Volume 63 — Illinois Reports

Joseph Gillespie, Judge, presiding. Upon application to the circuit court of Madison county, under section 2 of the act of 1869 to provide for the permanent survey of lands, commissioners were appointed, who, on completing their survey and the examination of witnesses, made report to the court.

<p>1. Negligence—excavation in street by contractor. Where the owner of a lot in a city contracts with a skillful, reliable and competent builder for the erection of a house thereon, including a cellar under the sidewalk in the street, and surrenders possession of the property to the builder for the purposes of the work, and the work is not done under the direction of the owner, and injury ensues to a third person from the negligence of the contractor and not of the owner, such contractor is not the servant of the owner, and he alone is liable for the injury inflicted.</p> <p>2. Same—liability of contractor to owner for damages paid by him. Where the owner of a lot contracted with a competent workman for the erection of a house thereon, including the construction-'of a cellar under the sidewalk, surrendering the possession of the ground and the entire control of the work to the contractor, and gave no specific directions as to the manner in which the contractor should perform his work on the cellar, or how it should be constructed, and the contractor left the excavation in the sidewalk not properly guarded and protected, so that a third party without fault on his part fell into the same and was injured, and the owner of the lot was compelled to pay the same: Held, in an' action by the owner against the contractor, that if the injury was caused by the negligence of the latter, he was liable to the owner for the damages he had paid for such injury, the ordinance of the city requiring the contractor to protect such excavations by fences or other obstructions around the same to prevent injury to persons and the property of others.</p> <p>3. In a suit of this kind the court below instructed the jury, “that if they believe, from the evidence, that the defendant did the work which he contracted to do for the plaintiff in a skillful and workmanlike manner, and as he contracted to do it, that then the plaintiff can not recover back from the defendant what he has had to pay on account of the injury sustained by Reynolds by falling'into the excavation in the sidewalk, and they will And a verdict for the defendantHeld, that the instruction was erroneous as it wholly ignored the duty imposed on the contractor to guard and protect the community against the danger of injury by falling into the excavation, and protected the contractor, no matter how great his negligence was, if he did the work in a skillful and workmanlike manner.</p> <p>4. In the same case the court gave this instruction: “Even if the jury believe, from the evidence, that the defendant made the excavation referred to by the witnesses, yet, if they further believe, from the evidence, that it was made under the contract offered in evidence in this case, and by direction of plaintiff, then the plaintiff has no right to recover in this case, and they should find for defendantReid, that this instruction was erroneous and calculated to mislead the jury. If the plaintiff had given specific directions as to the manner of fencing the excavation, which had been observed, then the instruction would have been proper.</p> <p>5. When a contractor agrees to erect a building for the owner of a city lot, thereon, and make a cellar extending under the sidewalk of a public street, requiring an excavation, and receives full possession of the property for such purpose, and has the entire control of the work under the contract which contains no directions as to the manner of guarding the excavation, and the owner is subjected to the payment of damages on account of the negligence of the co'ntractor in the manner in which he leaves such excavation open and exposed, so that a person without negligence falls into the same and is injured, such contractor will be held liable to the owner to make good the damages he is compelled to pay on account of such injury.</p>

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

<p>Failure oe consideration—plea of. To an action on a promissory note the defendant pleaded that the sole consideration of the note was the ice to be formed on the ponds at the reservoir of the plaintiffs during the winter next following, and, in consideration of the ice so to be formed, lie executed the note; that no ice of any value was formed on said ponds during said winter, and that whatever ice was formed on said ponds was wholly useless to said defendant, wherefore the defendant avers that the consideration of said note has wholly failed: Held, that the plea was bad on general demurrer, the facts'-presentiug no defense to the note, there being no warranty or guaranty that any ice would form, or that it would be of any particular value.</p>

<p>1. Case—;fraudulent act to defeat creditor’s lien. A party who purchases goods aud chattels of a judgment debtor with knowledge of the creditor’s judgment and execution, which is a lien thereon, for the purpose of aiding the debtor to defraud the plaintiff in the judgment, where such purchase is an injury to such plaintiff by reason of the removal of the property and the insolvency of the debtor, is liable to the creditor in an action on the case for the damages occasioned by such act.</p> <p>2. A count in a declaration in such a case which fails to allege that the purchaser had knowledge of the existence of the judgment and execution at the time of his purchase, is bad on demurrer.</p>

Hiram B. Decius, Judge, presiding. This was an action to recover the amount of a certain county order. The following is a copy of the order : [[Image here]] Treasurer of said County, Pay Rufus C. Lawrence or bearer the sum of four hundred dollars for services rendered the United States as a soldier, out of any moneys in the treasury, not otherwise appropriated. A. B. Briscoe, County Clerk. Written across the face: “Wm.

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

<p>Town plat. In an action of trespass for entering upon plaintiff’s premises and tearing down his fence—the defendants defending under au order of the town board of the town of Virginia to remove the fence, the town claiming the premises as a public street—the court permitted to be read in evidence a copy from the records of a plat alleged to have been made under the authority of one Robert Hall, showing an addition to the town and in which the premises were laid down as a public street: Seld, that the plat was improperly admitted, there being no evidence that it was made by the authority of the owner of the premises, nor was it signed or acknowledged by him, but merely had the surveyor’s certificate explanatory of the diagram.</p>

<p>Bounty to volunteers. The record disclosing substantially the same facts that appeared in the case of Larimer v. The Board of Supervisors of McLean County, 47 Ill. 36: Held, that case must be decisive of this case.</p>

<p>Writ of Error to the Circuit Court of McLean county; James S. Ewing, Esq., acting Judge, presiding, by consent of the parties.</p>

James Steele, Judge, presiding. This was an action of assumpsit by the appellants against appellees upon a promissory note of $5000.

<p>1. Attorney’s pee—allowance for, in decree. Under the statute in a suit for partition or the assignmeut of dower, when no defense is set up, the court is authorized to order the payment of a reasonable attorney’s fee.</p> <p>3. In fixing the amount of a reasonable fee, the examination should be directed to what is customary for such legal services, where contracts have been made'with persons competent to contract, and not what is reasonable, Just and proper for the solicitor in the particular case. The inquiry should not what an attorney thinks is reasonable, but what is the usual charge.</p> <p>3. In determining the amount of such fee it is not merely the value of the estate partitioned, but the services performed, which should form the basis of remuneration. An attorney’s fee of $1000 in this case was held unreasonable.</p>

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

Joseph Gillespie, Judge, presiding. This was an action of replevin originally brought by appellee against appellant before a justice of the peace, and taken by appeal to the circuit court of Madison county. On the trial of the appeal the plaintiff below recovered.

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

<p>1. Dower—assignment—improvements by widow. A widow who occupies the lands of her deceased husband without payment of rent to the heirs at law, has no right to charge the heirs with the taxes paid thereon by her, nor to build houses, stables, or break prairie and reduce wild land to cultivation at the expense or charge of the heirs. And where the lands are sold because not susceptible of division, she releasing her dower in the land, it is error for the court to allow her for such taxes and improvements</p> <p>3. Same—lien for claim, against estate. On bill by the heir for the assignment of the widow’s dower, the court allowed the widow a claim established in her favor as administratrix, for debts of the estate, paid by her, to be paid out of the proceeds arising from the sale of the land: Held, no error, as such claim was an equitable lien, and not barred.</p> <p>3. Judgment of county court—settlement of administrator's account. Where an administratrix of an estate was allowed, on final settlement, a certain sum in her favor, on account of debts of the estate paid hy her, it was held, that she thereby became a creditor of the estate to the amount allowed her, and that the order of the county court was conclusive until reversed on appeal or impeached by bill in chancery showing a mistake in her account.</p> <p>4 Interest. The allowance of a claim against an estate by the county court, like any other judgment, draws interest from its rendition.</p>

Writ of Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of assumpsit, brought by the defendant in error against Jacob Schmidt and Elizabeth Schmidt, upon a promissory note executed by them in 1869.

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

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

<p>1. Constitutional law—apportionment of county taxes between county and city. Sec. 5 of Art. 9 of the constitution of 1848, requiring that taxes levied by counties, cities, etc., shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same, is not con. travened by a statute requiring a division and apportionment of county taxes when collected between the county and a city, and this, though the apportionment should unjustly discriminate against the county.</p> <p>3. Same—legislative control over county revenue. The revenues of a county are not the property of the county in the sense in which the revenue of a private' corporation is regarded; and the power of the legislature to direct its application is plenary.</p> <p>3. A county is a public corporation, which exists only for public purposes, connected with the administration of the State government. It follows that such a corporation, and of course its revenue, is subject to the control of the legislature, and when the legislature directs the application of its revenue to a particular purpose, or its payment to any party, a duty is imposed and an obligation created upon the county. .</p> <p>4. Evidence—certificates. An act of the legislature for a division and apportionment of the county taxes between a county and a city within its limits, provided that the county judge of the county and the mayor of the city should ascertain the proportion of taxes to be paid to the city, and required the county treasurer to pay the city her portion. The act did not, in terms, require the county judge and mayor to make any certificate of their apportionment: Held, that their certificate was prima facie evidence against the county of the proportion of taxes to be paid to the city, otherwise the duty imposed upon them would be useless.</p> <p>5. County—liability. In such a case, a direction by the legislature that when “the taxes are paid into the county treasury, the treasurer shall pay,” etc., imposes an obligation upon the county on the refusal of the treasurer to comply. The liability of the county arises from the fact of having the possession of money through its agent, the treasurer, which belongs to the city.</p> <p>6. Apfobtionment of taxes. Where an act of the legislature directed the county judge and the mayor of a city to apportion the county taxes between the county and a city upon a certain basis, which was done, it was held, in an action by the city to recover its proportion of such taxes, that there was no. necessity for an annual action to apportion for each year; and that the mere neglect of the city to obtain its portion for one or more years did not bar its claim for such years.</p> <p>7. Money had and received. The count for money had and received may be maintained where the plaintiff has a just and legal right to the money sought to be recovered. It lies for money which, equitably, the defendant ought to refund.</p> <p>8. Assumpsit—lies, when. Assumpsit may be supported for money, etc. accruing due to the plaintiff under the provisions of a statute, when there is no restriction to any other particular remedj’’.</p> <p>9. So, where, by a special act of the legislature, the county taxes were apportioned between the county and a city within its limits, and the county treasurer refused to pay the city her portion of such taxes: Held, that the money due the city from the county could be recovered in assumpsit, under the common counts.</p> <p>10. County government—change in. Some time after the passage of a law requiring the county judge and the mayor of a city to apportion the county revenue between the county and the city in a certain proportion, the county adopted the township organization system, and it was contended that this change in the county government had the effect to repeal or supersede the law, but it was held, that, as the legislature had named certain officers to perform this duty, the mere change in the system of county government did not supersede their powers and acts.</p>

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

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

<p>Appeal from, the Circuit Court of Edgar county; the Hon. James Steele, Judge, presiding.</p>

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

<p>Impounding animals—ordinance. Where a plaintiff’s horses escaped from his inclosure against his will, and he immediately went in search of them to put them up, but before he found them they were seized by the police constable of the town where they were found running, who impounded them under the ordinance of the town: Held, that under such circumstances the horses were not running at large in the legal sense of the term, and that the constable had no right to detain them from the owner.</p>

<p>Appeal from the Circuit Court of Douglas county; the Hon.' James Steele, Judge, presiding.</p> <p>This was a bill in chancery to enjoin the board of directors from paying the salary of the superintendent of schools, in the city of Olney, on the ground that the board had no power to appoint one.</p>

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

<p>1. " Negligence—escape of fire from, locomotive—presumption. Where fire is communicated from a locomotive engine of a railroad company and thereby destroys the property of another, the presumption of negligence on the part' of those having the care and management of the engine, created by statute, will not be sufficiently rebutted by proof that the engine was, at the time of the injury, provided with the best mechanical contrivances to prevent the escape of sparks, and that such contrivances were in good order. It should be further shown that the engine was properly managed under the circumstances surrounding the case.</p> <p>2. Evidence—volunteer statement. Where the inquiry made of a witness is properly allowed by the court, the ruling of the court will not be held erroneous because the witness, in answer, makes a statement of fact not called for.</p> <p>3. Bkrok—without prejudice—not cause of reversad. The mere fact that testimony is improperly admitted on the trial, where it can not work any essential harm to the party objecting, is not such an error as to justify a reversal.</p>

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

Charles D. Hodges, Judge, presiding. The submission did not require the award to be in writing, or copies thereof to be delivered to the parties.

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

Charles Turner, Judge, presiding. This was a suit brought before the police magistrate of the town of Petersburg to recover for the breach of an ordinance of the town. The venue was changed to a justice of the peace, by whom the defendant was fined $10 and costs. The defendant appealed to the circuit court, where the jury found a verdict of $50 in favor of the plaintiff.

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

James Steele, Judge, presiding. This is an appeal to reverse a judgment recover by Black-man against the appellant for $75, the value of an animal killed by a train entering the town of Vermilion.

James Steele, Judge, presiding. This was an action on the case, originally brought by Holloway against the railroad company, before William P. Stone, a justice of the peace in Edgar county, to recover of the defendant the value of a cow, the property of the plaintiff, claimed to have been killed on the track of this company, by its engine and train, through the negligence of defendant’s servants.

Charles D. Hodges, Judge, presiding. - This was an action on the case brought by the appellee against the appellant to recover the value of a cow alleged to have been killed by the negligence of the appellant.

<p>1. Landlord and tenant—attornment under false claim,—disputing landlord's title. Where a person entered into possession of land under one landlord, and was then induced to attorn to another under the belief and upon the claim and representation of such other person that he had the title to the premises, and when sued in ejectment permitted his second landlord to defend in his name, under an agreement to indemnify him against costs, and held possession for him until evicted in the suit, whereupon he paid rent to the original landlord, who was plaintiff in the ejectment suit: Seld, that a recovery for rent in a suit against the tenant by the heirs of second landlord, was erroneous, and that, to sanction such recovery, -« ould be giving a premium to falsehood and subject a tenant, who had done no wrong, to a double payment of rent.</p> <p>%. The maxim that a tenant shall not dispute the title of his landlord has no just application to such a case. A person having entered into possession of land under one, and who was induced to attorn to another under the belief and upon the claim of the latter that he has title, when sued for the rent by the heirs of such second landlord, may show in defense that his attornment had been procured by a false claim of title, and that the rent had been demanded and paid to the landlord from whom he derived his possession, as the rightful owner.</p> <p>8. It was contended that a new trial was taken in the ejectment suit after the eviction of the tenant, which the record failed to show. But it seems that such fact would not affect the merits of the case. Upon eviction in the suit, the tenant was liable for mesne profits, and having no guaranty of protection against such liability, and the landlord having failed to establish his claim by which he procured the attornment, the tenant was justified in regarding it as groundless and protecting himself from a prosecution for mesne profits.</p> <p>4. It seems that a tenant may show, in defense of a suit by his landlord for rent, that the landlord’s title has expired, or that a claim had been made on the tenant by one who has the real title, and can enforce payment of the rents from him in an action for use and occupation, if there has been a fresh demise, or an arrangement equivalent to one, or in a proceeding to recover mesne profits, and the tenant has submitted to such claim. But in such cases, the burden of proof is on the tenant.</p>

James Steele, Judge, presiding. This was an action of ejectment, brought by Jesse S. Cox against Harriet Sawyer, to recover the northwest quarter of section 6, township 12 north, range 8 east of the… Held: by title from the railroad company, the southwest quarter, and had occupied and cultivated up to the arbitrary line referred to, down to the commencement of the suit, and that appellee, Cox, had occupied and cultivated down to the same line.

<p>1. Practice in chancer?—upon allowing exceptions to sufficiency of answer. The statute is imperative, if an answer is adjudged insufficient on exceptions filed, that the defendant must be ruled to answer further before the cause can be set down for a hearing.</p> <p>2. So, in a suit to foreclose a mortgage, where, upon allowing exceptions filed by complainant to defendant’s answer, the court entered a decree of foreclosure, it was held, the decree was premature—that the defendant should have been ruled to put in a sufficient answer.</p> <p>3. Same—exceptions to answer—waiver as to its character as such. And it was too late, upon appeal by the defendant to this court, for the complainant to urge that the paper put in by the defendant as an answer was no answer, as he had treated it as an answer by taking exceptions to it as the statute required.</p>

Charles Turner, Judge, presiding. This yvas a suit for the violation of an ordinance of the town of Petersburg. Proof of three sales of liquor Avas made, and that the defendant had no license. It appeared that the corporate authorities had raised the license fee from §200 to §600 per annum, which was urged as amounting to an absolute prohibition. It did not appear that defendant attempted to procure any license whatever.

This is an application to this court for a writ of mandamus to compel the board of supervisors of Ford county, in this State, to issue-the bonds of the county to the amount of $142,-000 to the Lafayette, Bloomington and Mississippi Railroad Company.

<p>1. Principal and agent—in transaction with third parties. If an agent sell and deliver personal property in payment of debts contracted by himself, in his own name, to a third party, without disclosing his agency, the right of the purchaser can not be disturbed by the principal or his attaching creditors.</p>

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

<p>1. Ejectment—proof of title by parol—presumption. In an action of ejectment, where the defendant sought to show, by parol evidence, that the plaintiff’s title had been divested under a judgment, execution and sheriff’s deed, the records showing the facts having been destroyed by fire, it appeared the attorney who procured the judgment had no recollection of a sale and deed, although his client resided abroad, and, as he said, all the papers would have come into his hands—he could only give his impression from the general course of his business. And the sheriff who was in office at the time of the alleged sale, being called, testified that he had no recollection of ever selling the premises in controversy: Held, that the fact that neither the sheriff nor the attorney had any recollection of a sheriff’s sale, raised a strong presumption that it never took place.</p>

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

<p>Appeal from the Circuit Court of Logan county; the Hon. Thomas F. Tipton, Judge, presiding.</p> <p>Adam Seibert, having been appointed by Hiram L. Pierce, the sheriff of Logan county, to act as jailor of the county at a compensation of $40 per month, and having served in that capacity for the period of nine months, presented his account for such services, amounting to $360, to the board of supervisors of the county. That body refused to allow the claim, whereupon Seibert took the case, by appeal, to the circuit court, where a trial was had resulting in a judgment against Seibert for costs. He now brings the record to this court and asks a reversal of that judgment.</p>

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

James Steele, Judge, presiding. This was an action of replevin, brought by Margaret J. Eakin against Mahala E. Eakin, for the recovery of a piano. The plaintiff claimed the instrument as her sole property. A trial by jury resulted in a verdict and judgment in favor of the defendant. The plaintiff appeals.

Charles Turner, Judge, presiding. Peter Hoker made his promissory note, in the usual form, payable in one year to the order of Mary A. Hoker, who was his wife, who indorsed it over, before maturity, to James W. Boggs. The court having entered judgment on the note, the case comes to this court on appeal.

Weit of Eeeoe to the Circuit Court of Ford county; the Hon. A. J. Gallagher, Judge, presiding. This was an action of ejectment, in which the sufficiency of the finding and judgment is questioned.

Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, brought by Swanston against Ijams, the county treasurer of McLean countyx to recover back taxes illegally assessed. Upon a trial by the court, a jury being waived, judgment was rendered in favor of the defendant, to reverse which the plaintiff appeals.

Thomas F. Tipton, Judge, presiding. This was an action on the ease by David Wilson, against appellant, for a personal injury from a train of appellant’s cars, whereby he lost his right hand. The declaration charged that the accident was caused by the negligent and insufficient manner in which the platform was built. Trial and verdict for $14,000. Motion for new trial, which was granted. At the second trial the verdict was for $8000. Motion for new trial, which was overruled.

<p>1. Shelly’s case—rule in. The rule in Shelly’s case is, “When the ancestor takes an estate of freehold by any gift or conveyance, and in the same gift or conveyance there is a limitation, either mediately or immediately, to his heirs or heirs of his body, the word ‘heirs’ is a word of limitation of the estate and not of purchase. The remainder is immediately executed in possession in the ancestor so taking the freehold.”</p> <p>. 3. So, where land was' conveyed by deed to A “during the period of her natural life, and to her heirs forever thereafter,” it was held, that, as the deed conveyed a life estate to A, which is a freehold estate, aud the immediate remainder was therein limited to her' heirs, all the requisites of the rule in Shelly’s case were fulfilled, and A took the fee in the land.</p>

Thomas F. Tipton, Judge, presiding. One Wheeler recovered a judgment in the State of Missouri, before a justice of the peace, against James T. Snell and one Woodworth. The cause was taken, by appeal, to the circuit court, Woodworth and Snell signing the appeal bond as principals and Warner as surety.

John A. McClernand, Judge, presiding. This was an action on the case brought by Jacobs against the railroad company, to recover of the latter damages for a personal injury to the former, occasioned by the alleged negligence of the railroad company. A trial by jury resulted in a verdict and judgment for the plaintiff of $2500. To reverse this judgment the defendant appeals.

<p>1. Evidence—of recorded deed. An original deed, bearing certificate of having been duly recorded, is the highest class of evidence, and may be read whether the official record book be in existence or not.</p> <p>2. Burnt recobds—secondary evidence. Where a record of deeds is destroyed, the index book in which the deed is described, and its record in the proper book certified, is good evidence of the fact that a deed was recorded.</p> <p>3. Notice to pubchasebs—effect of record. The notice which the due recording of a deed gives to all the world, is not extinguished or lost by the destruction of the record book; nor can one, who obtains adverse title, be deemed an innocent purchaser.</p> <p>4. Acknowledgment. It is not indispensable that a certificate of acknowledgment conform exactly to the language of the statute. It is sufficient to show that the statute has been strictly complied with.</p>

<p>1. Indictment fob obstructing a highway—description. In a prosecution under an indictment charging the defendant with obstructing a public highway, if a local description sufficient to identify and fix the precise point of obstruction is given, as well as the termini of the road, the latter may be disregarded, and proof of the existence of a road at the place of obstruction is sufficient.</p> <p>2. But where the allegation is general, charging the obstruction of a road leading from one place to another, the existence of the road between the points named must be proved as a matter of essential description.</p> <p>3. Same—proof of existence of the road as a public highway. In such a prosecution, where user was relied on to establish the existence of the road as a public highway, the court would not permit to be answered certain questions put to the witnesses on the trial, by the defense, which were calculated to elicit evidence that the road had been changed; that there were different lines of travel; that the travel was not confined to one track; that the proper road authorities did not exercise control over or repair the road,' and that there was express denial, on the part of the owner of the land, of right in the public to the use of the road: Held, that this was pertinent testimony as tending to show there was, not a continuous and uninterrupted use of a definite line of travel, and a want of recognition of it by the proper authorities, and acquiescence by the owner of the land, which should have been admitted to be considered and weighed by the jury, in connection with all the other testimony in the case in regard to the use of the road, in order to determine the fact as to its existence as a public highway.</p>

<p>1. Insurance—giving note for instalments of premium—whether the assured a stockholder. Where an insurance company was authorized to insure either upon the customary mutual plan, taking deposit notes subject to assessments from time to time in proportion to the losses, or to insure for a term of years at a fixed annual premium, receiving the first year’s premium in advance and taking a note payable in instalments at the commencement of each of the years during which the policy would run, it was held, that a policy issued upon the latter plan did not make the assured a stockholder or liable for the debts of the company, but was merely a contract by which the company undertook to indemnify the assured against loss for a term of years, provided he would pay a certain sum at the beginning of each year.</p> <p>2. Same—bankruptcy of company—liability of assured on ps'emium note. A party executed to such a company a note for $16.80, payable in annual instalments of $4.20. The note was given for a policy of insurance running five years from its date. The premium for the first year was paid in advance, and the note was for the four succeeding years. The first instalment, due at the beginning of the second year, was paid, but before that year expired the company became insolvent and suspended business, and the assured refused to pay the next instalment. There was a provision in the policy that, in the event any instalment should remain unpaid for thirty days after maturity, all the instalments or premiums should be due and payable as liquidated damages. In an action brought by the receiver of the company to recover the remaining instalments, it was held, that nothing was recoverable, as, upon the company becoming bankrupt, the consideration of the note—the protection against loss—failed.</p>

<p>Appeal from the Circuit Court of Schuyler county; the Hon. C. L. Higkbee, Judge, presiding.</p> <p>This was an action of replevin, brought by Crosby against Gill, for 115 head of cattle. The declaration contained two counts, the first alleging an unlawful taking and detention, and the second an unlawful detention. Defendant filed five pleas, to-wit: 1, non cepit; 2, non detinet; 3, property in defendant ; 4, property in James A. McGrew; and 5, property in David Risinger. A similiter was joined on the first two, and replication to the others denying property in the several parties named in the pleas.</p> <p>The principal facts are given in the opinion of the court. The circuit court allowed the plaintiff to prove, against defendant’s objection, by Russell W. Crosby, son of plaintiff, that, in November, 1868, and before the sale to Gill, “Risinger told me that the cattle all belonged to father; that he furnished all the money to buy them ; that he had full charge of them, of buying and selling; that he (Risinger) had nothing to do with the cattle; he was to furnish slop for them, and was to have a share of the net profits after cattle were sold.” Also by Stephén Roney: that Risinger, in a conversation at Peoria, before the sale of the cattle, Gill not being present, said Crosby ivas going to feed cattle at his distillery ; that he (Risinger) had nothing to do with it; that Crosby was to have the sole management of the stock part of the business. This testimony was objected to because Gill, the appellant, was not present.</p>

Wbit op Ebbob to the Circuit Court of Ford county. This was an action commenced on the 31st day of March, 1868, by Moses Walker against Franklin Oliver and others. Judgment was obtained against Oliver by default, and a jury was sworn to assess the damages, who returned a verdict against him for $5500, upon which judgment was entered. At a subsequent term of the court, upon motion of Oliver, this judgment was set aside.

<p>Appeal—when it willjie. It is only from final judgments or decrees that an appeal will lie to this court. And where questions are presented upon appeals from decisions of the lower court not final, this court will refuse to consider them, and will dismiss the appeal.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. Arthur J. Gallagher, Judge, presiding. This was a prosecution under an indictment for forgery, found by the grand jury of Macon county at the July term of the Macon circuit court, 1871, against Stephen. A. Randall.

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

<p>1. City op Bloomington, duty of., to keep its streets in repair. The charter of the city of Bloomington gives the city council full power to keep in repair the streets, and to provide for keeping them in repair, and to prohibit obstructions therein. This power being granted to be exercised for the public benefit, its execution can be insisted upon as a duty.</p> <p>2. Same—of the remedy to compel the city authorities to act. And a writ of mandamus is an appropriate proceeding to. compel the city authorities to act.</p> <p>3. Mandamus to compel a city to put its streets in repair—to whom the writ should he directed. The power having been given to the city council, and the charter providing that the mayor shall preside at its meetings, and in case of a tie in any vote of the council shall give the casting vote, such a writ is properly directed to the mayor and city council, in their official capacity, instead of to the city of Bloomington.</p>

<p>1. Void proceeding. A proceeding, declared by competent tribunal void, and set aside, is inoperative and without legal effect as to all other proceedings.</p> <p>2. Official action—definition of. An act, void in law, is, in law, no act, and all things relating to the same subject matter may proceed as though no attempt had been made.</p> <p>3. The right of condemnation of private property for public highways reaffirmed.</p>

<p>1. Final decree—what is—appeal. When the rights of the parties to the controversy are settled and determined b3r a decree, it is so far final that it may be reviewed on appeal or error.</p> <p>2. Same—;foreclosure. Where, on bill to foreclose a mortgage, a decree was rendered which found that the mortgage was given; that the debt was no.t paid; ascertained the amount due; directed its payment on or before a specified time, and in default thereof, that the premises be sold and the equity of redemption barred, except such as the statute allowed, and if not so redeemed, that the master should make, execute and deliver a deed to the purchaser and report to the court: Held, that such decree was so far final as to be reviewed on appeal or error.</p> <p>3. It is not the last order in a case approving of the sale, the execution of the deed, or the report of the officer that a writ of assistance has been executed, that is the only final decree from which an appeal or writ of error lies, but it is the decree which settles and fixes the rights of the parties. The orders which follow are in the nature of an execution of the decree, and not the final decree in the case.</p> <p>4 Same—cross bill. When the court proceeds to a hearing on the original bill before a cross bill is ready for hearing, and renders a decree of sale in foreclosure of a mortgage, this will not make the decree interlocutory, but it is as final as if the cross bill had never been filed, and may be reviewed in this court. Q</p> <p>5. Cross bill—practice. A cross bill is no part of the original proceeding and does not depend upon it. By filing such a bill the suit will not be delayed. The two cases may be tried together if they are both ripe for hearing, but if not, then separately. It is no error to proceed to a hearing on the original bill before the cross bill is ready to be heard.</p> <p>6. Foreclosure—decree of immediate possession. A decree on bill to foreclose a mortgage, after finding the amount due, directing its payment within a certain time, and ordering a sale of the premises in default of such payment, further ordered “that said purchaser or nurchasers have immediate possession of said premises as soon as the same is sold, and that the purchaser or purchasers have the proper writ and process issued in this cause to put them in possession of said premises, to wit: a writ of assistance, and that they be put in possession of said premisesSdd, that the award of immediate possession, and a writ of assistance, was erroneous. The purchaser is not entitled to possession before the execution of the master’s deed to him.</p> <p>7. Judicial "sale—rights of purchaser. The sale of real estate under judgments and decrees is purely a statutory regulation, and purchasers at such sales acquire only such rights as the statute confers. The purchase, whether at a sheriff’s or master’s sale, depends upon the same principles. It is a purchase on time, and is also conditional. The purchaser is not entitled to possession until he receives a deed. »</p> <p>8. Vendos and purchases—right to possession. Where real estate is purchased on time, the purchaser has no legal right to possession before he receives a conveyance, unless he is admitted to it by the vendor. The right, to possession always follows the legal title, unless given by the owner under an agreement.</p> <p>9. Error—obviating. Where there is error on the face of the record, it can not be obviated by an agreement made after the cause is submitted. It will not change the record, nor can it be substituted as a part of the record. Like any other agreement, it can only be enforced by an appropriate action or bill in equity. It is not res adjudicata, and, hence, neither takes the place of the decree nor operates as an amendment thereof.</p>

James Steele, Judge, presiding. This was an action of debt, brought by Taylor against Ross, upon a certain written agreement. A trial was had before the court and a jury, when the following verdict was returned: “ We, the jury, find for the plaintiff, and assess his damages at $480.” To this verdict, and the form thereof, the defendant excepted, and filed his motion for a new trial, but the court overruled the motion and gave judgment on the verdict of the jury.

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

Horatio M. Y ande veer, Judge, presiding. This was an action of assumpsit, brought the 6th of April, 1871, by Pepperdine against Knott, on a promissory note for $398, executed by the latter and payable to the former. Upon a trial by the court, a jury being waived, judgment was rendered in favor of the plaintiff. The defendant appeals.

Chauncey L. Higbee, Judge, presiding. This was an action brought by appellee before a justice of the peace, to recover for a cow killed by the train of appellant while approaching the station in the town of Avon, resulting in a verdict of $50 and costs for appellee. Appeal was taken to the circuit court, and on trial by the court the judgment was affirmed. To reverse this judgment appellant brings the case to the supreme court.

H. M. Vandeveer, Judge, presiding. This was an action of debt, brought before a justice of the peace by David Duncan, who sued as well for himself as for the town of May, against John Waddle and Josiah Waddle, to recover the penalty provided by statute for obstructing a public highway.

<p>1. Mistake—reforming deed for. A deed executed by a woman while-sole, may be corrected in a court of equity for a mistake in the description of the premises conveyed, after her subsequent marriage.</p> <p>2. The land of A having been sold under execution for much less than its value, he, for a nominal consideration, conveyed the same by quit-claim to F, his brother, to enable the latter to redeem and apply the proceeds of the land in payment of A’s debts. The land not having been redeemed, and a sheriff’s deed being made to the purchasers, F procured the purchasers to convey the same to the widow of A at much less than its actual value, F furnishing all the money for the purpose. F then prepared a deed from the widow to himself, intending to describe the same land, but by mistake described a different tract, and the widow executed and acknowledged the same. F then sold and conveyed the land in parcels to other persons for a full consideration, who took possession with the knowledge of the widow and improved the same. The widow subsequently married and discovered the mistake, when she brought ejectment. The purchasers filed their bill to reform her deed to F, alleging the mistake. The mistake in the description was shown by parol testimony of that fact, and that she did not own or claim any other land. The court below rendered a decree reforming her deed: Held, that the decree was correct, there being no fraud practiced upon the widow.</p> <p>3. In such case it was not material whether F property applied all the purchase money received by him or not, as that was a matter between him and the widow or the heirs of A.</p>

<p>1. Limitations—mesne profits. All rents and profits which accrued more than five years before the filing of suggestions claiming mesne profits, are barred by the statute of limitations.</p> <p>3. Same—plea. In a proceeding to recover mesne profits under the statute, a plea that the cause of action in the several counts mentioned did not accrue to the plaintiff at any time within five years next before the commencement of the suit, was held good on demurrer.</p> <p>3. Mesne profits—new suit. A proceeding to recover mesne profits under the statute, after a recovery in ejectment, is substantially a new suit, and not a continuation of the action of ejectment. In it there is required a new service, new declaration, pleadings, trial and judgment. Its commencement is the filing of suggestions, and all pleas should be framed in that view.</p> <p>4. The plaintiff is not restricted to a recovery of rents accruing before the commencement of the suit in ejectment, but may recover for the rents and profits up to the time of filing his suggestions, if the defendant continues in possession.</p> <p>5. Set-off to mesne profits—limitation. The right to set off the value of improvements placed upon the land more than five years before the commencement of the proceeding as against rents and profits, is barred by the statute of limitations when relied on. The statute must operate alike upon the claims of both parties.</p> <p>• 6. Same—taxes. Taxes paid by the tenant while in the possession of the land, is a just and proper set-off to the rents and profits for which he is chargeable. “</p> <p>7. Same—evidence. In a proceeding to recover mesne profits^ commenced January 27, 1871, the defendants offered to prove, as a set-off, the worth of keeping the fences in repair from November 12,1862, to March 8, 1870, the date of the recovery in ejectment, which the court refused to allow: Held, that the court decided correctly, for two reasons: first, because there was no proof that the fences needed repairs, or that any were made; and secondly, because, at common law, a trespasser in possession is not allowed to recover for repairs or improvements, and our statute only allows improvements to be recouped from the rents and profits.</p> <p>8. Same—what improvements. In the same-case, the defendant offered to prove that he broke up the land for cultivation, which the court rejected : Held,, no error, because there was nothing to show but that it was in the usual course of husbandry. If it had been shown that it was raw prairie and useless for farming purposes the year it was broken, then it would have been an improvement for which a fair price should be allowed if done within the five years for which he was liable to pay rents and profits. If the prairie was of such a character as only to require it to be plowed to bring it into immediate cultivation, then-nothing should be allowed for such breaking.</p> <p>9. Mesne profits—vacant land reduced to cultivation. Where a party has taken possession of vacant land and reduced it to cultivation, he will not be excused from the payment of rents after a recovery in ejectment against him. In such case, the jury' should allow, as damages, the reasonable value of the premises, as though it had been vacant at the commencement of five years before the filing of the suggestions, and had been leased for that term, with the obligation on the lessee to make the improvement. The defendant should not be required to pay for the use of improvements made by him within the period of limitation.</p> <p>10. Pleading—practice—two pleas of same matter. Where two pleas are filed, presenting the same defense in substance, on motion, the court may require the defendant to elect on which he will proceed, and strike the other from the files. But such objection does not affect their substance or form, or render them obnoxious to a demurrer.</p>

H. M. Vandeveer, Judge, presiding. This was an action of assumpsit, brought by Skinner against Knott. The declaration contained only the common counts. The defendant filed the plea of the general issue, and, upon a trial by jury, a verdict and judgment was rendered in favor of the plaintiff for $128.42. The defendant appeals.

Arthur J. Gallagher, Judge, presiding. This was an action on the case brought by Ada Fisher against the city of Decatur, to recover damages for an injury received by reason of a defective sidewalk in the city. Upon a second trial in the circuit court, the cause having been previously tried and brought to this court and the judgment of the court below reversed, a verdict and judgment was rendered in favor of the plaintiff for $3483.33. The defendant appeals.

Thomas F. Tipton, Judge, presiding. The Trustees of the Soldiers’ Orphans’ Home, by a resolution properly adopted and recorded on their minutes, hired Bobert Shaffer for one year. He was, before the expiration of his term, summarily dismissed, as appears, without justifiable cause, and brought suit to recover wages for the unexpired portion of his term. Judgment being in his favor, the trustees bring the case to this court for review.

Joseph Gillespie, Judge, presiding. This is an appeal from the May term of the Madison circuit court, 1871, brought, by consent, to the Central Grand Division of this court. It appears that Bisser and Bawson recovered two judgments against Jarvis, before Andrew Mills, a police magistrate, on which executions were issued December 26, 1868, and placed in the hands of Willoughby, a constable.

<p>1. Executors—what is reasonable care and discretion. When executors, who are chargeable with payment of debts out of proceeds of the estate, refuse to redeem from a mortgage sale, considering the value of the land equalled by the amount necessary to redeem, they have acted with reasonable wisdom and discretion, and nothing more should be required, even though the land may, in a few years, greatly increase in value.</p> <p>2. Same—culpable negligence. When an insolvent debtor, from whom collection can not be made upon execution, offers to turn out unincumbered real estate, with clear title from a third party, and the executor neglects to receive it, whereby the debt is lost, it is culpable negligence, for which he is-.liable, especially if it be shown that, during the same time, he has collected debts due himself and others from the same party.</p> <p>3. Executors and like persons must, in the execution of trusts, bestow that degree of diligence which men ordinarily use in the management of their own affairs; and if, through lack of taht, the interests of the trust estate are damnified, they must make good the loss.</p> <p>4. Profits and interest on trust funds. He who uses trust funds to his own profit is chargeable with such profits, if they can be ascertained; or, in lieu thereof, with interest on the sum used.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. James Steele, Judge, presiding.</p>

<p>1. New trial—;finding of jury. Where the evidence is contradictory and conflicting as to whether a sale of cattle was conditional or absolute, so that it is impossible to say on which side it preponderates, this court will not disturb the finding of the jury.</p> <p>3. Instructions—repeating. Where the instructions given contain all the important matter in those refused, there will be no error in refusing to repeat them.</p>

<p>Pakthekship—what constitutes. The joining of two or more persons in a single adventure^in which the profits are to be equally divided, does not constitute them co-partners in such sense as will oust a court of law of its jurisdiction in respect thereto.</p>

Hatch, Esq., by consent of parties, acting as Judge. This was an action of ejectment, brought by Charles T. McCarty against Seymour Chamberlin and Frederick Salsbury, to recover of the defendants certain lands in McLean county. Upon a trial before the court, on February 8, 1870, a jury being waived, the issue was found in favor of the defendants.

Charles D. Hodges, Judge, presiding. The Peoria, Pekin and Jacksonville Railroad Company filed its application and petition, in conformity to the law of June 22, 1852, for the condemnation of right of way over certain lands designated in the petition as the property of George W. Laurie, in the county of Morgan.

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

<p>1. Surety on note—when discharged. An agreement by the creditor with the principal debtor not to sue, or that, on part payment, he will not sue him for the remainder, if without the consent of the surety, discharges him.</p> <p>2. A security may recover money paid to the use of his principal, but if the principal be already discharged and owe nothing, such payment is not to his use, and the security has no remedy.</p> <p>3. Consent of surety. The liability of the surety can not survive that of his principal unless by his own agreement.</p> <p>4. Rights of sureties—not merged in judgment. As the security has right to repayment from his principal after payment of a judgment to his use, he is discharged by the release of his principal in the same manner as before judgment.</p> <p>5. Consideration. The holder of a promissory note recovered a judgment thereon for $2039.58. Subsequently the - creditor agreed with the principal debtor that if he would give security for the payment of $500 of the judgment, he would never collect any further portion of the judgment from him, and the security was given accordingly: HeId, that the giving of such security constituted a sufficient consideration for the agreement.</p>

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

Chables D. Hodges, Judge, presiding. At the April term of the Morgan county circuit court, 1869, George M. McConnel, executor of Murray McConnel, deceased, recovered three several judgments by default against Jeriel Wilday and others, upon notes given to Murray McConnel in his lifetime.

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

<p>1. Widow’s dower—bequest in lieu of. A bequest with conditions, made expressly in lieu of dower, must be permitted to have the effect prescribed, if accepted by the wife with a proper understanding of her .position.</p> <p>3. Proof of her relinquishment. The sale of the property by the executor under authority of the will, in her presence and with her verbal consent, and her voluntary removal from the homestead, concludes her rights in the case.</p> <p>3. Estoppel. Having proceeded so far as to induce innocent parties to act upon the faith of her acceptance, and to expend their money, she must, by the just principles of equitable estoppel, be held to her election.</p>

<p>Appeal from, the Circuit Court of Cass county; the Hon. Chaeles Tubneb, Judge, presiding.</p>

Charles D. Hodges, Judge, presiding. This is an appeal from a judgment under a summary statutory proceeding for the failure of the appellant, late sheriff of Morgan county,- to pay over money collected by him from persons convicted of selling liquor contrary to law, and which was payable into the school fund—the appellee being superintendent of schools for his county. Upon errors assigned, the case comes by appeal to this court.

<p>1. Railroads—when liable for injury to one employee through the fault of another. If a servant of a railroad company be injured through the incompetency and unskillfulness of a fellow-servant, or in consequence of defects in machinery or track, and the company be guilty of negligence in the employment and retention of such agent, or in the construction and repair of its machinery and track, it is liable in damages.</p> <p>2. Habitual intemperance of a conductor, under circumstances bringing knowledge thereof to his employers, is sufficient to render them liable for injury resulting therefrom.</p> <p>3. Contributory negligence. Partial or slight negligence and inattention of the party injured will not bar recovery, when palpable negligence of the employer is proven.</p> <p>4. Instructions. The giving or refusing of instructions, when it is clear that the jury are not misled, and when substantial justice has been done, will not justify setting aside the judgment.</p>

H. M. Vandeveer, Judge, presiding. This was a petition for a mandamus to compel the trustees of schools of township number 7 north of range number 6 west of the third principal meridian, to issue township bonds in aid of the construction of a railroad, in compliance with a subscription previously made in consideration of the passage of its track through their township.

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

<p>1. Contbact—rescission for breach—tenancy. A tenant who erects a building upon the land of another, under contract for mutual occupation and use, may sue for breaches of the contract, but can not seek a rescission of it and a recovery of the cost of the building upon the qucmtim meruit unless there be a covenant of purchase. A reserved right to purchase does not create an obligation to do so.</p> <p>2. Same—practice—misjoinder. Counts for breaches of a contract and counts for rescinding the contract itself can not be joined -in the same declaration, since in the one case the subsisting obligation of the contract is affirmed, while in the other the count, in effect, denies its existence.</p>

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

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

John A. McClebbajsto, Judge, presiding. This was an action of assumpsit,- by Smith against Yocum, in the Sangamon circuit court, on a promissory note made by Yocum to the order of T. W. Barbour for $320, payable in one year, dated March 5, 1868, which had been indorsed over to M. Matteson, and by him to Smith, a few days after its date. On June 8, Smith notified Yocum by mail that he had purchased the note, advising him where he had placed it for payment.

Charles D. Hodges, Judge, presiding. This was an action in replevin for the recovery of certain cattle in the possession of Craig claimed by Eohrer. The case is voluminous, but all that was material is embodied in the facts furnished by the opinion, in which are repeated the erroneous instructions of the court below as to the effect of testimony brought by the appellants to contradict and discredit the evidence given by the appellee in his own behalf.

<p>' 1. GkrABDiAH—liability of. When a guardian, with a view of preserving an estate unimpaired until the heirs become of age, leases for a less sum than could be obtained from' ordinary yearly rents, first securing the approval of the probate court, and acts in manifest good faith, he is not liable for having failed to secure the higher rent.</p> <p>2. Same—error of judgment. A rule which would subject a guardian to a sort of fine for a mere error of judgment, is inapplicable to the character of the office.</p>

<p>1. New trial—conflict of evidence. A verdict based upon a comparison of conflicting testimony, should not be disturbed unless the injustice be manifest, nor will the refusal of the judge to set aside the verdict in such case be reviewed, unless it is apparent that he acted under misapprehension. . i</p> <p>2. Instructions. When based upon the evidence, instructions which accurately state legal propositions may be given. It is not error to refuse to give an instruction in which facts are assumed which it is the duty of the jury to find from the evidence. Nor is it error to refuse instructions which, though containing accurate legal propositions, are not material to the issue.</p>

John A. McClernand, Judge, presiding. Suit was brought in the Christian county circuit court upon notes given to the appellee by Wm. J. Hiskett, for rent of farm lands to Hiskett, the appellant signing as. his security. The principal was not served. During the proceedings the case was removed by change of venue to Sangamon county, judgment had for the appellee, and appeal upon bill of exceptions taken to .this court.

Thomas F. Tipton, Judge, presiding. This was an action of ejectment, brought by Dalton, to recover a tract of land. He showed patent from the United States to John Marshall Dec. 24, 1849, and deed from Marshall to himself, June 21, 1871. The defendant, Lucas, exhibited a sheriff’s tax deed dated July 1, 1862, upon a sale made June 25, 1860, and proved possession with payment of taxes for more than seven years.

Thomas F. Tipton, Judge, presiding. This was a bill in chancery, filed by Edwin Hoyt, praying that a tax deed to certain vacant and unoccupied lands, executed in the year 1864, of which he tvas the owner in fee, procured by Francis A. Packard, be set aside as invalid, the same constituting a cloud on his title, and that a deed from Packard to Francis Barnard be canceled.

Charles Turner, Judge, presiding. This was a suit in ejectment, brought by Witham against Brooner. It appears that Summers and wife made a deed to the land in question to Thomas Hallowbush, “in trust for White and Smith forever”—being a naked trust, imposing ho duties, payment of debts nor taxes, control or otherwise upon the trustee. Smith and wife, afterwards, without the agency or concurrence of Hallowbush, trustee, sold by deed to Witham.

Joseph Gillespie, Judge, presiding. On January 6th, 1866, George W. Patterson and wife executed their mortgage upon certain lands to Benjamin Brown to secure the note of Patterson given for purchase money. Subsequently James Patterson filed his petition in the circuit court to enforce his mechanic’s lien upon the lands for improvements made. The prior mortgage lien of Brown is set out in his petition, and Brown made a party, but did not appear on the trial.

<p>1. School trustees—as to establishing districts. The manner of laying off their township into districts is left by the law to the sound discretion, good judgment, and common sense of the trustees elected for that purpose, and when honestly exercised, a court of equity has no power to su. pervise their action.</p> <p>2. As to the exercise of discretionary power. If there be flagrant abuse of discretionary power, or corrupt conduct, tending to palpable inconvenience and oppression, equity will interpose to afford the requisite relief.</p> <p>3. District schools—unreasonable rides. What are reasonable rules, is a question of law. A rule barring the doors of school houses against little children coming from great distances, in the winter, for being a few minutes tardy, is unreasonable and unlawful, and, in its nractical operation, little less than wanton cruelty.</p>

John A. McClebnand, Judge, presiding. ■ This was an action brought by Stover against the railroad company, to recover the value of certain wood alleged to have been sold and delivered by the plaintiff to the defendant. A trial by jury resulted in a verdict and judgment in favor of the plaintiff, and to reverse this judgment, the defendant appeals.

<p>1. Swamp lands—effect of acts granting. The act of congress of Sept. 20,1850, granting swamp and overflowed lands to the States in which they lie, does not create a title in presentí, the fee simple remaining in the United States until patent is issued. The laws of March 2, 1855, and March 3,1857, show such to be the clear intention of congress.</p> <p>2. Right of entiiy. The right of private entry continued until the actual issue of patent to the State, notwithstanding the land in controversy had been reported and confirmed as swamp land enuring to the State.</p> <p>3. Conflicting patents. The oldest patent carries the title in fee simple, and leaves nothing upon'which the second patent can operate.</p> <p>4. Cancellation. It follows that the commissioner of the general land office had not the power to order the cancellation of the prior patent.</p> <p>5. A third party can not, in a collateral issue, attack the validity of a patent properly issued.</p>

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

<p>1. Vendor’s lien—waiver by taking security. Where a party holding bonds for deeds to six 40-acre tracts of land, sold the land and received payment for four of the tracts, and the purchaser gave security for the payment of the purchase money of the two remaining tracts by leaving the title bonds with the agent of the vendor, by which the latter remained in control of the title: Held, that the vendor could not maintain a bill to enforce a lien for the purchase money, as he hacl waived his lien by taking the security,</p> <p>2. Same—lost by vendor's aet of repudiation. The complainant, being the holder of six bonds, each for the conveyance of 40 acres of land, situate in a body, sold the same, the purchaser to assume the payment of the purchase money due on the bonds, and to pay complainant the balance of the price agreed upon. The purchaser paid all he had agreed to pay on the four south 40s except thirty-two dollars, which was added to the price of the two north 40s. The agent of complainant on two occasions made out notes for the purchaser to sign for the balance due, which was refused on the ground that the sum was too large and the interest therein provided was not in accordance with the contract, the purchaser otherwise never having refused to perform his contract of purchase, which was a verbal one. The purchaser had also left with the complainant’s agent two of the title bonds as a security for the payment of the remaining purchase money. The circuit court dismissed complainant’s bill to enforce a vendor’s lien on the whole premises: Held, that the decree was proper; that as to the four tracts the bill would not lie, as the purchase money was paid, and as to the other tracts, the complainant having repudiated the contract himself by requiring notes different from the agreement, he was not entitled to maintain the bill.</p>

<p>This proceeding was to obtain a mandamus against the board of supervisors of Logan county to compel the board to subscribe $100,000 to the capital stock of the relator. To the alternative writ the defendants made a return, to which the relator filed a demurrer. The facts necessary to an understanding of the case will be found in the opinion.</p>

Charles D. Hodges, Judge, presiding. The summons in this case was in trespass, laying the damages at $3000.

Thos. F. Tipton, Judge, presiding. This was a suit in chancery to foreclose a mortgage. On the back of the summons was this writing: “I hereby acknowledge service of the within summons, and authorize Messrs. Moore & Warner to enter my appearance in the within case. Springfield, III., Sept. 9, 1871. C. D. Harvey, assignee for Henry Tyler.” The signature of Harvey was proved in court, and Messrs.

C. L. Higbee, Judge, presiding. This was an application by the relator for a mandamus against appellee, supervisor of the toivn of Akron, in the county of Peoria, to compel him to execute and deliver $27,000 of the bonds of his town to the relator. The facts bearing on the points discussed appear in the opinion.

<p>Pbokissoby note—estoppel to deny signature. In a suit upon a promissory note, one of the makers, by his plea, verified by affidavit, denied the execution of the note by him. The proof showed that, by his admissions and declarations, the note was “all right,” and that if the plaintiff would “hold still” lie would pay him, he knowingly and designedly induced the plaintiff to omit taking measures to collect the same of the other maker when he was solvent, until after he left the country: Held, that, by these acts and assurances he was estopped from denying the fact of his execution of the note</p>

Chauncey L. Higbee, Judge, presiding. This was a bill in chancery, by George Davis, in the circuit court of Knox county, against the board of supervisors of Knox county, and others, to impeach the election returns and purge the poll-books of illegal votes cast at an election for the removal of the county seat of Knox county.

<p>Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p> <p>This was an action of assumpsit by the appellant against the appellee, upon a promissory note of $217.10.</p> <p>The facts showed that appellee applied to appellant for a loan of $400 of school money, appellant being treasurer of the township, and that not then having that amount on hand, he loaned appellee $217.10, and took the note in controversy. It was contended by appellee that afterwards the appellant, having received enough school money to make up the $400, took appellee’s note, payable to himself as treasurer, for the latter sum, and paid appellee the balance of $182.90 to make up the $400, and promised to give up or destroy the note sued on.</p> <p>The question submitted to the jury was, whether the first note was paid by giving the note of $400 and receiving the $182.90.</p> <p>It further appeared that, after this, appellee borrowed of appellant several other sums of money, for which he gave his notes. About two years after the date of the note sued on, appellee wrote to appellant, directing him to present the notes he held against appellee at the Howes bank, and they would be paid. Appellant accordingly presented the subsequent notes and they were paid, but he did not present the note sued on, or write to appellee anything about it, although it was nearly three years overdue. The appellant was notified to produce this letter, which he failed to do, claiming that it was lost. One of the errors assigned was, that the court erred in permitting appellee to prove the directions contained in this letter, because it was not a part of a correspondence, and was not answered.</p> <p>The jury found the issues for the defendant below.</p>

Silas L. Bryan, Judge, presiding. This wás an action of ejectment, by the appellees against appellants. The facts bearing upon the question discussed are stated in the opinion of the court.

<p>1. Parties—married women—whether should sue alone. Since the act of 1861, in a suit to recover rent under a lease executed by a married woman on her own separate property, it is error to join her husband as plaintiff in the action.</p> <p>3. Landlord and tenant—of an motion of the latter by the former from a portion of the demised premises—whether will release the tenant from the payment of rent. Where a lessee is, by his lessor, wrongfully evicted from a portion of the demised premises, he is thereby excused from the payment of any of the rent, although he remains in possession of the remaining portion of the premises to the end of the term.</p> <p>3. But, to constitute an eviction, there must be more than a mere trespass by the landlord. There must be something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the premises—the question of eviction or no eviction depending upon the circumstances, and being a matter for the jury to decide.</p> <p>4. Some acts of interference by the landlord with the tenant’s enjoyment of the premises may be mere acts of trespass, or may amount to an eviction, the question whether they partake of the latter character depending upon the intention with which they are done—if clearly indicating an intention on the landlord’s part that the tenant should no longer continue to hold the premises, they would constitute an eviction.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. James Steele, Judge, presiding.</p>

Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding. This was a suit brought by Bonner against Gordon and others, on the following promissory note : Centralia, III., June 30th, 1867.

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

<p>1. Highway—damages to owner of land taken—new trial. On the trial for the assessment of damages to the owner of land proposed to be taken for a road, it appeared that the road was of no benefit to the owner; that it took about forty-four hundredths of an acre of his land, which was worth $100 per acre; and that the establishment of the road made it necessary for him to expend $140 or more in building a fence, besides the burden of annual repairs. The jury assessed his damages at $40: Held, that the court erred in not granting a new trial, the verdict being against the preponderance of the evidence.</p> <p>3. Appeal or writ op error—in what eases it lies. Under the present constitutional provisions, an appeal or writ pf error will lie from the judgment of the circuit court in refusing to grant a new trial on the assessment of damages caused by the laying out of a highway, and such proceedings may be reviewed by this court.</p> <p>3. Same—right secured by constitution. Under sections 3 and 8 of article 6 of the constitution of 1870, the right of parties to an appeal or writ of error to this court is made a constitutional right, and must be allowed when claimed.</p>

<p>1. Pleading—of the averment, as to the ownership of the property alleged to have been stolen, in an indictment for larceny. The rule is, that property vested in a body of persons ought not to be laid, in an indictment charging a party with the larceny of the same, as the property of that body, unless such body is incorporated, but should be described as belonging to the individuals composing the company.</p> <p>2. So where, in an indictment for larceny, it was charged that the property alleged to have been stolen >vas the property of the “American Merchants’ Union Express Company,” in the absence of an averment that such company was a corporation, it was held, that the ownership of the property was defectively stated, and the overruling of defendant’s motion, to quash the indictment on that ground, was fatal to the judgment.</p>

<p>1. Nuncupative wills—construction of the statute in regard to what constitutes a compliance therewith. A literal compliance with the statute in regard to nuncupative wills, will not be required in every instance; but the law, in no case, will dispense with a substantial compliance in order to the validity of such wills.</p> <p>3. It is not necessary that the testator should have used the exact words of the statute, but any words that express a clear intention to give the estate to a certain person, will be sufficient to pass the property.</p> <p>8. Nor is it necessary that the testator should call upon persons present, by name, to become witnesses to his will. Any form of expression, however imperfectly uttered, so that it conveys to the minds of those to whom it is addressed the idea that he desires them or some of them to bear witness to the disposition he is making of his property, will be deemed a compliance with the statute in that regard,</p>

<p>1. Parties to an action—whether they may appear both as plaintiffs and defendants. The rule that a party can not be both plaintiff and defendant in an action—that it is an answer to an action, that a party is legally interested on each side of the question—will operate, although the party appears on one side in his personal and on the other in his official character.</p> <p>2. A instituted a suit in chancery against B and obtained an injunction, giving to B his bond with security. Subsequently A, averring that he was the assignee of B in bankruptcy, brought an action of debt on the bond against himself and surety for the use of 0, and upon default of the defendants, the plaintiffs’ damages were assessed at $50. The declaration was regarded as insufficient to sustain the judgment rendered in the cause, for the reason that A appeared both as plaintiff and defendant.</p>

<p>1. Fees oe shekiees provided by special laws—how affected by the constitution of 1870. The law of I860, regulating the compensation of sheriffs in certain counties, is expressly repealed by the latter clause of section 11 of article 10 of the constitution of 1870, which provides that “ ail fees established by special laws shall cease on the adoption of this constitution.” For services rendered after the adoption of the constitution, officers were remitted to the general laws.</p> <p>2. Upon it being contended that section 11 had application only to officers elected after the constitution went into effect, it was held, although the first part of the section must be so applied, yet the language in the beginning of the latter clause—“ the compensation herein provided for shall apply only to officers hereafter elected”—has reference to the compensation mentioned in section 10 of the same article.</p> <p>3. Keeper of jail—whether may recover the fees of (he sheriff. The mere keeper of a jail can not recover of the county the fees of the sheriff, for keeping, dieting and discharging prisoners.</p>

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

Writ of Error to the Circuit Court of Wayne county; the Hon. James M. Pollock, Judge, presiding. This was a bill for partition of certain lands in Wayne county. The commissioners appointed having reported that the lands could not be divided, and appraised the same, the court ordered the sale of the lands, which was had.

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

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

This suit was brought by Henry Molloy against Elias Hibbard as the surviving partner. of L. N. Nutz, to recover the price of a quantity of coal claimed to have been delivered by the plaintiff to the firm of Hibbard & Nutz during the lifetime of Nutz. A trial in the court below resulted in a verdict and judgment for the plaintiff. The defendant appeals.

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was a suit brought by Jones against the railroad company to recover the value of a horse alleged to have been killed on the defendant’s road through the negligence of the company. The case was submitted to the circuit court upon the following agreed state of facts : 1.

<p>1. Chancery jurisdiction—relief against judgment at law.- Chancery will not relieve against a judgment at law on the ground of its being contrary to equity, unless the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defense, or-unless he was prevented from availing himself of the defense by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on Ms part.</p> <p>3. Same—accident■—negligence. On bill to set aside a judgment at law, and for a new trial, on the ground that the defendant had a defense to all except nominal damages, and was prevented from making the defense on the ground of accident, it appeared that the party, at the time of the rendition of the judgment, was necessarily absent at another court, and there prepared an affidavit for a continuance, which he sent to his attorney, but that the clerk omitted, by accident, to attach his seal to the jurat, so that the same could not be used: Held, that the bill was deficient in not showing with distinctness that the complainant had employed an attorney to appear for him in the case, and in failing to show that any motion tvas made for a continuance, or that any pleas were filed in the case. It failed to show that complainant had used due diligence in trying to prevent the recovery.</p>

<p>1. Nuncupative will—whether personalty devised thereby is subject to the payment of debts. A testator, by a nuncupative will, which was reduced to writing and probated as required by the statute, bequeathed his personal property to a person named. The deceased died seized of unincumbered real estate sufficient to pay his debts, of which he made no devise: Held, that the legatee in the will took the personalty as an absolute conveyance discharged from the payment of the debts. Where there is a bequest of the personalty, and realty remains, of which there is no devise, creditors of the estate must first resort to such realty.</p> <p>3. Jurisdiction in chancery—-defense at law. The legatee in the will was duty appointed executrix by the proper court, and executed bond with security, which was approved, and she took possession of the personal property. Afterwards, her letters were revoked, and an administrator de bonis non was appointed, who brought suit on the bond of the executrix. The surety on the bond filed a bill in chancery to restrain the prosecution of the suit: Held, that the bill could not be maintained, as the defense was good at law- The act of the executrix in taking possession of the personalty, and using it as her own, could not be deemed in law a devastavit, so as to authorize a suit on the bond. Her neglect to sell the property and apply the proceeds to the payment of debts—the same being vested in her by the will, and there'being sufficient realty not charged with any legacy to pay the debts—could not be construed ijito mismanagement or waste of the estate.</p>

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

Writ of Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding. This case was in this court at the January term, 1871, and is reported 58 Ill. 21.

<p>1. Recognizance—;forfeiture of It has been held that, under our statute, the forfeiture of a recognizance may be taken at a term of court subsequent to that at which the prisoner is recognized to appear.</p> <p>2. Same—variance in the name of the principal in the body of the recognizance, and as signed by him—pleadings and proofs in that regard. In a proceeding by sciA'e facias on a forfeited recognizance, the objection that the condition of the recognizance provided for the appearance of “A. M. Stokes,” while the instrument was signed by “Wesley 31. Stokes,” is obviated by the averment and proof that Wesley M. Stokes was described in the recognizance, through mistake, as A. M. Stokes, and■ that the true intent and meaning of the recognizance was to secure the appearance of Wesley M. Stokes.</p> <p>3. Same—when execution may be awarded. It was held, in the case of Wheeler v. The People, 39 Ill. 430, that, on a scire facias upon a joint and several recognizance, where service is had on one or more of the cognizors, and a simple return of nihil as to the rest, execution may be awarded against those served with process. But that case does not go to the extent of authorizing the award of execution without service, nor is there any warrant for such a judgment until there is service or two nihils as to those against whom judgment is rendered.</p>

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

<p>1. Placita—necessity thereof. Where the record in the court below, as shown by the transcript filed in this court, contains no placita or convening order of the court, so that it does not appear from the transcript before what judge the cause was tried, or whether it was in fact heard before the judge who appears to have signed the bill of exceptions, such defect in the transcript is ground for reversal.</p> <p>2. Same—absence of, in the transcript, how may be supplied. The attestation of the clerk imports verity, and, the transcript being certified to this court as being complete, if it was incomplete the appellee should have obtained leave and caused a perfect record to be filed. His omission to do so is fatal.</p>

<p>Widow—election to take other property in lien of specific articles allowed her. In this case the specific property given by statute to the widow of a deceased person was regularly appraised, together with the other property of the estate, and she executed a written relinquishment as to such allowance and elected to take other property, equal in value thereto, at its appraised value, which she received. After the sale of the property relinquished she sued the administrator for a larger allowance, and recovered: Held] that there was no basis in law for the recovery, the proceedings under which the personal property was set apart to the widow being regular, and the evidence failing to impeach the conduct of the appraisers or administrator for fraud, and thatshe was concluded by her election.</p>

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

<p>1. Infants—should he served with process. In order that a decree shall affect infant defendants, they must be served with process.</p> <p>3. Same—what necessary to support a decree against. To support a decree against infants, the material allegations of the bill must appear to have been proven, either by the finding of the court in the decree or by evidence preserved in the record.</p> <p>8. Solicitor’s fee taxed as costs. In a suit for partition a decree was entered directing a sale of the land, and that the commissioner pay the solicitor’s fee, and the report of the commissioner of the payment of such fee was approved. The decree and order of approval were made prior to the act of 1869 allowing the taxation of solicitors’ fees in such cases, and was erroneous.</p>

<p>Circuit judges of Cook county—salaries of, urider the constitution of 1870. The circuit judges of Cook county elected under the constitution of 1870 were entitled to receive from the State, until the adjournment of the first session, of the general assembly after the adoption of such constitution, a salary of $1000 per annum, only, as provided h}' the constitution of 1848.</p>

<p>1. Indictment—construction of the statute requiring the names of witnesses to he indorsed on the same. On a motion to quash an indictment for murder on the ground that the names of the witnesses were not indorsed on the hack of the instrument, it appeared that the names of the witnesses were indorsed on the indictment, just under the name of the prosecuting attorney: Held, that this was a strict compliance with the statute requiring the foreman of the grand jury to note on the indictment the names of the witnesses upon whose evidence the same was found. The purpose of the requirement is notice to the accused, and that is as well given by writing the names of the witnesses on one part of the paper on which the indictment is drawn as on another.</p> <p>2. The names of the witnesses, on whose evidence the indictment was found, thus noted on the indictment, being legal and proper, formed a sufficient basis for the examination, on the trial, of others whose.names were not written on the' indictment.</p> <p>3. Dying declarations—what constitute. Dying declarations are such as are made by the party, relating to the facts of the injury of which he afterwards dies, under the fixed belief and moral conviction that his death is impending and certain to follow almost immediately, without opportunity for repentance, and in the absence of all hope of avoidance; when he has despaired of life and looks to death as inevitable and at hand.</p> <p>4. Same—of the foundation necessary for thei/r admission as evidence. In this case, the deceased having been informed by his physician that he was in a critical condition, and he having previously said that he was “killed,” and was “ dying,” and he died from the wounds some four or five hours after they were inflicted, which statements of the deceased, with all the surrounding circumstances, indicated that he was fully aware of his condition, the declarations of the deceased were held admissible as evidence against the accused.</p> <p>5. Same—of the objection to them that they a/re indefinite or not pertinent to the issue—how should he taken advantage of. The proper foundation for detailing the dying declarations of the deceased to the jury having thus been laid, the defense, in order to take advantage of the objection to them that they were indefinite or not pertinent to the issue, should have moved to exclude them from the consideration of the jury.</p> <p>6. Alterations in the transcript—whether they will he recognized. Where alterations in the transcript of a record are noted in the margin thereof, and apparently in a different handwriting and in different ink, in the absence of some explanation, or statement of the clerk that he made such alterations, this court will refuse to recognize them. Where such changes are found on the transcript, to secure their recognition there must be evidence that they were properly made.</p>

Silas L. Bryan, Judge, presiding. This was an action of trover, brought by the appellee in her representative capacity as administratrix of the estate of Absalom Harmon, deceased, against appellant, for the conversion of certain articles of personal property alleged to have belonged to the deceased.

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

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

David J. Baker, Judge, presiding. This was an action upon a contract against two defendants, both of whom were served with process. The irregularity in the judgment is set forth in the opinion of the court.

Silas L. Bryan, Judge, presiding. This was a trial of the right of property, instituted by Caroline Vogt. It appears that C. L. .Buschman and others, having obtained a judgment against the husband of the claimant, caused an execution to be issued thereon, and levied on the property in dispute, which she claims as her own separate property.

<p>Bill of exceptions. In this case the only assignment of error relied upon was the decision of the court below overruling a motion to set aside the judgment and grant a new trial, but there being no bill of exceptions preserving'such motion and the affidavits on which it was based, this court could not review such decision.</p>

<p>1. Appeals—whether will lie. An appeal will lie to this court from the judgment of a circuit court condemning land for the right of way of a railroad under the act of 1852. The right of a party in such case to have the decision of the circuit court reviewed by this court is a constitutional right, conferred by that clause in the constitution defining the jurisdiction of the supreme court.</p> <p>2. Jtmo'K-—refusal of the court to exclude from the panel—whether ground, for a new trial. Where a party objected to a juror for the reason that he was on the regular panel, and was called to serve without his name being drawn by lot, but the court refused to exclude him, upon appeal it was held, admitting such to be an irregularity, yet, as the party, so far as disclosed by the record, had not used any of his peremptory challenges when the panel was complete, and he might in that mode have excluded the juror from the box without prejudice to himself, it was not ground for a new trial, though it might have been so considered if the party had had occasion .to use his peremptory challenges before the panel was complete for the purpose of excluding other jurors.</p> <p>3. Execution—whether may be awarded. In a proceeding to condemn land for the right of way of a railroad under the act of 1853, it is error to award execution against the company for the damages assessed.</p>

<p>Official bond of constable—whether more than one judgment may he recovered. The rule that there can be but one action on the official bond of a constable, and that other parties aggrieved must sue out a scire facias and assign new breaches, does not apply so as to affect such a suit brought before judgment rendered in the action previous!}' commenced, and in such case, notwithstanding judgment in the suit originally brought has after-wards been rendered, the second suit may be prosecuted to judgment the same as though no judgment had yet been recovered on the bond. Parties aggrieved are not bound to wait to see whether other parties who have already brought suit will obtain judgment.</p>

<p>Sheriffs—compensation of, for conveying insane paupers to the insane asylum—construction of the statute in that regard. Under the twelfth and thirteenth sections of chapter fifty, Cross’ Statutes, providing that counties shall pay the expense of conveying insane paupers to the asylum for the insane, and fixing the compensation of the sheriff for such services, the sheriff is not allowed to charge for his necessary expenses anything in addition to the mileage and per diem provided by the statute.</p>

James M. Pollock, Judge, presiding. This was a suit brought by William Dodds, in his lifetime, against the board of supervisors of Jefferson county, to recover fees for services performed by him as county clerk of said county. Before judgment he died, and upon suggestion of his death, the appellees, who were executors of his last will and testament, were substituted as plaintiffs in his stead.

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

<p>1. Motion—necessity of till of exceptions. In order that this court may review the action of the court below overruling a motion to set aside a default, the motion, with the affidavits in support thereof, must be preserved in the record by incorporation in a bill of exceptions, signed by the judge and properly certified by the clerk.</p> <p>2. The insertion of such affidavits as a part of the record, by the clerk, does not entitle them to any consideration.</p>

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

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

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

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