improvements of the city, and all contracts were required to be awarded by said board “ to the lowest reliable and responsible bidder or bidders.” The board advertised for sealed proposals for the construction of a new “ lake tunnel ” of the estimated cost of §400,000, reserving the right to reject any bid for certain causes. The contract was awarded to Steel & McMahon, who were not the lowest bidders. The complainants, whose bid was about $4,000 less, filed their bill in equity to restrain the board and Steel & McMahon from entering into the performance of the contract, and to compel the board to award the contract to complainants, also claiming that, as tax payers, they were entitled to demand the letting of the work to the lowest bidder. The court below dismissed the bill: Held, that the decree was right; and that, so far as the bill sought to have the contract awarded to complainants, it was in the nature of a mandamus, and would not lie, as the board was invested with a discretion which, in the absence of fraud, the courts would not seek to control; that the complainants had no clear legal right to the relief sought; and that the claim of injury as a tax payer was equally inadmissible as a ground for maintaining the bill.</p>

Joseph E. Gary, Judge, presiding. This was an application by the collector of the city of Chicago for judgment upon a special assessment warrant, the assessment being for extending or opening West Oak Street from Larrabee to Crosby Street, and the ordinance describing the land condemned as “ Lot 8 and the north 10 feet of lot 9 in block 93 of Elston’s addition to Chicago, in accordance with the plan hereto annexed.” It appeared that the north line of lot -9 did not run due…

<p>1. Special assessments—necessity of aproper objection, to admit evidence. In an application for a judgment upon a special assessment in the city of Chicago, the objector offered to prove that no notice had been given of the application for confirmation of the assessment, as required by the city charter: Held, as no such objection had been filed, the evidence was properly excluded.</p> <p>2. Same—discretion as to filing objection at the hearing. And upon objection that the court below erred in refusing to allow such objection to be filed on the hearing, it was held, that that was a matter resting in the discretion of the court, and as there was no affidavit upon which the application to file it was based, this court could not say that the discretion had been abused.</p>

<p>1. Special assessments in the city of Chicago—by whom to be determined— validity of an ordinance in that regard. Under the law on the subject of special assessments in the city of Chicago, for public improvements, the responsibility of prescribing what improvements shall be made, and the mode, manner, and extent of them is upon the common council. An ordinance which undertakes to vest in the board of public works the discretion of determining either, the mode, manner, or extent of an improvement is void.</p>

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

Appeals from the Superior Court of Cook County. These cases arise upon the application of the city collector of Chicago for judgments upon a special assessment warrant. The court below granted orders for the sale of the real estate against which the assessment was made, for its payment. The objectors bring the record to this court.

This was an action of replevin commenced by Sullivan at the February term, 1869, of the court below, to recover five barrels of whisky, forty-two gallons to the barrel, of the value of f500. The declaration contained two counts. The first count alleged that the defendants took the property in question, and the second, that they detained the same.

<p>Appeals from the Superior Court of Cook County.</p>

<p>1. Elisor. Where the office of sheriff of a county was vacant, and the duties of the office was being performed by the coroner, who was a party defendant to a bill in chancery filed: Held, that the facts justified the clerk of the court in the appointment of an elisor to serve the summons. The statute does not require an elisor to be sworn.</p> <p>2. Service—return construed. An officer’s return of service of a summons in chancery issued against A and B was “served by delivering a copy of the within writ to A and B, this 15th day of September, 1870: ” Held, that it showed a service on each defendant by copy.</p> <p>3. Parties in chancery. Where a bill in equity to set aside a tax deed showed that the purchaser at the sale had parted with all his interest to one of the defendants, it was held that an objection that such purchaser was not made a party defendant, was not well taken.</p>

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

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

<p>1. Special assessment—notice of, necessary. On an application for judgment in favor of the city of Chicago, by the city collector, against lands to enforce collection of a special assessment made for the purpose of widening a street, no competent .p'rouf of The. notice hf malying the assessment appeared in the proceedings put in evidence, nor was there any extrinsic proof of such fact: Held, that the want of such proof was fatal to the judgment on appeal, and that the city collector,' under the constitution of 1870, had no authority to apply for judgment.</p>

Writ of Error to the Circuit Court of Woodford County; the Hon. S. L. Richmond, Judge, presiding. This was,a proceeding by attachment for contempt of court, against J. William Clark, James P. Darst, and others, in refusing to obey an injunction writ ordered by William G. Randall, master in chancery of Woodford County, Illinois, prohibiting Jefferson A. Davis, supervisor of the town of Olio, in Woodford County, Daniel It.

<p>Writ op Error to the Circuit Court of Coles County •, the Hon. James Steele, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Shelby County; the Hon. Arthur J. Gallagher, Judge, presiding.</p>

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

Thomas F. Tipton, Judge, presiding. The court gave the following instructions at the request of the appellee: 1. The jury are instructed by the court, on behalf of the plaintiff, that the defendant is liable for the misconduct, wrongful acts, negligence, or default of all or any of its officers, agents, servants, or employees, when proved, acting in the line of its business or employment. 2.

Charles Turner, Judge, presiding. This was a proceeding to condemn lands, brought by appellant in Peoria County, and removed, by change of venue, to Mason County. The jury returned the following verdict: “We, the jury, find that the value of the plaintiff’s land, taken by the defendant, is three thousand dollars.

<p>Writ of Error to the Circuit Court of Hancock County; the Hon. Joseph Sibley, Judge, presiding.</p>

<p>1. Estoppel. Where a party made a conveyance of a tract of land to B, and received the purchase money, and afterward brought suit by attachment against A, a former grantee of the plaintiff, whose deed was unrecorded, to recover a sum due from him, and attached the same land, and B interpleaded, claiming title : Held, that on the trial of the issue on the inter-pleader the plaintiff was estopped from defeating the title of B, even by showing that the latter had notice at the time of his purchase of the prior unrecorded deed.</p> <p>2. Judgment—-upon whom binding. Where land was attached and a grantee of the plaintiff filed an interpleader claiming title as against the attaching creditor, which the latter attempted to defeat by showing a prior deed from himself to the defendant in attachment and notice thereof to the party interpleading, and the defendant in attachment was in court only by constructive service: Held,, that a judgment in favor of the party interpleading was not binding as between the two grantees in any future contest between them in respect to the title. c</p>

<p>Appeal from the Circuit Court of Madison County.</p>

<p>1. Deed—delivery—presumption. When a deed is produced by the grantee named therein, the presumption of law, in the absence of proof to the contrary, is that the deed was signed and sealed according to its purport, and that the grantee, having it in his possession, received it from the grantor.</p> <p>2. The requisites of a deed to convey land are, signing, sealing, and delivery, and when the deed is recorded by the grantee, even after the death of the grantor, the burden is on the grantor, or those claiming as his heirs, to prove clearly that the appearances are not consistent with the truth. The presumption of delivery must he destroyed by clear and positive proof.</p> <p>3. Deed—delivery upon voluntary settlement. The law makes stronger presumptions in favor of the delivery of deeds in cases of voluntary settlements, especially when made to infants, than in ordinary cases of bargain and sale.</p> <p>4. Deed—delivery. Where it appeared that a father had made advancements to his adult children and afterward signed, sealed, and acknowledged a deed for certain lands to his minor son, stating that he intended to make a provision for such son, hut expected to live on the land until his death, and afterward spoke of the land as his son’s, and the son exercised acts of ownership over it and leased portions of it before his father’s death, and about sixteen months after the death of the father had the deed to himself recorded : Held, even if the father retained possession of the deed until his death that fact would not invalidate or defeat it.</p> <p>5. A delivery of a deed is not to be proved by the grantee in it, but will be presumed; and if not delivered the retention of the deed by the grantor until his death will no.t destroy its effect as a deed when the circumstances or proof show it to he a voluntary settlement for a meritorious consideration upon an infant by a parent.</p>

<p>1. Trespass to the person—preservation of order in party’s family. The authority to govern is placed by the law in the hands of the father, as the head of the family. It is as unlawful for a grown son or daughter to create a disturbance in the family as for a mere stranger; and the father may as rightfully interpose-to preserve the good order and propriety of his household in the one case as in the other.</p> <p>2. Same. Where a grown daughter, who had been married and had left her husband and was living in her father’s family, got into an angry dispute with a hired girl, and when ordered by her father to leave and go to her own room, refused to do so, and in her dispute with her father, made remarks ■imputing a want of chastity in her step-mother in her presence, and in that of several others, it was held that the father had a right to protect his wife from such slanderous abuse the same as from a mere stranger, and to exercise his authority as the head of the family in moderation to preserve the order of his family, and if in so doing he used no more force than was necessary, he was not liable in trespass.</p> <p>3. New trial—finding against the weight of evidence. Where the testimony of the plaintiff in an action of trespass for personal injury is wholly unsupported as to the material facts, and is contradicted by the testimony of the defendant and several other disinterested witnesses as to such material facts, and no reason appears for rejecting or discrediting the testi mony of the defendant and his witnesses, and the verdict of the jury can be supported on no other ground: Held, on appeal, that the verdict was against the weight of the evidence.</p> <p>4. Same. It is the duty of a jury to find according to the weight of the evidence, and not capriciously on the testimony of a single witness who is a party to the suit, in opposition to the evidence of numerous other unimpeached and intelligent witnesses, who appear to have stated the details of the facts honestly as they saw and heard them.</p> <p>5. Same. It is an unwarranted assumption of power in a jury to reject the evidence of a great number of disinterested and unimpeached witnesses and found their verdict alone on that of an interested witness who is a party to the suit. Their verdict should be a just and fair conclusion from the whole evidence.</p> <p>6. Same. In all that class of cases sounding merely in damages, where the recital of the facts touch the sympathies or arouse the prejudices to such an extent as to obscure the understanding of the jury and prevent them from exercising their better judgment, it is the plain duty of courts to supervise their verdict and see that it is the conclusion of that deliberate judgment that ought to characterize all judicial proceedings, and not the result of passion or prejudice.</p>

Thomas F. Tiptoe, Judge, presiding. This was an action of replevin, by appellant against appellee. Appellant claimed the right of possession and property in twelve head of cattle under a chattel mortgage given him by George Cornelius, dated November 21, 1870.

<p>Appeal from the Circuit Court of Madison County; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>The opinion sufficiently states the case.</p>

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

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

Thomas F. Tiptoe, Judge, presiding. The facts of the case are substantially stated in the opinion of the court. The court, on behalf of the defendant below, instructed the jury: 1. The court instructs the jury for defendant, that the plaintiff must prove his case by a preponderance of testimony; and unless the plaintiff has proved, by a preponderance of testimony, that defendant signed the note in evidence, they will find for defendant. 2.

<p>1. Action—before expiration of conditional credit. When the plaintiff performs work for a defendant under a contract to give a certain time for the payment of the price, upon condition that defendant will give his note bearing a certain rate of interest on the completion of the work, which he refuses to do, the price will become due upon the completion of the work, and suit may be brought before the expiration of the proposed credit.</p> <p>2. Pleading— where plaintiff must declare specially. Where goods are to be paid for by bill of exchange, or promissory note, and the defendant has refused to give it, if the suit is brought before the expiration of the credit, the plaintiff should declare specially.</p> <p>3. But where work is done under an agreement to extend the time of payment to a given time, upon condition that a note shall be given bearing interest, upon the completion of the work, a failure to give the note will authorize the bringing of suit at any time thereafter, and in such case the plaintiff need not declare specially.</p> <p>4. Instruction. Where there is any evidence bearing upon a question it is not error to give an instruction based upon the fact sought to be established by such evidence. The weight of the evidence is a question for the jury.</p> <p>5. Evidence—credit by mistake in account. Where the plaintiff, in the copy of his account filed with his declaration, by mistake had given defendant a credit of one hundred dollars, and defendant knew some time before the trial that the credit was claimed to have been made by mistake: Held, no error to allow the plaintiff on the trial to explain the credit</p>

John A. McClernand, Judge, presiding. The petition for the highway was posted October 21st; November 20th following, the commissioners met and made the following order: “ We, the commissioners of highways of Springfield, have this day agreed to grant the prayer of the within petition upon a certain route, of which we have agreed upon, and order a survey of the same as soon as practical.

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

Charles Turner, Judge, presiding. In April, 1855, Wm. H. Coggeshall, as principal, and James M. Ruggles, as surety, executed a note to Howard & O’Neal,, administrators of the estate of one Marshall, deceased. In June, 1857, Ruggles becoming doubtful of the solvency of Coggeshall, purchased of him a pair of horses and a buggy for four hundred and twenty-five dollars, and agreed to pay three hundred dollars of the amount on the note.

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

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

<p>1. Replevin—plea of property in defendant. In replevin, the plea of property in defendant is mere inducement to the formal traverse of the right of property in the plaintiff. It is not even traversable.</p> <p>2. Issue presented, by plea of properly in defendant. Under such a plea, the issue to be tried is not whether the property is in the defendant, but whether the right of property and the right to immediate possession is in the plaintiff. On such an issue the plaintiff must recover on the strength of his own title, and the burden of proof is on him to establish his right.</p> <p>3. Replevin—effect of verdict on title to properly. In replevin, where the defendant pleaded property in himself, and the proof showed that he owned the property jointly with the plaintiff: Held, that a verdict for defendant on such issue did not determine judicially that the property was that' of defendant exclusively, and that such finding did not affect plaintiff’s right to recover the undivided half.</p> <p>4. Same—return of property. Where the plaintiff sought to recover possession of property in an action of replevin, claiming to be the exclusive owner thereof, and the defendant pleaded property in himself, the proof showing that the property was owned in partnership by the plaintiff and defendant: Held, no error for the court to award a return of the property to defendant on a verdict finding such issue in favor of defendant. If the property was, in fact, partnership property, the possession of either was lawful.</p> <p>5. Beplevln—by one partner against Ms co-partner. It seems that where property is owned by two persons jointly as partners neither can maintain replevin against the other for the exclusive possession.</p> <p>6. New trial—finding of jury. Where the only witnesses examined upon the point in issue are the two parties to the suit, and their testimony is flatly contradictory, the court will not undertake to say which witness the jury ought to have credited.</p> <p>7. Evidence—en-or not prejudicial. Where a plaintiff has already proved a certain fact which is not disputed by the defendant, it is no error to reject other proof to the same effect.</p>

Joseph Sibley, Judge, presiding. Francis Miller made her last will and testament, first directing the payment of her funeral expenses and just debts, after which she made various specific and pecuniary bequests to various persons, and to religious associations. Among these was the following: “ 2. After the payment of my funeral expenses and all my debts, I give, devise, and bequeath unto my beloved husband, John JST.

<p>1. Taxation—who may levy. Where commissioners were appointed, by act of the legislature, to levy special taxes upon certain lands for the purpose of drainage, and the act provided that the same should be submitted to a vote of the legal voters of the district to be drained, owning or occupying lands within the same, and that, unless adopted, it should be of no force, if the act is adopted by vote, as required, such commissioners may be regarded as corporate authorities under the constitution of 1848, and might be vested with power to assess and collect taxes for corporate purposes.</p> <p>2. Same—equality and uniformity. Where special taxes are levied, not upon the valuation of the lands assessed, nor confined to the special benefits conferred by the proposed improvement for which they were authorized, it will be a violation of the principles of equality and uniformity required by the constitution, and the taxes will be illegal.</p> <p>"■3. Same. So, where, by a special act of the legislature, passed in 1859, a special tax was authorized to be levied upon certain lands for draining the same, and three commissioners were appointed to carry out the object of the act; and two other persons named in the act, with such other disinterested person as they might associate with them, were appointed to classify the lands into three classes, so that the tracts to be most benefited by the drainage should be placed in the first class, and those least benefited in the third class, and return such classification to the commissioners ; and it was made the duty of the latter to levy upon the lands described a tax sufficient to complete the drainage of the same, the first class paying the highest rate on the county assessor’s assessment, not exceeding fifty cents per acre, the second class to be such a percentage on said assessment, not, however, to exceed forty cents per acre, and the third class in the same way, the rate, however, not to exceed thirty cents per acre: Held, that taxes levied under such act were illegal, for the reason that a sufficient sum was required to be levied upon the lands to complete their drainage, not exceeding fifty, forty, and thirty cents per acre in the respective classes, without any regard to whether the lands were benefited to the extent of the tax or not.</p> <p>4. Same. A tax assessed upon the basis of dividing the lands into three classes according to the difference in benefits, fixing a maximum rate of taxation in each class, and making an arbitrary difference of ten cents pet-acre in the different classes respectively, is not a tax assessed upon each tract only to the extent of the special benefits conferred upon it.</p> <p>5. Chancery jurisdiction—cloud on title. A court of equity will entertain jurisdiction of a bill by the owner of land who is in possession, to remove a cloud upon his title consisting of an illegal tax deed obtained upon it. .</p> <p>6. Bill to remove cloud—tender. On bill to set aside a tax deed on complainant’s land, on the ground that the taxes for which the land was sold were illegally assessed for drainage purposes, and the deed was a cloud upon the title, it was objected that the bill should have offered to refund to the defendant the taxes discharged by him in his purchase: Held, that, as it appeared the taxes were illegal, and no charge upon the land, and it did not appear by the bill that any benefit had been bestowed upon the land by drainage, or otherwise, the defendant had no equitable claim to have the taxes paid by him refunded.</p>

Joseph Sibley, Judge, presiding. This was an action of covenant upon the following lease: (t This indenture, made this first day of January, A. D. 1867, between Harrison Dills, of Quincy, Illinois, of the first part, and Alex.

<p>Appeal from the Circuit Court of Adams County; the Hon. Joseph Sibley, Judge, presiding.</p> <p>This was a bill for a divorce brought by appellant, in the McDonough circuit court, and taken by change of venue to the circuit court of Adams county. Appellee filed a cross bill, also claiming a divorce on the ground of cruel treatment and adultery on the part of the complainant. The testimony is lengthy, but its substance is stated in the opinion of the court.</p> <p>The complainant asked the court to give the following instructions :</p> <p>1. The jury are instructed, that it is necessary for either party, in this case, to establish their respective allegations presented by their pleadings by a preponderance of the evidence in the case.</p> <p>2. The jury are further instructed, that the only issue presented by the pleadings in this case for your consideration is, whether or not the complainant and defendant were living together as husband and wife, in the county of McDonough, and State of Illinois, on the 3d day of February, A. D. 1868, and whether or not, on that day, the defendant wilfully, and without just or reasonable cause, deserted the complainant and his said home, and whether or not the defendant had wilfully remained absent therefrom, without just or reasonable cause, for the space of two years prior to the filing of the complainant’s bill for a divorce.</p> <p>3. The jury are further instructed, that it is wholly immaterial in this case, whether or not the complainant has-committed adultery with Margaret Sailors, or any other woman, since the filing of his bill for a divorce.</p> <p>4. The jury are also instructed, that adultery can not be presumed, but must be alleged and clearly established by a preponderance of the evidence; and unless the jury clearly believe, from the evidence in the case, that the complainant did, prior to the time of filing his bill herein, commit adultery with Margaret Sailors, or Mrs. Lockhart, or Mrs. Heal, the defendant was not justified in leaving complainant, and remaining absent for the space of two years immediately prior to the filing of his bill of complaint herein, simply because of any suspicion of adultery which defendant might entertain, as between complainant and these women, or either of them, and no more.</p> <p>5. The jury are also further instructed, that the law does not allow the jury to presume the adultery of the complainant where the facts or circumstances relied upon to establish the same may be as well attributed to an innocent intent or motive as a guilty one,</p> <p>6. The jury are instructed, that if they believe, from a preponderance of the evidence, that at the time defendant 'left complainant (if she did leave at all), complainant was at the head of a family, and living upon and carrying on a farm, and that he continued to so reside there up to the time of filing his bill herein, he had a perfect right to employ a housekeeper or housekeepers during that time, and to associate with them, or to visit his neighbors and female acquaintances.</p> <p>7. The jury are instructed, that if they believe, from the evidence in this case, that Mrs. Nancy Cooper was asked a question, upon her first examination in this case, which was broad enough to have enabled her to have related the conversation with complainant, which she relates in her second deposition as to complainant having committed adultery, and that on said first examination she neglected to testify as to said conversation, such neglect is a circumstance to be taken into consideration by the jury in determining what weight to give to her evidence.</p> <p>8. The jury are instructed, that the evidence of the witness, Mrs. Nancy Cooper, in her second deposition as to the admission of complainant to her, that his wife, meaning the defendant, had forced him to commit adultery, cuts no figure in this case, unless the jury believe, from a preponderance of the evidence, that complainant had committed adultery with Mrs. Margaret Sailors, or Mrs. Neal, or Mrs. Lockhart prior to the time of filing his bill of complaint.</p> <p>9. The jury are instructed that it is necessary for the defendant to prove, by a preponderance of the evidence, that the complainant actually committed an act, or acts of personal violence to the person of the defendant prior to the time of the alleged desertion, and that threats of violence, abusive language, or violent sallies of passion are not such violence as will justify a desertion.</p> <p>10. The jury are instructed, that such cruelty as would authorize a married woman to leave the house or home of her husband must be acts of physical violence upon her person, inflicted by him, or such demonstrations of actual violence made by him toward her as would induce a well-grounded fear in a reasonable mind that such violent injuries would be inflicted upon her by her husband, in case she remained, and that abusive language or mere assault, without battery, does not constitute such cruelty as is contemplated by law.</p> <p>12. The jury are instructed, that in determining the weight to be given to the evidence of the witnesses in this case, they are authorized to consider the relationship, if any, to the parties herein, their temper, feeling, or bias, if any is shown, their demeanor while testifying, their means of information, and to give such credit to their evidence as under all the circumstances said witnesses shall seem entitled to.</p> <p>13. If the jury believe, from a preponderance of the evidence, that the defendant deserted .the complainant at two different times before the 3d day of February, -A. D. 1868, even with a justifiable cause, and subsequently returned each time to complainant, and lived with him as his wife up to the 3d day of February, A. D. 1868, then all such former acts of violence which took place prior to the time she last returned, in the year A. D. 1863, if she did so return, were, in the law, condoned by her; and unless the jury further believe, from the preponderance of the evidence, that the defendant received such personal violence at the hands of the complainant as would justify her desertion, subsequent to said time of her return, in A. D. 1863, if she did return, and live with complainant up to February 3, A. D. 1868, inclusive, the jury should find the allegations of cruel treatment against the defendant.</p> <p>The court gave all of said instructions, except those numbered 5, 9, 10, and 13. At the request of defendant the court gave the following instructions :</p> <p>2. That if the jury believe, from the evidence, that complainant, before the separation of the parties, was guilty of extreme and repeated cruelty toward defendant for the space of two years or more, that defendant was justified in leaving him, and the jury should find the issues for the defendant.</p> <p>3. That if the conduct of complainant was such toward defendant, before the said separation, as to induce, in the mind of a reasonable woman, a well-grounded fear of her life, or of great bodily injury, if she remained and lived with said complainant, and that she was actuated solely by such fear during the two years immediately after said separation, being such as would be inspired by all the circumstances in the mind of a reasonable woman during all that time, then the jury should find that the defendant is not guilty of the wilful abandonment, -without reasonable cause, as charged in the bill of complaint.</p> <p>5. That facts tending to show that the complainant has been guilty of adultery with Mrs. Sailors, or any other woman, either prior to the separation spoken of by the witnesses, or after that time, and before the commencement of this suit, are proper for the consideration of the jury in determining the issues in this case.</p> <p>6. The only issue for the j ury to try in this cause is, whether the defendant deserted or absented herself from the complainant, without any reasonable cause, for the space of two years prior to the commencement of this suit, and what constitutes such reasonable cause of abandonment, is a matter to be determined by the jury, from all the facts and circumstances in evidence in the case.</p> <p>The jury found the defendant not guilty of wilful desertion without reasonable cause.</p> <p>The complainant entered a motion for a new trial, which was overruled.</p>

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

<p>1. CoHsxmmoitAL law—exemption from taxation. The first section of the ninth article of the charter of Shawneetown, in terms, purported to ex-em.pt the inhabitants of that city from all State taxes for the period of twenty years, and required the levy of a tax, by the city, on the property of the inhabitants, equal to the tax released by the State, to be used exclusively in constructing a levee to protect the city from overflow: Held, that so far as the section exempted the property of the inhabitants from State taxes, it was clearly in conflict with the second section of the ninth article of the constitution of 1848, and therefore void.</p> <p>2. Same. The mere fact that the city council was authorized to levy a tax equal in amount to the State tax released, for local improvements, does not change the material fact of an attempt to release the right of the State to tax the inhabitants for State purposes; and the tax for levee purposes is in no sense a State tax.</p> <p>3. Same—power of legislature to exempt. Under the constitution of 1848, the legislature had not the power to exempt a portion of the inhabitants of the State in any locality from State taxes, and impose the entire burden upon the remaining portion.</p> <p>4. Same—commutation of taxes. The case of the Illinois Central S. H. Co. v. County of McLean, 17 Ill. 291, holding that a commutation of taxes in that case was constitutional, is based upon the principle that the proportion of the earnings of the company required to be paid to the State in lieu of taxes, was equal to the burden of the taxes released. The case can be supported on no other principle.</p> <p>5. But when the State receives nothing in consideration for releasing the inhabitants of a city from State taxes, and the tax imposed in lieu thereof is purely for local purposes, in which the people of the State at large have no benefit, it can not be regarded as a commutation.</p> <p>6. Same—exemption for charitable purposes. The words “ charitable purposes,” in the third section of the ninth article of the constitution of 1848, which provides that “ the property of the State and counties, both real and personal, and such other property as the general assembly shall deem necessary for schools, religious and charitable purposes, may be exempt from taxation,” will not be construed to include the building and construction of a levee for the protection of the private property of the citizen. Under this clause, the right to collect a State tax in a locality can not be released for a series of years, and an equal tax collected to build a levee by a city in lieu thereof.</p>

<p>Appeal from the Circuit Court of Sangamon County; the Hon. John A. McClernand, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Cass County; the Hon. Charles Turner, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Coles County; the Hon. James Steele, Judge, presiding.</p>

<p>1. Libel—privileged- communication. On the trial of an action on the case for libel, the plaintiff offered in evidence a petition to the judge of the circuit court, signed by the defendant and others, charging the plaintiff with'gross neglect of his duty as State’s attorney of the circuit; with being wilfully and corruptly guilty of oppression in office, and of corrupt malfeasance in office; of taking bribes from parties accused and indicted, and in pursuance of corrupt agreements releasing them from prosecution, and containing many and various specific charges, and concluding by asking the judge to suspend the plaintiff from the discharge of the duties of his office until the grand jury could investigate the charges. The circuit court on objection refused to admit the same as evidence, on the ground that it was a privileged communication: Held, that the court erred in refusing to admit the same. It should liave been admitted, and then the question would be whether it was presented in good faith for the purpose of having a State’s attorney pro tem appointed to prepare and prosecute an indictment against the plaintiff, or prepared for a bad purpose and from malicious motives.</p>

<p>1. Variance. A declaration upon an arbitration bond, which was executed by a party to the arbitration and his security, stated that the said plaintiff and the said defendants, described in said bond and the condition thereof, entered into an agreement to arbitrate. The condition of the bond recited that the plaintiff and only one of the defendants sued had entered into the agreement: Held, that an objection to the bond on the ground of variance was properly overruled.</p> <p>2. Same. Where the words plaintiff or defendant are used in the plural or singular number, they will be regarded as being used in the number which the context shows was intended.</p> <p>8. Award—construction as to interest. Where an award found a certain sum to be due from one of the parties to the other, and directed its payment as follows: “ One thousand dollars to be paid within five days from this date, and the balance (twelve hundred and eighty-four dollars and thirty-two cents) to be paid within sixty days from this date, together with ten per cent interest per annum thereon from this date until paid : ” Held, that no interest was to be paid on the one thousand dollars, if paid within five days; and that, as the award made no provision for any rate of interest if not so paid, the rate of interest must be govered by the statute, and that no higher rate than six per cent per annum could properly be allowed.</p> <p>4. Same—interest. Where an arbitrator is empowered to make an award according to the principles of justice, and the award gives sixty days’ time for the payment of the principal sum found to be due, it will not be considered as unreasonable, if it also requires the party to pay interest on such sum from the date of the award at the rate of ten per cent per annum. The terms of such a submission are broad enough to authorize such an award.</p>

■ Appeal from the Circuit Court of Adams County; the Hon. Joseph Sibley, Judge, presiding. ■ This was an action of debt, brought by appellant against appellee, to recover on coupons of bonds issued by the Quincy & Toledo Railroad Company. The facts bearing upon the questions decided appear in the opinion of the court.

<p>1. Promissory note—ratification, of forged signatures.' One whose name has been attached to a note as surety, without authority becomes liable, if, upon inspection, he admit the signature to be his. After such admission he is estopped from denying the making of the note.</p> <p>2. Previous agency—not necessary. Nor is it necessary, to establish a ratification, that there had been any previous agency created. An act wholly unauthorized may be made valid by a subsequent ratification.</p> <p>3. Admission—when not conclusive. A person who has signed several notes of like character, and, who under a mistake admits the signature of one, especially if not shown him, is not estopped from his plea denying his signature.</p> <p>4. Usury—will vitiate judgment. A judgment founded upon a not< which upon its face reserves an usurious rate of interest should be for thJ principal alone.</p>

<p>1. Specific perfobmance—who may maintain bill for. Where the title of a vendee of land is sold under a valid decree against him, the purchaser, upon receiving a master’s deed therefor, succeeds to his position as vendee; and, upon complying with the terms of sale, may maintain a bill against the vendor for specific performance.</p> <p>2. Same—what relief decree. S sold a lot to H for seven hundred and fifty dollars, on credit, giving "a contract for a deed, which was never recorded, reserving the right to declare a forfeiture for non-payment, and making time of the essence. The vendee afterward loaned H three hundred dollars, secured by an assignment of the contract, to enable the latter to erect a building upon the lot, in the progress of which H incurred an indebtedness to F and B for materials. They, uniting with other lien holders, filed a petition to establish a lien on the premises, making the vendor and vendee defendants, alleging in the petition that H held the premises under a contract of purchase from S. The latter suffered the petition to be taken as confessed, and a decree and sale followed of the interest of H in the premises; F and B became the purchasers, and received the master’s deed. After receiving their deed, they tendered to S eight hundred and eighty-five dollars, and demanded a deed; and, upon his refusal, filed their hill for specific performance. The defendant filed no cross bill, asking for affirmative relief. The circuit court, on the hearing, refused to decree that S should execute a deed to complainants upon their payment of the amount of the purchase money found to be due, with interest, but ordered the premises to be sold, and payment out of the proceeds to be made: first, the amount of the purchase money and interest due to S; secondly, the amount of the original lien of F and B; thirdly, to S the amount of his loan to H, and interest; and, finally, to F and B the amount due the other lien holders, which they had paid at their purchase: Held, that the decree was erroneous; that no sale should have been ordered; that the complainants having succeeded to the ■ rights of the original vendee, was not entitled to such relief, and that the vendor was not entitled to any affirmative relief; that the complainants were not bound to pay S the sum loaned by him to H; that the proper decree was to require the complainants to pay the amount due upon the contract of sale, with interest, in specie, the contract providing for its payment in gold or its equivalent, within thirty days .after entering the decree, and that the master in chancery pay the same over to S upon his executing a proper deed.</p> <p>3. Same. A vendor of real estate, whose purchase money is due and unpaid, may file a bill asking a sale of the premises in default of payment, and thus discharge himself of the equities of the vendee; but the vendee has no right to a decree of sale against the vendor for the purpose of paying the unpaid purchase money.</p> <p>4. Same—tender. Where thecomplainants in a bill for specific performance have succeeded to the rights of the original vendee, by purchase at a judicial sale, and the vendee’s contract of purchase has not been recorded so as to give notice of its terms, it will not be necessary for the complainants, before filing their bill, to make a formal tender of the precise sum due the. vendor. It will be sufficient if they offer to perform the contract when the vendor declines to recognize their right to a deed unless they pay him money which he had loaned the vendee.</p> <p>5. Equitable siobtgage. Where the vendor of land, after the sale, loans the vendee money, taking back an assignment of the contract to secure its repayment, with an agreement that it shall be forfeited if the money is not repaid when due, the transaction will be regarded as an equitable mortgage.</p> <p>6. Same—lost by laches. Where the holder of such mortgage, who is also vendor, is made a party defendant in a petition by creditors of the vendee seeking to establish a lien against the premises embraced in the contract as against the vendee, the petition alleging that the vendee holds the land under a contract of purchase from the vendor, and he fails to answer and disclose his rights as such mortgagee, but suffers such creditors to take a decree for the sale of the vendee’s interest, and become purchasers at the sale without notice of his secret lien ; the purchasers will succeed to the interest of the vendee, under the original contract of purchase, fully discharged from the lien of the equitable mortgage.</p> <p>7. Decree —how far conclusive. Where a petition to inforce a lien for materials furnished in the erection of a building is filed against the vendee and vendor of land, which alleges that the former holds the premises under a contract of purchase from the latter, and the vendor fails to answer, and a decree is taken and the land sold to the petitioners, this will not prejudice the vendor’s right to require payment of the purchase money and interest before parting with the title. But if he has any other claim upon the land, such as an equitable mortgage or secret lien, and fails to disclose it before decree and sale, the purchaser of the land without notice, will take the land discharged of such secret claim or interest.</p> <p>8. Forfeiture—vendoi' and vendee. A right of forfeiture, although tolerated, is not favored in courts of equity. Where the party seeking to inforce such right, by his conduct has misled others, and suffered them to acquire rights in ignorance of his right to declare a forfeiture when called upon to disclose the true state of the facts, a court of equity will not allow him to exact a forfeiture.</p> <p>9. Same—waiver. Thus, where a vendor had, in his contract for the sale of land, reserved the right to declare a forfeiture for con-compliance with its terms, and the contract was not recorded so as to afford notice of its terms, and when made a party defendant in a judicial proceeding against his vendee to establish and enforce a lien, and subject the interest of the vendee to sale, and failed to answer and disclose the terms of the contract and his right to insist on a forfeiture, or even to give notice thereof, but suffered the creditors to proceed to decree, and to advertise the sale of the premises, and then notified them of his intention to declare a forfeiture only three days before the sale, it was held that by his conduct he had waived his right to declare a forfeiture as against the rights of such creditors.</p> <p>10. Specie Contract. Where, by the terms of a contract for the sale of land, the purchase money is made payable, with interest, in specie funds, on bill for specific performance against the vendor, the decree, if for the complainants, must require them to pay in specie the sum due on the contract.</p>

<p>1. Corporation—acts of officers—presumption. In the absence of legislative enactment, or provision in their by-laws, corporations act through their president, or those representing him. Where an act pertaining to the business of the company is performed by him, it will be presumed that the act is legally done and binding upon the company.</p> <p>2. Same—vice-president. As a general rule, in the absence of the president, or where a vacancy occurs in the office, the vice-president may act in his stead, and perform the duties which devolved upon the president. In this case the charter did not mention a vice-president as an officer of the company, but, after providing for certain officers, it authorized the company to create other officers, and the company, in its by-laws, declared there should be a vice-president, and prescribed his duties : Meld, that he might perform the duties imposed upon the president in the same cases and under the same circumstances as though his office had been created by the charter.</p> <p>3. Same—deedby vice-president. Where it appeared,from the minutes of a railroad board of directors, that a resolution was adopted directing the president of the company to sell a tract of land and to execute the necessary deed therefor, under the corporate seal, and the president subsequently elected having refused to act, that the vice-president assumed to discharge the duties of president, and, in strict accordance with the resolution, conveyed the land by deed, under the corporate seal, signing as vice-president and acting president of the company, but the deed was not countersigned by the secretary, as required in the by-laws of the company: Held, that the deed was well executed, and amply sufficient to convey the title of the company.</p> <p>4. Same—deed countersigning. While it is usual for the secretary of such companies to attest the execution of such instruments, as the keeper of the seal, yet, if the charter of the company does not require such attestation, the deed will be good without it. Strangers dealing with the company are not required to know the provisions of its by-laws, and are not bound by them. They can only be expected to see that such an instrument is executed in the usual form by the head of the company.</p> <p>5. Same—deed. So, it has been held by this court that a deed executed by the president of a bank, with its seal attached, would be presumed to have been well executed and binding.</p> <p>6. Judgment men—notice. Where a grantee of land had his deed duly recorded before the recovery of a judgment against his grantor, the judgment did not become a lien upon the land, and a purchaser of the same, under execution on such judgment, will acquire no title.</p> <p>7. Tax title—evidence to admit deed. On the trial of an action of ejectment, defendant offered in evidence, as paramount title, a tax deed for the premises, made in pursuance of a sale in 1859 for taxes, but did not offer to prove the steps indispensable to a valid tax sale, and did not produce the judgment and precept: Held, that the court did not err in rejecting the deed as evidence.</p>

Thomas T. Tiptoe, Judge, presiding. This was a bill in chancery, by Abner Mitchell and wife, to rescind a conveyance of real estate, in the city of Bloomington, made by them to defendant in exchange for certain lands and • town lots in the State of Missouri, which defendant conveyed to plaintiff’s wife, on the ground of misrepresentation and fraud.

C. L. Higbee, Judge, presiding. This was an action of ejectment for the recovery of a tract of land in Brown County. After the defendant below had closed his case, the court, on motion, excluded from the jury all the oral evidence of defendant’s possession and payment of taxes, to which defendant excepted.

<p>1. Mandamus—return. The return to the alternative writ in this case having traversed all the material allegations in the writ, a demurrer thereto was overruled, and leave given the relator to withdraw the same, and make an issue of fact.</p> <p>2. SAME--ra/¿erc granted. A writ of mandamus is never granted, of course, but only at the discretion of the court, and only where some just- and useful end is to be attained.</p> <p>3. III. Central B. R. Co.—sole of its lands an credit. By the act of 1854 (Sess. Laws 192), a reasonable discretion was gran ted to this company to sell its lands upon credit, and authority may properly be inferred to fix a reasonable minimum price.</p> <p>4. Same—abuse of power. The courts have power to control any attempted abuse of the authority to sell on credit. The credit should not be extended so long as to postpone to an indefinite or an unusual time the day of payment. The price should not be so regulated 'as to prevent, or unreasonably retard, sales.</p> <p>5. Same—collecting purchase money. The company should not permit purchasers to retain the purchase money after maturity to evade the law, or with the view of relief from taxation, but should use all usual and reasonable efforts to enforce collections without unnecessary harassment or rigorous oppression of the debtor. Ordinary delay, not intended to further any bad or unlawful purpose, will not afford sufficient grounds for awarding a writ of mandamus.</p> <p>6. Same—compelling sales. The provision in the charter of the company directing that all the lands remaining unsold at the expiration of ten years from the completion of the road and its branches, shall be offered at public sale annually, until the whole is disposed of, imposes a duty in such vague and general terms, that this court, in view of the serious consequences and difficulties in the way, does not feel justified in enforcing it by mandamus without further legislation. If the legislature should prescribe the terms of sale,'the mode in which it should be conducted, not inconsistent with the rights of the company, and make the directions plain and definite, this court can then act upon its requirements and enforce them.</p>

<p>1. Declaration—when sustained by evidence. A declaration for a specific sum, averring that the amount has reached the defendant’s hands to the use of the plaintiff, is good for any portion of the sum which may be proved.</p> <p>2. Promise—what is a good consideration for. If A owe B and give his order on C for a sum that may come into the hands of C, to his use, and C accept the order, he is liable to B for so much of that sum as shall come to his possession, his acceptance being a promise founded upon a sufficient consideration.</p>

<p>1. Judicial, sale—administrator purchasing at his own sale. Where an administrator is the real purchaser at a sale of land by him for the payment of the debts of his intestate, by procuring another to bid off the land for his benefit, and such nominal purchaser, shortly after receiving a deed, conveys the premises to the administrator, a court of equity will set aside the sale on the application of the heirs.</p> <p>2. Former adjudication—when bar to suit. A bill was filed by the heirs-at-law of a deceased person to set aside a sale of land made by the administrator under an order of court, on the ground that he was the real purchaser at his own sale, through the medium of a relative, who, after receiving a deed from the administrator, conveyed the premises to the latter. It was shown that on a former bill filed by the widow and infant heirs against the administrator, a decree was entered, by consent, setting off to the widow a homestead in the premises, the bill seeking no other relief: Meld, that the decree in the prior suit was no bar to the second bill, as the matters involved in it were not adjudicated in the prior bill.</p>

C. D. Hodges, Judge, presiding. This was an action on the case by Lambert against the city of Jacksonville.

<p>1. Acknowledgment of deed—impeaching by parol evidence. Where the certificate of acknowledgment of a mortgage in due form shows that the wife relinquished her dower and homestead right, in the absence of fraud or imposition upon the wife, or combination between the mortgagee and the officer taking the acknowledgment, she will not be allowed to show in defense of a bill to foreclose that she did not in fact relinquish her dower and homestead right.</p> <p>2. Where the certificate of the acknowledgment of a deed is in conformity to law, it can only be impeached for fraud or imposition. The certificate must be judged of by what appears upon its face. Therefore, proof negativing the necessary facts shown therein, will not alone be sufficient to impeach the certificate.</p>

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

<p>Appeal from the Circuit Court of Fulton County; the Hon. C. L. Higbee, Judge, presiding.</p>