Volume 66 — Illinois Reports

<p>Injunction—bill by trustees of church to restrain pastor'from, officiating in pulpit. Upon bill in chancery, by the trustees of an independent church organization, to restrain their pastor from longer officiating as such, it appeared that the church had no connection with any religious denomination, but was governed by its own rules and customs. One of the customs of the church and society was to elect a pastor every year. In this way, the defendant was elected in 1868,1869 and 1870, and again in 1871, and he accepted. After the last election, the church session and the church trustees decided not to retain him, but he declined to leave, the trustees claiming that they had the sole power to employ a pastor. They, however, failed to establish this claim: Held, that the facts and circumstances were not such as to justify the interference of a court of equity, it appearing that he remained in obedience to the vote of a majority of the society, whose wishes, according to the usages of the-church, should control.</p>

S. D. Puterbaugh, Judge, presiding. This was an action of ejectment, brought in the circuit court of Stark county, for the recovery of the sw. qr. of sec. 32, T. 13, N., E.. 7, E., and taken by change of venue to the circuit court of Peoria county.

William A. Pouter, Judge, presiding. This was an action of assumpsit, by the appellees against the appellants, upon the following contract: “ This memorandum of an agreement made this 14th day of August, 1871, by and between the firm of Roddin & Hamilton, of Chicago, Illinois, and the firm of Shurley, Parks & Co., of the same place, witnesseth, that said first party have, in consideration of the payments to be made and the cash payment this day made, as hereinafter provided,…

<p>1. Sufficiency of pboof to set aside deed, on, ground of undue influence. On bill to set aside a deed made by an aged person, in the nature of a testamentary disposition, on the ground of undue influence and want of sufficient mental capacity, the proof failed to show that any one made any suggestions to the grantor as to what disposition should be made of the property, or that he did not, of his own volition, select the persons who should be the recipients of his bounty, and the several persons charged with having influenced his action denied, under oath, that they ever advised him to make such disposition of his property, and this was not overcome by any evidence in the record: Held, that the charge of undue influence was not sustained by the proof.</p> <p>2. Mental capacity to make a disposition of property. Where a deed, made by a party in the nature of a testamentary disposition, giving the bulk of his remaining property to his four daughters after his death, was sought to be set aside by a portion of his heirs, on the ground that his mind had become impaired by reason of his advanced age and by the use of intoxicating liquors, it appeared, from the evidence, that the deed was made at the age of seventy-six years, just on the eve of his second marriage, and that at that time his memory only was somewhat impaired, but that he still possessed a sound, practical judgment in business matters; and it further appeared that he had exhibited judgment in making the disposition of his property, by reserving to himself the absolute control of the same during his life, and that he had previously given his other children property, while the four daughters had got but little, so that the disposition was not very unequal; and it further appeared that he was then a vigorous man for his age, and that the disposition was not made from any sudden impulse, but in pursuance of a purpose formed to that effect many years before: Held, that the facts would not justify a decree setting aside the deed.</p> <p>3. In order to justify the setting aside of a deed where no undue influence is shown, on the ground of mental incapacity from age, it must be shown that the grantor was affected with such a degree of mental weakness as to render him incapable of understanding and protecting his own interests. The circumstance that his mental powers had been somewhat impaired by age, is not sufficient, if he still retained a full comprehension of the meaning, design and effect of his acts.</p>

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

Luther Lowell, Judge, presiding. This was a suit originally brought by the appellee against the appellant, before a justice of the peace, to recover the balance due on the price of two horses sold, and taken by appeal to the county court, where a trial was had resulting in a verdict and judgment for the plaintiff for $36. The evidence showed that the plaintiff sold the defendant two horses for $300, of which sum $200 was paid at the time.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. Samuel S. Eichmond, Judge, presiding.</p> <p>This was a bill in chancery, by appellant against appellees, to set aside a judgment at law, on the ground that the note upon which it was based was given for money bet on the result of an election. The bill also sought to enforce an alleged agreement extending the time for redeeming the land sold under the judgment. The court below dismissed the bill.</p>

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

<p>False impbisoshent. Where A procured B to assume the office of constable and arrest a boy on a charge of breaking a glass in his showcase, and the boy was carried before C, who falsely assumed to act as justice of the peace, when the form of a trial was gone through, the hoy being refused the privilege of seeing an attorney, and judgment was rendered against him for three dollars, and the parties then threatened him with imprisonment in the county jail unless he could get two good men to become surety for him, which he finally procured, and was then released, after having been detained about two hours: Held, that the facts fully warranted the jury in finding the defendants guilty, in an action by the boy for trespass and false imprisonment, and assessing the damages at §125.</p>

<p>1. Trespass de bonis asportatis—right to maintain action. In order to ■ maintain trespass for taking and carrying away personal property, the plaintiff must be the owner of the property, or in possession, at the time of the alleged trespass. The mere fact that he had a lien upon the property as landlord for rent due, will not enable him to maintain the action; neither will the levy of a distress warrant by him upon the property, where no sale is shown, and it does not appear to have been in his actual possession.</p> <p>2. Tax—who may question legality of. Where the plaintiff sued a tax collector in trespass for levying upon personal property for the taxes of a third person, and the plaintiff set up that a portion of the taxes were illegal : Held, that the legality of the taxes was not a material question in the case, as, if the property belonged to the plaintiff, it mattered not whether the tax was legally or illegally assessed.</p> <p>3. New trial—conflict of evidence. Where the evidence in a cause as to a point in issue, is conflicting and irreconcilable, and the case has been fairly submitted to the jury, this court will regard the verdict as settling the controverted facts. It is the province of the jury to weigh such evidence.</p>

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

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

This was a petition by the appellee for dower in a tract of land which formerly belonged to her husband, James S. Simpson. It appears, from an agreed statement of facts, that James S. Simpson and Buradella G., his wife, on the 15th day of September, 1858, executed a warranty deed for the premises in which the dower was sought, to one Aaron Barlow. The following is a copy of the certificate of the acknowledgment of the same: “ State of Illinois, Putnam County.

This was an application to this court for a writ of mandamus, the object of which is set forth in the opinion of the court.

William Brown, Judge, presiding. This was an action of assumpsit, by the appellant, to recover fees and compensation for services performed by him and his deputies as sheriff of Winnebago county.

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

<p>1. Change oe venue—improper change waived by going to trial without objection. It was assigned as error that the court improperly granted a change of venue in a civil case on the third application of the plaintiff, after two previous applications by him had been overruled, but it was held, that the defendant, by going to trial in the court to which the cause was sent,without objection, waived the irregularity and error, if there was any.</p> <p>2. Same—how to take advantage of wror in granting change. Where a change of venue is improperly granted, the proper practice for the party complaining is, to move to remand the cause to the county from which it was sent, and if his motion is overruled, take an exception, and embody "the motion and ruling of the court in a bill of exceptions.</p> <p>3. Imprisonment—justifying under order of county court. Where a parly procures the commitment of another to the common jail, under ah order of the county court, if the court has jurisdiction to order the commitment, all parties acting under such order, however irregular it may be, may justify under it, when sued in trespass, but if there is a want of jurisdiction, then all persons who assisted in procuring the illegal arrest will be liable in trespass for the damages sustained by -the person so imprisoned.</p> <p>4. Power of county court to imprison—refusal of administratrix to pay claim allowed. Where the county court ordered an administratrix to pay a claim allowed against the estate she represented, within thirty days, which -she and her husband refused to do, he having the assets in his hands, it was held that the court had no power or jurisdiction to order the imprisonment of the husband for non-compliance with its previous order, as he was not a party to such order. And it makes no difference, in this respect, that he was present when the order was made against his wife, and was pecuniarily liable in a proper proceeding against him.</p> <p>5. Administrator—imprisonment for neglect to pa/y over money on order of cowrt—demand. Where the county court ordered an administratrix to pay a certain claim which had been allowed, within thirty days, and a demand of payment was, made on the same day: Reid, that the administratrix could not be in default until the expiration of the thirty days, and that any demand of payment before that time was an absolute nullity, and could not form the basis for a subsequent order of commitment for a refusal to pay over the money due the creditor.</p> <p>6. In such a case, in order to give the county court jurisdiction to make an order of commitment, the creditor should make his demand after the time limited in the order of payment, and even then the court could not act until thirty days after such demand.</p> <p>7. Trespass to person—relevancy of evidence. On the trial of an action of trespass for the illegal arrest of the plaintiff under a void order of the county court, for refusal to pay a claim allowed against an estate, the court permitted the plaintiff to read in evidence the original note which had been merged into a judgment against the estate, and which had been claimed to be a forgery, and also other notes, against defendant’s objection : Reid, that the evidence was wholly irrelevant and that it was error to admit it.</p> <p>8. Same—evidence in mitigation of exemplary damages. Where the plaintiff sues in trespass for an illegal arrest, the facts and circumstances which led to the procuring of the arrest, showing misconduct and fraud on the part of the plaintiff, are admissible in evidence on the part of the defendant, not in bar of the action, but as proper to be considered by the jury in mitigation of vindictive or exemplary damages.</p> <p>9. Damages, excessive—in trespass for false impo’isotimmt. Where the plaintiff was arrested and imprisoned under an order of the county court procured hy the defendant in the utmost good faith and without any malicious motive, in endeavoring to enforce the payment of a claim in defendant’s favor allowed against an estate, which order was void for want of jurisdiction in the court to make it, and the proof showed that the conduct of the plaintiff was highly improper and fraudulent, and proceeded from a corrupt motive to prevent the ultimate payment of defendant’s claim, the jury assessed the plaintiff’s damages at §4000, which was reduced hy a remittitur to §2000: Reid, that the damages, even as reduced, were excessive.</p>

<p>Contract—exchange of articles—demand, when necessary. Where the plaintiff exchanged a printing press with the defendant for a smaller one, and a safe valued at §300, and there was no time specified for the delivery of the safe, and the plaintiff was to take it at defendant’s place of business where it was kept, it was held, that the plaintiff could not recover the amount payable in such safe, without specifically demanding it of the defendant. Until demand, the defendant could not be in default for not tendering it.</p>

Charles H. Gilman, Judge, presiding. This was a bill in chancery, filed September 21,1871, by the appellants, tax-payers and residents of the township of Bruce, in LaSalle county, to restrain the appellee from making a subscription of §15,000 to the capital stock of the Fairbury, Pontiac and Northwestern Bail road Company, and from executing and delivering to the company the bonds of the township.

<p>Appeal from the Circuit Court of Livingston county; the Hon. Charles K. Starr, Judge, presiding.</p>

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

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

Writ of error to the Criminal Court of Cook county; the Hon. William W. Farwell, Judge, presiding. This was an indictment against the plaintiff in error and one George Harris for a rape upon the person of one Jane Smith. They were indicted jointly, as principals. A trial was had against both defendants, which resulted in a verdict, finding both guilty of an assault with intent to commit rape, and fixing the term of their imprisonment in the penitentiary at one year.

<p>Divorce—whether insanity a ecmse for. Insanity after marriage is not a ground for divorce.</p>

<p>1. Constable’s bond—neglect to levy and return executions. In an action upon a constable’s.bond for a neglect to levy an execution placed in liis hands, or for a failure to return the same within ten days after its proper return day, the plaintiff must produce the execution in evidence, or prove its contents after preliminary proof of loss or inability to obtain it, to entitle himself to a recovery.</p> <p>2. Same—a valid writ necessary to ctuwge officer for breach of duty. If an execution delivered to a constable is void, he is not bound to obey it, and he will have no right to levy upon property or make any return, and hence there can be no neglect of official duty in the failure to serve and return the writ, unless the same is shown to have been valid.</p>

William W. Fabwell, Judge, presiding. This was an action of ejectment, by the appellees against the appellant, to recover certain real estate in the city of Chicago, describing themselves in the declaration as the next of kin to the mother of the purchaser, Theodore Bogers.

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

<p>1. Contract—where parties furnish stock in an adventure, the profits to he divided and the stock to he returned, whether it means a peturn of the identical articles. Where the owner of a farm let the same, with various descriptions of other property, and the tenants were to furnish property of the same description, all of which they were to feed from the products of the farm, and care for, and at the end of the year they were to divide the sales of the proceeds of the farm and stock in a certain proportion, and the ■tenants were then to “draw out the same property they put in,” and return to the landlord the “stock, tools, hay and grain belonging” to him, keeping the tools in repair: Held, that the true construction of the contract was not that the tenants should return the identical articles they received, but a part only in kind; that tools and work horses from which there could be no natural increase, were to be returned in kind, and that, as to the stock, such as hogs, calves, chickens, etc., from which profits were expected to be realized, the tenants were to return stock of the same kind and description, of value equivalent to what they received.</p> <p>2. Appeal to Supreme Court—right to dismiss waived hy joinder in error. After the appellee has joined in error on appeal to this court, it will be too late to urge grounds for dismissing the appeal.</p> <p>3. Injunction—dismissal of hill asking for other relief on filing of answer. On bill for an injunction and for an account between partners m an adventure, the circuit court, upon the answer of the defendants, dissolved the injunction and dismissed the bill: Held, that the court erred in dismissing the bill on the answer; it should have been retained for the purpose of stating the account.</p>

<p>1. Decree pro coheesso—discretion of the court in requiring evidence. A party against whom a bill has been taken for confessed, can not assign as error that the proof does not sustain the allegations of the bill, it being a matter of discretion with the court whether it will require evidence to be produced.</p> <p>2. Judicial sales of land—when may be made era masse. When an officer charged with the sale of land under a decree of court, offers the premises in separate parcels and receives no bids, it is not error to then proceed to sell the same era masse.</p> <p>3. Error—by whom assignable. Parties against whom a decree was rendered sought to reverse the decree in toto, on the ground that there was error committed in rendering a decree against a co-defendant on whom there had been no service and for whom there was no appearance. The decree was not jointly against such person and the plaintiffs in error, and she was not bound with them to perform it, and the only interest she could have in the land in controversy, was a contingent dower interest: Held, that, under our practice, any error that might appear as to such person could not be taken advantage of by the plaintiffs in error.</p>

<p>1. Sale—when complete so as to pass the title. As between vendor and vendee, the title to personal property passes without any delivery whenever the sale is completed; and an agreement to sell an article by weight, when the article is identified or separated from other like articles, and the price is agreed upon between the parties, will be a complete sale, if the parties intended it as such, although the article has not been weighed. Whether a sale is complete so as to pass the title, is a question of fact for the jury.</p> <p>2. Pleamku—when necessa/ry to declare specially. In a suit to recover damages for the non-delivery of goods under an executory contract to sell, or for the non-delivery of goods bargained and sold, no recovery can be had upon the common counts.</p> <p>3. Pleading and evidence—count for goods sold. Special counts alleging that goods were bargained and sold can not be supported, unless there has been an actual sale of the goods, and unless the property in them has become vested in the purchaser.</p> <p>4. Instructions—must not submit a different state of fact from that stated in pleading. Where the plaintiff declares upon a completed sale, it is erroneous for the court, in instructing for him, to submit to the jury the question of an executory contract of sale, especially where there is no evidence tending to prove the latter.</p> <p>5. Sale—accidental destruction before delivery—when an excuse for nondelivery. Where the defendants sold the plaintiffs their entire lot of butter at fourteen cents per pound, the terms of the sale being that, immediately upon the closing of the bargain, the buy'ers were to take at the store of the sellers and pay for 100 firkins, and pay as earnest money §2 for each of the remaining firkins, which they were to take at the sellers’ store and pay the balance of the price within thirty days; and where they took and paid for at the time 125, and soon after 16, making in all 141 firkins, and paid the earnest money on the remaining 109 firkins, and before these last were taken it was destroyed by the Chicago fire without fault on the part of the sellers: Held, in an action by the purchasers to recover damages for the non-delivery of the remainder thus destroyed, the declaration showing a completed sale, that the accidental destruction was a complete defense to the action.</p>

Edwin S. Leland, Judge, presiding. This was an action of debt, brought by the appellees, upon a sealed instrument, executed by the appellant, through an attorney in fact, and by the appellees, of which the following is a copy: “ It is hereby agreed between Aaron E. May, by G. Gilbert Gibons, his attorney in fact, of the one part, and James Magee and William J. Magee, of the other part, as follows: That said May shall pay to said Magees $450, in full payment of all…

Writ of Error to the Criminal Court of Cook county; the Hon. Lambert Tree, Judge, presiding. This was an indictment against the plaintiff in error for the murder of Patrick O’Meara. The facts involved in the decision are stated in the opinion of the court.

Lambert Tree, Judge, presiding. This was a suit brought by Thomas S. Evans against Patrick Ahern and Daniel A. Walsh, to establish a mechanic’s lien on the premises of the defendants for work done thereon by the plaintiff. The court granted the relief sought, and the defendants appeal.

Richard G. Montony, Judge, presiding. The material facts of the case are stated in the opinion. After the hearing of the cause the court below dissolved the temporary injunction granted. Upon suggestion of damages for attorney’s fees and expenses, the court assessed the damages at $200 attorney’s fees, and $36 expenses.

<p>Appeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding.</p>

<p>Couktt court—jurisdiction. The extended jurisdiction of the LaSalle county court under the act of 1865, was repealed hy the constitution of 1870, and that court can now only exercise such jurisdiction as is conferred on county courts hy general law.</p>

<p>Master and servant—liability of servant to mastw' for injury resulting from neglect of duty. In an action by an engineer to recover his wages for services on defendant’s tug boat, the evidence tended to show that the boat was damaged by fire while in plaintiff’s charge, and that it was the result of a breach of duty on his part, and the defendant sought to recoup these damages. The court instructed the jury for plaintiff “that an engineer of a tug boat is not an insurer of the boat upon which he works, and is not responsible for damage to the machinery which is not directly attributable to his negligenceHeld, that the instruction was erroneous, and calculated to mislead the jury. The engineer was liable, if the damage could be fairly attributable to the act done or omitted by him as a natural result or a just consequence.</p>

This was an application in this court for a mandamus. The facts necessary to an understanding of the case appear in the opinion.

<p>1. Specific performance—defeated by gross laches. In 1846, the complainant purchased an eighty-acre tract of land by a verbal contract, and conveyed to the vendor forty acres of land to secure the payment of the price of the other tract, with interest. The complainant finding that he could get the money at a less rate of interest, by consent of all parties, the vendor conveyed both tracts to one J, who advanced the money and became substituted in the place of the original vendor. In 1849, the complainant paid J a portion of the purchase money. In 1868, the heirs of J, he having died, conveyed the lands to G, when the complainant filed his bill to have the deed to G declared a mortgage, and for redemption from the same, or have a trust declared, or to compel the heirs of J to account for the value of the lands: Held, that the relation of the original parties as to the eighty-acre tract was that of vendor and vendee; that J, by substitution, took the place of the vendor, and that the complainant’s remedy as to this tract was by bill for specific performance, but that, by his gross laches and inexcusable delay in completing the contract, he was barred of that remedy.</p> <p>2. Mortgage—right to redeem from comkyance giren as a secw'ity. Where a party, in 1846, conveyed forty acres of land to one from whom he had verbally purchased an eighty-acre tract, as a security for the payment of the purchase money, and, in 1848, by agreement, one G- was substituted as vendor, and both tracts were conveyed to him by the original vendor, who was paid by G, and the heirs of G, after his death, sold and conveyed both tracts: Held, that the relation thus created as to the forty acre tract was that of mortgagor and mortgagee; that the sale and conveyance by the heirs was a distinct abandonment and -repudiation of the contract of sale as to the other tract, and operated to discharge the vendee from the payment of the price, and therefore was a satisfaction of the mortgage, and that the heirs were liable, on bill to declare and enforce the trust, to account to the mortgagor for the value of the forty-acre tract, after deducting taxes paid.</p> <p>3. Limitation—Mil to redeem from mortgage. By analogy to the ordinary limitation of rights of entry and actions of ejectment, the mortgagor’s right of redemption in equity will be barred in twenty years from the time the mortgagee enters into possession after breach of condition.</p> <p>4'. Same—enforcement of trust. It seems that the statute of limitations will not be applied in a proceeding in equity to enforce a trust to reconvey the legal title to lands after discharge from the mortgage debt.</p> <p>5. Parties in chancery—on a Mil to enforce trust. On bill to declare and enforce a trust against the heirs of a deceased trustee, the administrator of such deceased trustee is not a necessary party.</p>

Writ or Error to the County Court of LaSalle county; the Hon. Charles H. Gilman, Judge, presiding. The declaration in this case was upon an award, and also contained a count upon the promissory note referred to in the award, and the common counts. The cause was tried by the court without a jury. On the trial the plaintiff offered in evidence the award and the note. The court found the issues for the defendant.

Silvanus Wilcox, Judge, presiding. This wasj,a bill in chancery, by Harriet King, asking that the sale of certain premises which had been occupied by her as a homestead, be set aside, the deed cancelled, and for other relief. It appears that she and her husband, in 1858, executed a deed of trust on the property to one Merrill, to secure the payment of a debt of the husband, but it contained no release of the homestead right.

<p>Appeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding. .</p>

Charles H. Gilman, Judge, presiding. This was an action on the case, by the appellee against the appellant as carriers. The appellee recovered judgment for $2.50, from which the appellant appealed.

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

<p>1. Practice&emdash;when motion to dismiss is proper. Motions to dismiss, which assume the office of a plea in abatement, will not be entertained unless the objection appears upon the face of the papers. If other objections are to be considered, they must be presented by plea in abatement, so that an issue of fact can be made and tried.</p> <p>2. Abatement—where defendant is sued out of his county. Where the plaintiff fraudulently caused the issue of a warrant upon a false complaint, charging the defendant with a crime, and had him arrested and forcibly taken from the county of his residence to another county, for the purpose of having civil process there served upon him: Held, that a plea in abatement could have been properly framed in such a case, but that the suit could not be dismissed, on motion, for such cause, the objection not appearing on the face of the papers.</p> <p>3. Service—when a defendant may be served, in county where, found. If a defendant voluntarily leaves his residence, and goes to another county, or if seized, when properly chargeable with crime, and taken to another county, he may be said to be found there, within the sense of the words used in the statute making it unlawful to sue a defendant out of the county where he resides or may be found; but it would be a perversion of the object of the law to permit an arrest upon false and fraudulent pretences, and the abduction of the defendant, for the sole purpose of obtaining service upon him in a civil proceeding.</p> <p>4. Service op process—am, arrrest on a capias without reading is not, where the defendant is discha/rged. Where the defendant in a civil suit was arrested illegally out of his county upon a capias ad respondendum, from which arrest he was discharged on habeas coipus without giving bail for his appearance, and the sheriff’s return upon the process was, “ I have executed the within writ by arresting the defendant, who is now in jail Held, that the defendant was not brought into court by the sheriff’s indorsement on the writ. Service, under our law, means to read the writ to the party.</p> <p>5. If the defendant had been kept in jail until court, then he could and would have been before the court.</p> <p>6. Appearance—when not to the meo'its. Where a defendant appeared only to question the jurisdiction of the court, and, when that was decided against him, took no further step in the cause, either in person or by attorney : Held, that this was not such an appearance as authorized his default to be taken, or obviated the necessity of service of process upon him.</p>

<p>1. Bastardy&emdash;preponderance of evidence sufficient to convict. A proceeding for bastardy being in effect a civil proceeding, though criminal in form, it is not essential to a conviction that the évidence of guilt should exclude every reasonable doubt, but a preponderance of the proof will be sufficient.</p> <p>2. Same&emdash;judgment consumed. Where the defendant, in a prosecution for bastardy, on being found guilty, was adjudged to pay the several installments of money and the costs, and to “execute a proper and sufficient bond for the payment of the judgment herein in due form of law ”: Held, that the judgment required the defendant to give bond for the installments only, and not for the costs of the suit.</p>

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

<p>1. Homestead&emdash;title necessao’y to the right. Where a husband and wife gave a deed of trust upon land, a part of which was occupied as their homestead, and held by the husband under a contract of purchase, upon which there was about $400 of the purchase money unpaid: Held, that, upon tender of the sum due, the husband became invested with an equitable title, and the owner within the meaning of the statute relating to homesteads, and entitled to the right of exemption against all the world except as to the party entitled to receive the balance due on the purchase, and as to him upon its payment.</p> <p>3. Same—right lost ly consenting to deoree. Where, in a proceeding in chancery by husband and wife, to redeem from a deed in the nature of a mortgage, and to avoid a sale of their homestead under a deed of trust containing no release of the right, the husband consented to a decree which divested him of the right: Held, that the husband, by consenting to such decree, lost his right, but that the wife, not having consented thereto, nor relinquished that right when she executed the deed of trust, was not barred by the decree in the chancery suit from maintaining a bill to insist upon the exemption.</p> <p>3. It is against the policy as well as the terms of the homestead law to permit the husbaná to deprive the wife of her right to claim the homestead, except by removal with his family from the place. Therefore he can make no stipulation for a decree that will deprive her of such right. If it can be done by decree, she must herself consent to it.</p> <p>4. Same—what is purchase money. Where a husband and wife executed a deed of trust upon a quarter of land, to secure a note given for borrowed money, the husband having the legal title to the east half thereof, and holding the other half under a contract of purchase upon which he owed §400, and being pressed for payment of such purchase money, he procured the party holding the indebtedness secured by the trust deed to advance the money to his vendor, and take a deed from the latter to secure him, giving to the first purchaser a bond for a deed with a clause of forfeiture, which was afterwards declared, and the whole premises sold under the deed of trust to a third party in payment of the indebtedness, the deed of trust containing no release of the homestead right: Held, on bill by the wife to assert her homestead right, that the balance due for the premises was to be treated as purchase money due to the purchaser at the trustee’s sale, which must be satisfied before the court would protect her in the right claimed.</p> <p>5. Same—account of rents and profits, and toases and necessa/ry repairs. Where the purchaser under a deed oí trust, which failed to release the wife’s right of homestead, obtained possession of the same in a suit in equity upon a decree entered by the consent of the husband without the knowledge of the wife, and held such possession for several years, and such purchaser had succeeded to a claim for about §400 purchase money on the homestead: Held, on bill by the wife to be restored to her homestead right," that the court below should have decreed to the wife a homestead upon the condition that she pay the balance of the purchase money, if any should be found due thereon after an account should be taken of the rents and profits of the homestead, less taxes and necessary repairs, dr after deducting the interest on §1000.</p> <p>6. In taking the account, if rents should he allowed, it should only he for the use of the homestead, and not of the eighty acres upon which it was situate, if that was worth more than the amount of the exemption; and if anything should remain on the purchase money, she should have been allowed a reasonable time within which to pay it before she would be deprived of the homestead.</p> <p>7. Same—right to assert by original bill. It has been repeatedly held tha't a wife, to preserve her right of homestead, where she has not signed a mortgage and released the same, is not compelled to set up the right when a foreclosure is sought, and where a foreclosure has been had and the persons entitled to the right fail to set it up as a defense, they are not estopped from asserting the right in subsequent proceedings.</p> <p>8. Mr. Justice Scott, dissenting, holds that, where a purchaser of land under a bond for a deed has such an interest in the- premises as would be liable to levy and sale on execution, he has such an interest as that the homestead right would attach to the same.</p> <p>9. Also, that where a deed of trust containing no release of the homestead had been given upon land occupied as a homestead, and the creditor paid the balance of the purchase money due thereon, taking an absolute deed therefor as a further security, and the court decreed the payment of the amount secured by the trust deed as well as the purchase money so paid, by a certain day, and, in default thereof, a strict foreclosure, when the homestead right of the husband and wife was distinctly set up in the pleadings, that i here was error on the face of the proceedings, which could be reached on an original bill in the nature of a bill of review.</p> <p>10. Also, that an original bill in the nature of a bill of review may be filed at any time without leave of court; and that such a bill may be brought for fraud in fact or fraud in law.</p>

<p>Appeal from the County Court of Peoria county; the Hon. John C. Tates, Judge, presiding.</p>

<p>1. County court—presumption in favor of jurisdiction. The county court, in matters in which it can act, is a court of general jurisdiction, and liberal intendments will be made in its favor. Until the contrary is made to appear, it will be presumed that such coui;t had jurisdiction, and proceeded regularly.</p> <p>2. Same—jurisdiction of the person. Where an executor was cited by the, county court to appear at the July term, 1869, to make a final settlement of his accounts, and show cause why he should not account for certain property which came to his hands, and he appeared, and the cause was continued, by consent, to the November term, when a portion of the evidence was heard, and the cause again continued to the next term, when an order was made requiring him, within thirty days, to file an account current, charging himself with sundry items amounting to $4483; and at the June term, 1870, the county court, for non-compliance with this order, and other acts of misconduct, found there was due from him, in favor of the estate, $1836.30, ordered its payment to his successor, and revoked his letters and appointed his successor; and the record failed to show any new citation or notice that further proceedings would be had against him at the latter term: Held, that the order made at the December term was not a final one, and that it would be presumed in favor of the jurisdiction of the court, nothing appearing to the contrary, that the cause was continued on the docket until the report required should be presented for approval, and was so continued until the order of removal was made.</p> <p>3. Judgment—conclusive ejfeat of orders of county cowrt on eececutor and his securities. Where the county court, having jurisdiction of the person of an executor by citation and appearance, after several continuances, made a final order finding the amount in his hands, revolting his letters, appointing his successor, and requiring the executor to pay over such sum to the successor within sixty days: Reid, in a suit upon the executor’s bond, that, as the county court had jurisdiction of the subject matter and of the person of the executor, the order was final and conclusive upon all parties affected by it, including the surety, as to the amount due from the ' executor to the estate, unless impeached for fraud.</p> <p>4. Pleading—plea contradicting facts found by a final order or judgment of the county cowrt. In a suit upon the bond of an executor, where the declaration showed a final order of the county court finding a certain sum due from the executor to the estate, the defendants, by plea, attempted to show that the amount found due by the county court was not the real amount due from the executor to the estate, but did not seek to impeach the order for want of jurisdiction in the court, or for fraud: Held, that a demurrer was properly sustained to such plea, as the order was conclusive upon the surety, except for want of jurisdiction or for fraud.</p>

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

<p>1. Consideration—settlement of right of action growing out of a tort. Where the holder of a note secured by a deed of trust surrendered the same' to effect a settlement of an alleged assault upon the person of the wife of the grantor in the deed of trust by the party holding the same, and received from the wife and her husband a release of all private right of action for the assault, there being no proof to show that the cause of action so settled was unfounded: Held, that the compromise and settlement of the cause of action was a sufficient consideration for the surrender of the deed of trust and note.</p> <p>2. If the compromise had been effected to compound a criminal offense, the law would give no aid to either party, but the parties had the right to settle the private right of action, notwithstanding the act complained of was also criminal.</p> <p>3. The waiver of any legal right, although it may be founded upon a tort, at the request of another, has always been deemed a sufficient consideration for a promise.</p> <p>4. Even a compromise of a doubtful right, fairly obtained, is a good consideration on which to found a contract, and it does not matter what the ultimate result might have been. A threat to sue by one who honestly believes he has a good cause of action, will support an agreement fairly made for the avoidance of the suit.</p>

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

Writ of Error to the Superior Court of Cook county. This was an action of replevin, brought by Isaac Tower, against Timothy Bradley and Anna Hilton, for the wrongful taking and detention of certain personal property. A trial by jury resulted in a verdict and judgment for the defendants.

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

<p>Chancery—bill to open dem'ee of foredoswre and to redeem, from mortgage. After decree of foreclosure and sale thereunder at the suit of the party in possession, the mortgagor filed his bill to open the decree and to charge the complainant in the former suit with rents and profits of the mortgaged premises, and offering to pay any deficiency necessary to redeem from the mortgage. The bill was not brought to a hearing until after the time of redemption had expired. No fraud was charged in obtaining the decree of foreclosure, and nothing was shown why the mortgagor did not seek to have the rents and profits applied pro tanto in payment of the mortgage debt, and the latter, in his answer to the bill to foreclose, had set up payment under which he might have established payment to the extent of such rents and profits: Held, that the latter bill, whether it was a bill of review or a bill in the nature of a bill of review, showed no equity on its face, as it sought to treat the mortgage debt as still subsisting when it had been extinguished by the decree of foreclosure and sale thereunder.</p>

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

<p>Criminal conversation—evidence of pecuniary condition of parties. In an action on the case for criminal conversation with the plaintiff’s wife, exemplary. damages being recoverable, evidence of the pecuniary circumstances of the parties is proper; but where such a case is tried several years after the injury complained of, it is error to admit proof of the plaintiff’s bankruptcy at the time of the trial.</p>

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

<p>1. Chancery—jurisdiction—bill to quiet title. It is only in extraordinary eases that a court of chancery will assume the trial of purely legal titles; and, as a general rule, the holder of a legal title, not in actual possession, can not maintain a hill to quiet his title and compel a relinquishment of adverse claims, for the reason that he may have his title tested in a court of law.</p> <p>2. Same—wrongful possession. Where the holder of an adverse claim of title to land took possession and leased the same for five years, and the complainant, also claiming title to the same land, procured the tenant to attorn to him, and the original lessor, by forcible detainer, recovered the possession, which was, on the following night, forcibly retaken by the tenants of the complainant, who filed his bill in equity to enjoin the prosecution of an action of forcible entry and detainer, and to quiet his title as against the holder of the adverse title: Held, that while the complainant was in the actual possession of the land at the time he exhibited his bill, yet, as it was obtained unlawfully and forcibly, he could not be allowed to take advantage of his own wrong, and would be considered, in equity, as out of possession, so far as the question of jurisdiction was concerned; and, being out of possession, he had a complete remedy at law, and' a court of equity could not entertain his bill.</p> <p>3. Chancery jurisdiction—waiver of objection to. Except in cases where the subject matter is wholly foreign to the jurisdiction of a court of equity, the objection that there is an adequate remedy at law must be raised and urged in the court below, or it will be considered as waived, when the record is brought to this court.</p> <p>4. Same—to set aside title fraudulently obtained. A court of equity has jurisdiction to set aside and cancel a deed, even where the defendants are in possession,' where it is fraudulently procured with full knowledge of a prior unrecorded deed from the same grantors for the purpose of defeating the title acquired under the first deed.</p> <p>5. But where the party out of possession held under a deed from the patentee, which was recorded in proper time, and a long time after such registry, the defendant purchased and obtained a deed from the heirs of the patentee, claiming that the prior deed of the patentee was void, as having been made before the issuing of the patent, the land being military bounty land: Held, that no fraud, in such a case, could be justly predicated of the deed from the heirs, to give a court of equity jurisdiction of a bill to cancel the same, but that the parties would be left to a court of law to determine which held the superior title.</p>

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

<p>1. Evidence—opinions of witnesses. Where a railroad company sought to condemn city lots with buildings thereon for the use of their road, it was held, that as lands and city lots have no standard value, it was right and necessary to take the opinions of witnesses, and to hear the facts upon which such opinions were founded, to enable the jury to fix the compensation to be awarded to the owners.</p> <p>2. Bight of way—measure of compensation. The law requires that for all the property taken by a railroad company for its use, or damaged by it, just compensation must be made to the owners. If a building stands in the way of the road, which it is necessary to destroy, its value must be paid by the corporation, and the jury, in estimating its value, will take into consideration, not the value of the materials composing the building, but the value of the building as such. Should any of the debris remaining on its removal or destruction be appropriated by the owner of the land, to the extent of its value will the claim of the owner be lessened.</p> <p>3. If asked, the court should instruct the jury to take into considera- • tion the fact, that the corporation acquires only an easement in the land condemned, and they should allow to that fact such importance as they deem proper.</p> <p>4. Same—evidence of trespass and matters of aggravation. On the assessment of the compensation to be paid the owners of land taken for railroad purposes, the court permitted to go to the jury evidence of the violent entry into the premises by the agents and servants of the company, which was detailed at great length, going to show a wilful trespass: Reid, that such evidence was improperly admitted, and that the error was not cured by instructing the jury to disregard it.</p> <p>5. Ebbob—when, substantial justice is done. Where, upon the whole record in any case, this court can see that justice has been done, it will not be inclined to reverse a judgment for mere error in the admission of improper testimony.</p>

<p>1. Administrator’s sale of land to pay debts&emdash;limitation as to time for making application. While there is no statute of limitations barring proceedings by administrators for the sale of lands to pay debts, yet the right to sell the real estate of a deceased person for such purpose will be barred after the lapse of seven years, unless the delay can be satisfactorily explained; and in this respect each case must rest upon its own peculiar facts.</p> <p>2. Where the intestate died in. 1856, and petition by his administrator for an order to sell land to pay debts was filed for the first time in 1871, containing no explanation for the extraordinary delay, but the court found in the decree that it was excused from the fact that the premises were occupied as a homestead by the widow and family for a considerable time after the death of the decedent, and the belief of the administrator and creditors that the right continued in the youngest child, who received the rents while the family did not occupy the premises, and the record failed to show the value of the land: Held, that the court erred in ordering a sale, as the great delay was not accounted for; and that the facts found by the court afforded no reasonable explanation.</p> <p>8. Homestead&emdash;right of minor child to. Where a party dies, having a homestead right, leaving his family in the occupancy of the premises, that right in the premises will continue until the youngest child attains his or her majority.</p> <p>i. Same&emdash;abandonment. Where land claimed as a homestead was sold by the administrator of the estate under a decree of court to pay debts, there being no allegation in the petition of any abandonment of the right; but the decree of the court recited that the homestead at the date of the decree had been abandoned, there being no such evidence in the record on' that point: Held, that the decree was erroneous.</p> <p>5. Administrator’s proceeding to sell land&emdash;^preserving evidence. In a proceeding by an administrator to sell lands to pay debts, commenced fourteen years after the death of the intestate, the evidence heard by the court to explain the delay must be preserved in the record to sustain the decree on error.</p> <p>6. Same&emdash;-former decision explained and limited. What was said by this court in Bhoemate v. Lockridge, 53 111. 503, as to presumptions that evidence was heard to support the findings of the court, must be regarded as said with reference to proof of indebtedness and of the facts necessary to confer jurisdiction.</p>

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

Charles H. Wood, Judge, presiding. This was a suit upon a promissory note, of which the following is a copy: “ Aroma, Kankakee Co., 111., April 24,1868. On or before the first day of December, 1868, I promise to pay to C. D. Roberts, or order, seventy-five dollars, or one hundred gallons of refined syrup, by the Clough refining process; syrup to be delivered at Kankakee, at railroad. Oscar N. Case.” Indorsed: “Pay to A. B. Lyman.

<p>1. Carrier—liability of transfer company to owner of goods shipped. The owner of a lot of flour shipped the same to Chicago, to be carried from there by the Northern Transportation Company to Ogdensburg, N. Y., and thence by rail to Barton’s Landing, Vt., paying the freight to Chicago, taking the carrier’s receipt. The clerk of the transportation, company receipted for the same to the company with whom the contract was made, upon the representation that the flour had arrived at the warehouse of defendant, and that the freight had been prepaid, but testified that the flour was never in fact received. It seems that, owing to a mistake in mark, ing the direction of the car containing the flour, the same was received by another warehouse company, whose house was near that of defendant. It was contended, under those circumstances, the defendant was not liable for the loss, but that the owner’s remedy was against the first carrier for the mistake in marking the car, which led to the loss: Held, that, while the first carrier was guilty of negligence, the defendant was also guilty of negligence in giving the receipt without first ascertaining that the flour had arrived at its warehouse, for which it was liable to the owner; and that the question of ultimate liability was one tobe settled by the two companies-themselves.</p> <p>2. Same—measure of damages for non-delivery of goods. Where goods are shipped for transportation, and are lost, or not delivered, the proper measure of damages is the value of the same at the place of destination, and interest, deducting the unpaid cost of transportation; and when such cost has been paid either wholly or in part, it is erroneous to include the same in the assessment of the damages.</p> <p>3. Supreme Court—reversal with direction to enter judgment for the proper amount. Where the only error in a cause was that the court allowed an item in the assessment of damages which was not proper, the trial' being by the court, and there was no dispute as to the amount, on reversal, ' the cause was remanded with direction to the court below to render judgment for the proper amount as found by this court.</p>

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

<p>1. Replevin—title necessary to maintain the action. Where the plaintiff had leased land for a share in the crops, his portion to be delivered to him in cribs and then to be measured, and before the crops had been gathered it was levied upon as the property of the tenant, whereupon the landlord brought replevin for the same: Seld, that the plaintiff could not maintain the action, as he had no such property in the crops until they were gathered and divided as to entitle him to maintain replevin.</p> <p>2. Landlord and tenant—property in crops. In the case of a leasing for a share of the crops raised, to be divided after the same is gathered, the title to the whole of the crop raised will be that of the tenant until divided and possession given; and after the levy of an execution against the tenant, an agreement between him and the landlord that the latter shall receive his share in the field will not be allowed to defeat the levy.</p>

<p>1. School law—districting township. The trustees of schools have power, under the school law, to district, and it is made their duty to district their township into proper divisions to suit the wishes and convenience of a majority of the inhabitants thereof, for school purposes. In this, they are vested with a large discretion, and courts will not attempt to control its exercise, except in a palpable case where a plain violation of law is manifested; and if they err in their action, and no fraud, gross injustice, oppression or corruption is shown, the courts will not interfere.</p> <p>2. And where it may be that the trustees were vacillating, and lacked firmness, and made frivolous excuses for failing to rescind their order in making the districts, and violated promises not to re-district, and their action may not have shown the highest wisdom, it will not be inferred from such facts that they were actuated by fraud or corrupt motives.</p> <p>3. Injunction—damages on dissolution. Where the court, on the dissolution of an injunction, in the assessment of damages, did not allow more than one-half of-the amount which the witnesses swore the attorneys’ services were worth, which appeared to have been a reasonable fee, and the proof showed that the attorney appeared in open court, and argued the motion to dissolve the'injunction: Held, that the proof sustained the finding as to damages, as a retainer of the attorney might be inferred from the facts.</p>

Silvanus Wilcox, Judge, presiding. This was an action of assumpsit, brought in the court below, by John Halley against Eliza Ball. The defendant filed pleas of coverture, to which the plaintiff replied, and issue was joined. Subsequently, on motion of the defendant, the court ordered the replications to be stricken from the files. Thereupon judgment was entered against the plaintiff, from which he appealed.

<p>1. Landlord and tenant—statute in relation to double rent construed,. The second section of the chapter of the Revised Statutes entitled “ Landlord and Tenant,” which gives the landlord double rent in case of a wilful holding over by the tenant after the expiration of the term, and after demand and notice, etc., applies only to a wilful holding over after the term has expired by efflux of time, and not to a case of holding over where the term is ended by act of the landlord in declaring a forfeiture. In the latter case the tenant is liable for no more than a fair and reasonable rent for use and occupation for the time he holds over.</p> <p>2. Construction of statutes. In construing statutes courts are required to give to language, when the sense will bear it, the usual and popular meaning attached to the words employed.</p>

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

<p>1. Estoppel—to avoid act, by procuring it to be done and, sharing in benefits derived from it. Where the wife and children of. a person then in advanced years, counseled and assisted in procuring such person to convey his real estate to a son, so as to enable the latter to raise money, by his mortgage on the same, of an innocent party, who did no act, or even counseled the adoption of the course pursued, and the money thus raised was invested in the purchase of a homestead for the father, which the children inherited after his death: Meld, that the heirs and the widow, to whom most of the heirs conveyed after the father’s death, were estopped from defeating the lien of the mortgagee by insisting that the father was mentally incapacitated from entering into the arrangement by which the money was obtained, they not being under any disability, and not claiming that they did not fully understand the arrangement.</p> <p>2. Promissory note—remedy on, when in equity. Where a son, in consideration of the conveyance of land to him, gave his notes for the price, payable to the heirs at law of his father in a certain time after the death of his father and mother, the interest to be paid annually for the support of the father and his wife: Meld, that the heirs, by the form of the notes, were at least equitable holders, and, inasmuch as the’maker was also a payee, their payment could only be enforced in a court of equity.</p> <p>8. Assignment of note—when void by reason of mental incapacity to make assignment, subject to equitable defense. Where a father, being physically and mentally weak, and incapable of managing his farm and affairs in a proper manner, by the advice and consent of all the members of his family, conveyed his farm and property to a son, taking notes secured by a mortgage on the land, the notes payable to his heirs at a certain time after his death and that of his wife, the interest payable annually for their support, and placed the same in the hands of another son with whom he made" his home, and such son, without the consent of the other heirs, surrendered these notes, taking in lieu thereof two other notes, payable to the father, secured by a mortgage, and induced the father to indorse one of them, and then sold the same, and afterwards sold the other, indorsing his father’s name thereon as agent, it appearing that the father, at the time of such transfers, was non compos mentis: Meld, on cross bill by the holders of these notes, that the assignment was void by reason of the mental incapacity of the assignor, and the holders took the same subject to all defenses existing against them; and that, as equity looks to the substance rather than the form, the new notes so taken, except as to the maker, and the son who transferred them, would be treated as belonging to the heirs at law of the father the same as the original notes.</p> <p>4. Equity only rega/rds substance. Equity only regards substance, without being trammeled by mere forms. So, where notes secured by mortgage were given payable to the heirs of a party after his death, and one of the heirs having possession of the same, by an arrangement with the maker, substituted other notes in lieu of the same, also secured by mortgage: Held, that the first notes were a lien upon the mortgaged premises in favor of each of the heirs, to the extent of their several interests in the same, and that the parties making the change were powerless to deprive them of that interest without their assent; and that such change in the form of the evidences of the indebtedness without their authority or ratification, in nowise affected their lien on the land, or their right to enforce it in equity. .</p> <p>5. Party in chancery—-foi'eclosure of mortgage. Where a mortgage was given to secure notes payable to the heirs of a certain person after his death, and after the death of such person all his heirs, except one, conveyed to his widow their interest in the mortgaged premises: ILeld, upon cross bill to foreclose a prior mortgage given by the same mortgagor, that such heir who had not conveyed to the widow was a necessary party to the cross bill.</p> <p>6. Where a mortgagor had sold and conveyed a portion of the mortgaged premises before bill filed to foreclose the mortgage: Held,, that the grantee was a necessary party defendant to the bill. .</p>

Writ of Error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding. This was a suit in attachment, brought by the plaintiff in error against the defendant in error. The cause of attachment was, that Armstrong had departed from this State with the intention of having his effects removed from the State to the injury of the plaintiff, and that defendant was a non-resident of the State.

Arthur A. Smith, Judge, presiding. This was an action of assumpsit, by the appellee against the appellant, to recover for the price of a lot of lumber sold to appellant and used in the erection of a church building. The plaintiff below, when called as a witness, testified: “I live in New Boston, and know the trustees of the defendant. In 1869 and 1870, 1 sold them lumber, and have an account of the same in my books, A and B, which I have here.

<p>Contract to sell and deliver—time of delivery. The plaintiff, by a written contract with defendant, agreed to deliver to the latter, after the first day of December, and before the first day of the following January, two hundred hogs, on demand, at a certain railroad station, for which he was to be paid seven cents per pound, on delivery.- No demand was ever made for the hogs, and the first of January fell on Sunday. On the Friday previous, the parties met, and the defendant said he did not want the hogs on Sunday, but would take them on the following Monday. It was finally agreed that the plaintiff" should meet defendant on Saturday, for the purpose of arranging for keeping the hogs a week longer. The plaintiff went to the place appointed, but did not happen to meet the defendant. The plaintiff delivered the hogs at the station, at eleven o’clock p. m. of the second day of January, but the defendant had left before, having waited until about dark. On the next day, defendant was notified of the delivery at the station, but he refused to accept the hogs, claiming that they were not delivered according to the contract": Meld, under the facts. and circumstances, an offer to deliver the hogs on Tuesday, at the station, was sufficient to entitle the plaintiff to recover. The jury were warranted in finding that an earlier delivery had been dispensed with by the conduct of the purchaser.</p>

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

<p>Appeal from the Superior Court of Cook county; tjie Hon. Joseph E. Gary, Judge, presiding.</p> <p>This was an action of assumpsit, brought by William K. Wells against the city of Chicago, to recover back money > paid by him to the city, on the sale of a lot for an unpaid special assessment. The court sustained a demurrer to the declaration, and rendered judgment against the plaintiff for cost. From this judgment the plaintiff appealed.</p>

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. William W. Heaton, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.</p> <p>This case and the one following, of Horatio Seymour et al v. John F. Bailey et al, were suits in equity, brought in the Superior Court of Cook county by the appellees against appellants, to redeem lands in Cook county from sales made, one June 17, 1862, and the other November 22, 1862, under decrees of foreclosure of mortgages upon them entered in said court. The records in the cases are substantially alike, with the difference as to description of land and amounts due.’</p> <p>The material facts are substantially as follows: On the 21st of February, 1857, Horatio Seymour and others, heirs of Henry Seymour, conveyed to John W. Davis, of Mobile, Alabama, a part of the north half of the south-east quarter of section 12, T. 39, R. 13 E., in Cook county, and Davis made a mortgage back to secure the unpaid purchase money, then 'amounting to about $27,000, omitting from the mortgage a five acre block. The purchase had been made in December, 1855, for $48,000.</p> <p>This block, together with another one subsequently released from the mortgage, Davis sold for $22,500. The mortgage secured Davis’ bond for the following payments:</p> <p>January 25th, 1858, $9000 principal and $1620 interest.</p> <p>January 25th, 1859, $9000 principal and $1080 interest.</p> <p>January 25th, 1860, $9000 principal and $540 interest. '</p> <p>At the same time, February 21st, 1857, the Seymours conveyed to Davis the east half of the south-west quarter of section six, T. 38, B. 14, in said county, and Davis gave to them a mortgage to secure the deferred payments thereon ($2000 having been paid) as follows:</p> <p>February 21, 1858,........................ $2000.</p> <p>“ “ 1859,..........................$2000.</p> <p>“ . “ 1860,..........................$2000.</p> <p>“ “ 1861,..........................$2000.</p> <p>“ “ 1862,..........................$2000.</p> <p>with interest on the sums. About the time Davis purchased the land in section 12, he bought of the Seymours a half interest in a part of section 36, for the sum of $9000, the last installment of which he paid in December, 1858.</p> <p>On the 26th of January, 1858, Davis paid A. C. Coventry, for the mortgagees, at Chicago, $10,620, being the first installment due on the mortgage upon land in section 12. This was the last payment Davis ever made on these mortgages. He paid the taxes on the mortgaged lands for the year 1859, and never paid any afterwards.</p> <p>By the terms of the mortgages, in case of any default in payment of either principal or interest "for thirty days after the same became due, then the whole principal money and interest should become due and payable, and the mortgagee might foreclose the mortgages by advertisement, upon giving thirty days notice of the time and place of sale, in the manner ordinarily provided in mortgages, with a power of sale.</p> <p>On the 16th of December, 1861, the Seymours commenced suits in the Superior Court of Chicago for the foreclosure of these mortgages, and decrees afterward were obtained. The decrees entered were by default, due publication of notice, as in case of a non-resident defendant, having been made, the affidavit of non-residence stating that Davis was, at the time, a resident of the State of Alabama.</p> <p>These bills to redeem from the sales made under these decrees were filed on the 3d and 5th days of December, 1868, in the names of Bailey and Pierce, assignees in bankruptcy of Davis, who went into voluntary bankruptcy in December, 1867.</p> <p>The reasons assigned in the bill why the redemption should be allowed from the sales under the decrees of foreclosure, are, that the foreclosure suits were brought against Davis while he was a citizen and resident of Alabama, and that he was only notified of the pendency of the suits by publication in a Chicago newspaper, as in case of non-residents in chancery; that the existence of the war of the rebellion at that time rendered all the proceedings void; that there had been an extension of the times of payment of the mortgage debts; and, as a further reason, the pendency of the Price suit against the Seymours, which is noticed in the opinion.</p> <p>The only important evidence offered by either party was the testimony of Davis, his letters, the records of the foreclosure suits, and of the Price suit. The lands under the foreclosure sales were bought in, and are still held, by the mortgagees.</p> <p>Davis was examined in March, 1870, and testified that on the 26th of January, 1858, he paid A. C. Coventry, at Chicago, Illinois, $10,620, being the first installment due on the mortgage upon land in section 12; and that when he made the payment he stated to Coventry he feared he should not be able to meet the future payments as they became due, and might want an extension; to which Coventry replied that the funds which Davis had paid him were tied up by proceedings in court against the Price and Seymour estates, and it would be better for the Seymours if the payments were not made, as they would lose the interest.</p> <p>That in the winter of 1858-9 he called on Horatio Seymour, at Washington, D. C., to ask for an extension of his payments, and that Seymour referred him to his brother, John F. Seymour, but stated that he (Horatio) had no wish to embarrass him, and would be willing to give him a longer time. In the summer following, Davis saw John F. Seymour in the city of New York, and applied for an extension of time to pay these mortgages; and in the words of the witness, “at this interview John F. Seymour expressed himself satisfied with the promptness with which I had before made my payments, and was not disposed to press me in these payments, and that they had no objection to giving the extension, and he then assented to it. No definite time was agreed upon. I do not pretend to give the exact language used in this interview, but only the substance.” ■ After this, Davis returned to Mobile, and, as he says, “rested satisfied,” and did not make any further payments on the mortgages. About the commencement of the political troubles between the north and south, he says he received a letter from Coventry. Davis’ reply to this letter was dated Mobile,e November 20th, 1860, in which he says: “ I had intended offering to resume payments, making them every ninety days, from $1000 to $1500; but the result of the election,' I fear, will prevent. I am at my old business, and have a fine prospect, but the times look decidedly bad now. You ask my opinion as to Alabama secession. I think that there is no doubt but that she will go for secession strong.” The letter continues, and concludes with some political comments; the last paragraph but one of the letter is this: “If a majority go for secession, I must go with them, for they are in the right.”</p> <p>The following is a copy of a letter from Davis to John F. Seymour:</p> <p>Mobile, March 9th, 1858.</p> <p>Dear Sir : I had some conversation with Mr. Coventry in reference to an extension of time on the payment due February 21st—($2600.) Also with your Bro. at Washington. I would ask for six months’ extension, but would state that I may be prepared to pay it earlier. Am anxious to pay it as early as possible. My payments to you and Douglass the last fall and winter came very hard, as I had to give extension to parties in debt to me, and raised money by sacrificing to meet those.”</p> <p>Davis was not in active business in 1856 and 1857, but resumed business at Mobile in 1859, which was good and profitable up to 1861, and still more so after the war began. He testified that he was never asked to make any payments on the mortgages, or notified that he was expected to make them, nor that he knew of the foreclosure proceedings until some time in the spring of 1864, when he received a letter from Mr. Watson, in which there was some intimation that some proceedings had been instituted against him by the Seymours. Mobile was blockaded in the latter part of 1861. In July, 1863, Davis owned one-sixth of a cargo of cotton with which he ran the blockade and went to Cuba, and attempted to bring back meat, salt, etc., having a small interest in the return cargo. On his attempted return from Cuba to Mobile, in September of the same year, he was captured as a prisoner of war by a United States steamer and taken to Hew York city, and confined in Forts Lafayette and Warren until in June, 1865, when he was released as a prisoner of war.</p> <p>When he left for Cuba he had about $60,000 worth of lumber, and a plantation near Selma, Alabama, worth $20,-000. From the commencement of the war until he went to Cuba, he was in Mobile or the State of Alabama. He visited Chicago in September or October, 1865, but did not find Coventry there. He learned from Watson that the Seymours had some difficulty Avith the Price estate, which prevented, for the present, any arrangement, as Watson supposed. He says at this time he could have raised the money to pay these mortgages if he could have made arrangements to pay them. He then engaged at Hew Albany, Indiana, Avith other parties, in building two steamboats to run from .Mobile to Hbav Orleans, which were put into that line, and continued in the business until December, 1867, when the firm of which he was a member failed.</p> <p>There was an admission that all of the mortgaged premises were sold in 1861 for the taxes of 1860; that the certificates of sale were taken up by the heirs of Seymour, and' that they have paid the taxes since. The court below decreed for the complainants, and the defendants appealed from the decree.</p>

<p>1. Animals—right to remove cattle trespassing. Where cattle are trespassing upon the premises of a party, he, and also the members of his family, have the undoubted right to use all reasonable means and sufficient force to remove them, and there is nothing illegal in driving such cattle from the premises with dogs, if no unnecessary injury is done to the stock.</p> <p>2. When the plaintiff and defendant occupied adjoining premises, and the cattle of the latter were in the habit of escaping through an insufficient division fence into the premises of the plaintiff, the defect in such fence being attributable to the defendant, and the plaintiff’s daughter chased them back with the plaintiff’s dog, and shortly afterwards the defendant came and shot the dog on plaintiff’s premises: Held, that the defendant had no right to kill the dog, unless he was a nuisance in the neighborhood, but if injury ensued beyond what was necessary to drive the cattle back upon his own premises he had his action therefor.</p> <p>3. Does—right to hill. ■ If the owner of cattle, without fault on his part, is unable to protect them, when they are not trespassing upon the land of the plaintiff, from serious injury from the dog of the latter, then it seems he would have the right to kill such dog, to protect his stock.</p> <p>4. Same—evidence of vicious propensity. The fact that a dog had chased defendant’s cattle from the plaintiff’s land back to the defendant’s premises where they had escaped through an insufficient division fence, only when directed so to do by the plaintiff, or members of his family, or even his disposition to keep trespassing stock from his master’s premises, does not prove a vicious propensity in him.</p> <p>5. Same—instruction. In a suit to recover damages for the killing of a dog, the killing was sought to be justified as necessary to protect the defendant’s cattle from serious injury. The evidence did not show that the dog ever bit or worried the defendant’s stock, but simply run them, and that only when set after them, or when they were trespassing upon the plaintiff. The court instructed the jury that if they found, from the evidence, that the defendant could not otherwise protect his property from the ravages of the dog, he had a right to kill him; also, that if the dog was in the habit of trespassing on defendant’s premises and running his stock, and he could not otherwise protect himself from the frequent attacks of the dog, then he had a right to kill him: Held, that the instruction was too broad and calculated to mislead the jury, and was not warranted by the facts.</p> <p>6. Dogs—whether they heme a commercial value, is a question of fact. In a suit by the owner of a dog to recover damages for killing the same, the court instructed the jury that dogs had no established commercial value in that county: Held, that this was not a question of law, but one of fact for the determination of the jury</p> <p>7. Same—evidence to show value. In a suit to recover for the killing of a dog, the court instructed the jury that they should find his value from the evidence of his qualities, both good and bad, rather than from the opinions of witnesses, who based their estimates on the loss of the services of the dog for a given time: Held, that the instruction was erroneous, as the jury had the right to consider both kinds of the evidence in fixing the value of the dog, and as it excluded from consideration any question of commercial value and loss of services.</p> <p>8. Recoupment—in mitigation in ease of tort. In an action by the plaintiff to recover damages for the killing of his dog by the defendant,' the latter may show that he wrongfully sustained damages from the transaction, for which he was sued, or immediately connected with it, in mitigation of damages; but the matter shown in mitigation must have been not only wrongful, but must be immediately connected with the tort for which he is sued.</p> <p>9. But where the defendant killed plaintiff’s dog because he was used in chasing defendant’s cattle from the plaintiff’s premises upon which they were trespassing, and they received no more injury than was reasonably necessary in driving them from the plaintiff’s field: Held, that such injury could not be shown in mitigation.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>This was an action of trespass quare clausum fregit, by John L. McCormick against William L. Huse. The facts upon which the case was decided in this court are stated in the opinion.</p> <p>The second of the plaintiff’s instructions referred to in the opinion, was as follows:</p> <p>“ 2. If the Illinois River Bridge Company did construct their floating bridge and their roadway therefrom to the bluff, and, in doing so, became indebted to the plaintiff for work and money, (or work or money) expended in doing said .work; and if, in consideration thereof, the plaintiff took possession of said bi’idge and roadway with the consent or acquiescence of said bridge company, for the purpose of reimbursing himself for the money and wofk he had expended and had so invested, by the profits arising from the same, and he was so in possession of said floating bridge and roadway, using the same for his own profit, such possession is sufficient for him to maintain trespass for any unlawful violation of such possession.”</p> <p>The court refused to give the instruction as asked, but modified the same by inserting the words “ actual, exclusive,” before the word possession, in the second place where it occurs.</p> <p>Verdict and judgment in favor of the defendant. Motion for new trial overruled, and the plaintiff appealed.</p>

George W. Pleasants, Judge, presiding. This was an action- of trespass quare clausum fregit, by the appellee against the appellant.

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

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

<p>1. Right of way&emdash;compensation, confined to money. In a proceeding to condemn land for a right of way, the compensation to be ascertained by the jury for the taking of the land must be, in terms, money, and the jury have no power to prescribe the.performance of other acts by the petitioners, such as fencing the road, making crossings, etc.</p> <p>2. • Bill of exceptions&emdash;matters preserved in record without. The report of the jury of the damages assessed by them in favor of the owner of land in a proceeding to acquire a right of way, and the judgment of the court thereon, being a joiatter of record, will be taken notice of by this court without a bill of exceptions.</p> <p>3. But an application to change the venue of a cause is not a part of the record, unless made so by a bill of exceptions.</p>

<p>1. Subety&emdash;whether released by surrender of collateral. At the time of the execution of a note to a bank, the principal deposited with the bank ‘ certain other notes as collaterals for the protection of the surety in his note. The surety then left the United States, giving his brother a general power of attorney to transact any and all his business. After this note had matured, and before the surety’s return, the principal induced the bank, with the consent of the surety’s brother and agent, to discount a $325 note, one of the collaterals, of which $100 was paid to the principal, $150 applied in payment of another note the bank held on him and others, $35 applied to balance the principal’s bank account, and the balance of $32.44 credited upon the note sued on. In a suit on the note against the principal and surety, it was set up in defense that the consent of the agent was procured by means of representations by the bank that it held the collaterals as general security for what the principal owed them, and that such consent was upon the condition that the bank would assign the $150 note to the agent of the surety, but that the bank surrendered the same to one of the makers, who delivered the same to the agent, whereby it was extinguished. It also appeared that the principal gave the agent another collateral in the place of that surrendered, and that the agent received the $150 note knowing it to have been paid: Held, that an instruction to the jury to find for the defendant, if they found from the evidence that the collateral was surrendered to the principal under ethe arrangement made between the plaintiff, the principal, and the agent, and by means of the representations as alleged in the plea, was erroneous in not leaving the jury to find whether the agent did not assent to the payment of the $150 note, and did not receive it after its payment without indorsement and without objection, and as entirely ignoring the fact that other collateral security was taken by the agent in lieu of that surrendered by the bank.</p> <p>2. In such a case the instruction should have been so modified as to have left it to the jury to say whether the $325 note, held as collateral, was wrongfully perverted without the consent of the agent of the surety; and it should have distinctly stated what would constitute fraud as alleged in the plea, without a general reference to the plea.</p> <p>3. Same&emdash;extending time of payment to principal. Where the court instructed the jury, in a suit upon a note against a surety, in behalf of the latter, in respect to an extension of time of payment, which was made with the knowledge and, as it was contended, with the consent of an agent of the surety duly authorized, that if such extension was made without the consent or knowledge of the surety, they should find for the defendant: Held, that the instruction was erroneous and highly calculated to mislead the jury by leading them to believe that the personal consent of the defendant was necessary, and that the consent of his agent would not be sufficient.</p> <p>4. Same—instruction ignoring important fact. Where there was proof tending to show that an extension of time for payment given the principal debtor, was allowed with the consent of the surety’s agent, and that the surety, upon his return, with a knowledge of the facts, promised to s'ee the debt paid, an instruction given at the request of the surety in a suit against him on the note, in regard to the effect of such extension as releasing him, which failed to leave it to the jury to find whether the agent consented to the extension, and whether the defendant promised payment afterwards with a knowledge of the facts, was held erroneous.</p> <p>5. Where an extension* is given for the payment of a note, to the principal maker, in the absence and without the consent of the surety, if the latter, upon being acquainted with the facts and circumstances, 'promises to see the note paid, this will bind him to its payment, notwithstanding he would otherwise be released by such extension.</p> <p>6. Same—release by neglect to sue in pursuance of contemporaneous verbal agreement. In a suit upon a note by the payee against the principal and surety as makers, the court, at the instance of the surety, instructed the jury, if they believed from the evidence that at the time of the execution of the note and before signing the same, and in consideration thereof, the defendant surety instructed plaintiff to sue and collect the same at its maturity, and that the defendant signed it as surety for the other maker under such arrangement and agreement, then the plaintiff was bound to sue upon the note, and at least try to collect the same, and if the plaintiff failed to do so, they should find for the defendant: Held, that the instruction was erroneous, as the written statutory notice to sue was not given, and otherwise it sought to modify and vary the written contract of the parties by parol testimony.</p> <p>1. Evidence—tovmy written contract. The rule is familiar that verbal testimony can not be received to alter, modify or vary a written agree-meat.</p>

<p>1. Mandamus—when it will he awarded. The writ of mandamus ought not to be awarded in any case unless the party applying for it shall show a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced; and it must be effectual as a remedy, if enforced, and it must be in the power of the party, and his duty also, to do the act sought to be done.</p> <p>2. This writ is of such a nature that courts will grant it only in extraordinary cases, when otherwise there would be a failure of justice.</p> <p>3. Same—to compel commissioners of highways to remove obstructions in roads. Where a road had been opened and traveled for many years, and it was claimed that certain parties had obstructed the same by encroachment of their fences to its center, which fact was disputed, and it appeared that the encroachment, i'f any, was made under an honest claim of right: Held, that it was error to award a mandamus against the commissioners of highways to compel them to remove the obstruction, there being no such duty imposed on them by statute, and because the law afforded ample redress by suit for the penalty imposed, and by indictment, in which the parties charged could be heard in defense of their claim.</p>

<p>Appeal from the Circuit Court of JoDaviess county; the Hon. William Brown, Judge, presiding.</p> <p>This was an action of replevin, originally commenced before a justice of the peace. On the trial in the circuit court, the verdict of the jury was : “We, the jury, find the property in the plaintiff, and assess his damages, for the use of the property replevied, at one cent.” The defendant below moved the court for a new trial, and in arrest of judgment, which the court overruled, and rendered the following judgment: “That plaintiff recover of defendant his damages of one cent, assessed by the jury, and a general judgment for costs by him herein expended, and have execution therefor.”</p>

<p>1. Pleading and evidence—vw'iance—indictment for forgery. Where an indictment for forgery of a promissory note set forth a copy of the note, after the words “the tenor of which counterfeited^ promissory note is as follows, to-wit;” and in the copy as given, the maker’s name was spelled “Otlia, Carr,” while in 'the note offered in evidence it is “Oatha CarrHeld, that the variance was fatal.</p> <p>2. Where an indictment for forgery professes to set out the forged paper according to its tenor, the names should be spelled as they are in the original, as the word “tenor” in such connection binds the pleader to the strictest accuracy.</p>

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

<p>1. Excessive damages—/or personal injury through negligence. Where the plaintiff, through the negligence of a municipal corporation in keeping its sidewalks in repair, stepped upon a broken board in the walk and fell, breaking her right arm at the wrist, from which she suffered great pain and was incapacitated from following her usual occupation of nurse and domestic servant for a period of nine or ten months, and the proof justified the conclusion that her arm would never be as strong as before the fracture: Held, that a judgment for §1000 damages was not excessive.</p> <p>2. Damages—as against municipal corporation for mere neglect. While a municipal corporation may not be liable for punitive or vindictive damages for mere neglect of duty, yet it has always been held that loss of time, expenses incurred in being cured, pain and suffering undergone, and permanent injury, are all proper elements to be considered by the jury in making up their verdict as to the damages which the plaintiff may recover in consequence of a wrongful injury.</p>

<p>1. Payment—whether taking note or check is. In general, unless otherwise specially agreed, the taking of a promissory note for a pre-existing debt, or a contemporaneous consideration, is treated prima facie as a conditional payment only, that is, as payment only if it is duly paid at maturity. This rule applies with greater force in the case of taking a check.</p> <p>3. So, where the holder of an accommodation note accepted from the payee for whose accommodation the same was executed, a check on a bank for the balance due .thereon, and surrendered the same, which was then destroyed by tearing off the maker’s name, and the check was dishonored for want of funds of the drawer to meet it: Held, in the absence of proof to the contrary, that it would be presumed the check was taken as a means to procure the money to pay the note, and not as an absolute payment, and therefore, this would not defeat an action by the holder upon the note so surrendered by him.</p> <p>3. In such a case the production of the check was in nowise essential to a right of recovery on the surrendered note; and if it were so, the returning of the same with the plaintiff’s deposition into court was sufficient, especially when no objection was made on the trial that the check was not cancelled or surrendered.</p> <p>4. Check—want of presentment and notice of dishonor. The want of due presentment, or notice of the dishonor of a check upon a bank, does not discharge the drawer, unless he has suffered some loss or injury thereby. In this respect there is a difference between a check and a bill of exchange.</p> <p>5. Instruction—assuming the existence of a-fact. When an instruction assumes the existence of a fact in issue by"the pleadings, but which is admitted by the party objecting to the instruction, in his testimony, and there is no evidence contradicting such admission, there will be no material error in giving such instruction.</p> <p>6. Same—must be based on evidence. Where there is no evidence of a certain fact it is not erroneous to refuse an instruction predicated on the existence of such fact.</p> <p>7. Promissory note—when destroyed a recovery may be had though indorsed in blank. In a suit upon a promissory note which had been surrendered upon the delivery of a check for the sum due thereon, and destroyed by tearing off the maker’s name, the defendant asked an instruction that if the note was indorsed so that an action could be maintained by any holder of the same in his name, no recovery could be had without proof of the loss or destruction of the same, which was refused: Held, that while the instruction might properly have been given, its refusal afforded no just cause of complaint, the proof showing the destruction of the note.</p> <p>8. Interest—mode of computation where there is a credit. In case of a payment upon a note, the correct rule for computing the amount due on the same is to calculate the interest on the note to the time of payment, and the payment first applied on the interest and the balance on the principal, and then calculate the interest on the balance of the principal. To calculate interest on the whole to the day of trial and add the same to the principal, and then deduct from this the payment, with the same interest thereon to the trial, is not the proper mode of computation.</p>

<p>1. New trial—on ground of surprise. Where a cause was tried in its regular order when reached on the call of the' docket, the defendant and his attorneys not being present, and the affidavits of the defendant failed to show the exercise of proper diligence, or that he had a valid defense to the merits, and on the question of surprise, and whether counsel for the defendant were misled by assurances of counsel for the plaintiff, the evidence was conflicting: Held, that the court below did not err in refusing to grant a new trial.</p> <p>2. Partnership—sufficiency of evidence to show: In a suit by an administrator to recover for services.performed by his intestate, the defendant filed his affidavit in support of a motion for a new trial for the purpose of showing that he had a defense. It appeared that the deceased and his brother had both been working for the defendant, and defendant deposed that they told him to keep their account jointly: Held, that such a direction could not make them partners, unattended by other circumstances.</p> <p>3. Payment—sufficiency of affidavit as to. The defendant in his affidavit in support of a motion for a new trial, deposed that the deceased, (the suit being by his administrator to recover for his services), directed the defendant to pay the money due him to his brother, and that defendant settled with the brother: Held, that the affidavit failed to show payment to the brother. It only showed an adjustment of the amount due; and in that case a mere verbal request to pay the same to the brother, unexecuted, would not bind the parties, and therefore was no bar to a recovery by the administrator.</p>

Joseph E. Gary, Judge, presiding. This was an action on the case, brought by the appellees against the appellant. The deólaration alleged personal injuries to the plaintiff, Mary Langlass, in consequence of the negligence of the city of Chicago in failing to maintain a safe and sufficient sidewalk on North Union street, in said city, between Lake and Kinzie streets. The general issue was filed and a trial had, resulting in a verdict in favor of plaintiffs for $5000.

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

<p>Appeal from the Circuit Court of McHenry county; the Hon. Theodore D. Murphy, Judge, presiding.</p>

Joseph E. Gaby, Judge, presiding. This was a bill in chancenr, by Eber C. Preble, against Crayton H. Conger, Nathan H. Walworth, George B. Boberts, Morton B. Hull and Boswell H. Morgan, to enjoin Conger, Walworth & Co. from proceeding against a planing mill and machinery, under a chattel mortgage held by them. Morgan once owned the property, subject to a chattel mortgage thereon to Jacob B. Shepherd & Co. for $7500.

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

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding.</p>

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

^B This was an action of covenant by the appellees against the appellant.

Chables H. Wood, Judge, presiding. This was an action of trespass, brought by Michael Vogel and Mary Vogel, his wife, against the appellants, for an assault and battery, and other personal injury, alleged to have been committed upon the person of Mary Vogel, which resulted in a verdict and judgment in favor of appellees for $1112.50.

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

<p>1. Former, decision. In McLaughlin v. Thompson, 55 Ill. 249, this court held the tax title void, because the judgment under which the sale was had included a county tax levied by the county commissioners’ court at its June term, 1845, while the act approved March 3, 1845, required it be levied at the March term. That decision was made under the misapprehension that the act referred to was then in force, whereas it. did not take effect until September 10,1845. The tax sale was therefore not invalid on that ground.</p> <p>2. Tax title—copy of advertisement and ceHificate of publication must be filed with report. On the trial of an action of ejectment, the plaintiff offered in evidence a deed made for the land on a sale in 1846 for the taxes of 1845. The collector’s report was also offered, but it did not appeal- that the collector filed in the court in which he applied for judgment, with his report, a copy of the advertisement of the lands and a certificate of its due publication as required by the statute: Held, this was essential to the validity of the tax title.</p> <p>3. Same preliminary proof to enable party to question tan title. Where a defendant is in the possession of land with a claim of title, this will be sufficient to bring him within the requirements of section 73 of the revenue act of 1845, and enable him to question the title acquired by a collector’s deed.</p> <p>4. Error—in admission of evidence. When the court improperly or erroneously admits evidence to prove a certain fact already established or immaterial, and no prejudice- could have resulted from it, this court will not reverse for that cause.</p> <p>5. Limitation oe 1839—sufficiency of proof of possession. A plaintiff, relying upon a title claimed to have been acquired by virtue of the limitation provided in the first section of the act of 1839, after proving payment of taxes for seven years, in order to show a corresponding possession, proved that in March, 1855, a small house was put upon the land by his procurement, and occupied by a person who paid no rent, and that in February, 1858, the house was moved to adjoining land; that in 1857 the plaintiff, with other persons, had a sub-division of the land made into lots and blocks, the land platted and stakes set in the ground. It also appeared that in 1858 a person, acting for the owners of the other title, commenced breaking the land, placed a house thereon and leased it to a tenant, who occupied the same; that plaintiff induced the party to stop breaking for a while, but that he afterwards improved most of the land, claiming adversely to the plaintiff: Held, that the proof came far short of showing an actual possession by the plaintiff for seven successive years.</p> <p>6. Evidence—exclusion of, when no error. The exclusion or admission of evidence which works no injury to the party complaining, at most, can only be regarded as an immaterial error.</p>

<p>1. Chattel mortgage&emdash;;foreclosure&emdash;whether valid as to creditors of mortgagor. On the day the debt secured by a chattel mortgage became due, the mortgagee placed the mortgage in the hands of a constable to foreclose, who took possession of the property on the same day, and placed it in the hands of a custodian, in a room in the house of the mortgagor, who surrendered the keys. The custodian remained in the room with the goods nighty and day until they were attached by a creditor of the mortgagor, except that he was absent not more than fifteen or twenty minutes, when the levy was made. At the time of the levy, the custodian had the keys with him, and had temporarily left a boy of the mortgagor in charge to watch the goods. It did not appear that this boy had ever before been in the possession or control of the goods while in his master’s employment: Held, that the temporary absence of the custodian, leaving the goods in charge of the boy, did not amount to a restoration of the possession to the mortgagor, so as to render the transaction fraudulent as to creditors, etc., and subject the properly to the levy.</p> <p>2. Evidence—hearsay. Where the custodian in the charge and possession of goods taken under a chattel mortgage left them for a few minutes only with a boy in the employment of the mortgagor, during which time the sheriff seized them under an attachment against the mortgagor, in an action of replevin by the mortgagee to recover possession, the court below admitted evidence of what the boy said when the levy was made: Held, that such declarations were hearsay, and not admissible, as the boy was a competent witness.</p>

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

William W. Heaton, Judge, presiding. This was an action of assumpsit, by the appellee against the appellant, to recover for work and labor done on a side track of appellant’s railroad.

Writ of Error to the Circuit Court of Henry county; the Hon. George W. Pleasants, Judge, presiding. This was an action upon a promissory note, which was signed by Alden Booth as security for Lyman Booth. Alden Booth pleaded the fact of his suretyship, and that the plaintiff, after the maturity of the note, extended its time of payment.

<p>1. Witness&emdash;competency. On the trial of a claim, by a son against the estate of his deceased father, the administrator offered two other sons of the' deceased, who were co-heirs with the claimant, as witnesses, but the court below refused to allow them to testify: Held, that the court erred, as they were competent witnesses under the act of 1867.</p> <p>2. Statute&emdash;construed&emdash;witness' competency. The design of the eighth section of the act of 1867, relating to the competency of witnesses, which provides that nothing in that act should affect the laws existing relating to the settlement of estates, was to continue in force the law allowing claimants to prove their demands by their own oath, where the administrator does not object, and allowing the right to object and require proof.</p> <p>3. Instruction&emdash;should not leave law question to jury. On the trial of a claim by a son against his father’s estate, the court, at the instance of the plaintiff, instructed the jury, that if they believed from the evidence that plaintiff did certain work on the farm of deceased for which he had not been paid or compensated, “ and that he is lawfully entitled to recover therefor," then they should find for him: Held erroneous, as submitting a question of law to the jury.</p> <p>4. Parent and child&emdash;liability of father for worh fry adult son. Where a son placed a house on his father’s premises, in the lifetime of the latter, it was held, in a suit by the son to recover for the same of his father’s estate, that the son’s right to recover depended upon whether he expected pay therefor at the time-he placed the house on the farm, and the father expected to pay; and that this must be determined from all the evidence in the case. An express contract to pay need not be shown.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge presiding.</p>

<p>Writ of Error to the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.</p>

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

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

<p>Swamp lauds&emdash;pre-emption of. Where the selection of swamp lands, under the act of Congress of September 28,1850, had been approved by the officers of the government, and a patent issued to the State therefor under the act of Congress approved March 8,1857, although the patent was not in fact issued until July 11,1866: Held, that the patent related back at least to the date of the approval of the selection, and consequently the lands embraced in such transfer, whether in fact swamp land or upland, were not subject to pre-emption after that date, as the United States had parted with its title.</p>

Erasttjs S. Williams, Judge, presiding. This was a bill in chancery, filed by the appellant against the appellee, for an injunction to restrain the appellee from violating an agreement relating to the practice of medicine, which is sufficiently stated in the opinion of the court. The bill was dismissed, and the cause brought to this court by appeal.

Sabin D. Puterbaugh, Judge, presiding. This was-an action on the case, by the. appellee against the appellant, to recover for injuries received at a public crossing on the track of defendant’s road in the city of Peoria, on May 18, 1871. The injury'was caused by the engine of one of defendant’s trains colliding with plaintiff’s team as he was crossing the track, which resulted in throwing plaintiff under the engine, when his hand was torn off.

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

<p>1. Extinguishment ob payment, by operation' of km—purchase of firm note by a partner. Where the note of an unincorporated company was by the payee indorsed to one of the partners composing the company, and by him to the plaintiff, it was insisted that the transfer to one of the makers operated in law as a payment or extinguishment of the note, and consequently that the latter could not transfer to the plaintiff any right of action: Held, that the case turned upon the question whether there was a payment in fact, or a purchase, and that it could not be adjudged a payment or extinguishment if it were not so intended at the time.</p> <p>2. Pabtxebship—pm’tner'may purchase obligations on his firm. One partner may invest his private means in the purchase of partnership securities, and hold them as valid obligations; and the fact that such partner can not enforce such obligations against his firm in a court of law, for the reason that he can not be both plaintiff and defendant, is a difficulty-affecting the remedy only, and not the right; and when he indorses such negotiable securities to a third person not subject to such exception, the difficulty, even as to the remedy, ceases, and such person may maintain an action on the same.</p>

Joseph Gillespie, Judge, presiding. This was ah action of trespass for false imprisonment, brought by James Donelly against William E. Smith. The facts necessary to an understanding of the case are contained in the opinion. The jury found the defendant guilty, and assessed plaintiff’s damages at $250, upon which judgment was rendered, and the defendant appealed.

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

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

Writ of Error to the Circuit Court of Sangamon county; the Hon. John A. McClern and, Judge, presiding. This was an action of debt, upon an award, brought by George B. Richardson against Uriah Mann and Daniel Bailey.

<p>Appeal from the Circuit Court of Madison county; the Hon. Joseph Gillespie, Judge, presiding</p> <p>It appears, upon the face of the bill filed by the appellees, that they are surviving partners of Arba Nelson, deceased, who died February 6,1871, leaving appellant, Charlotte Nelson, his widow, but no children, surviving him; that he left a last will and testament, by which he appointed appellee John E. Hayner, and one Whipple, executors; that the will had been admitted to probate, and letters testamentary issued to the executors named, who had assumed the duties of administration ; that, at the time of his death, Arba Nelson was a member and owner of one-half of the capital stock in one firm dealing in agricultural implements, saddlery and hardware, of which his co-partners were the said Hayner, appellee, Albert H. Drury, and Luther K. Drury ; that deceased was, at his death, member of another firm doing business as dealers in iron and hardware, of which the co-partners were said Hayner and appellees Wise, Blake and Johnson. He was, likewise, owner of half the stock of this firm; that appellees and Luther K. Drury, as surviving partners, had made inventories of all the stock belonging to said respective firms on hand at the death of Nelson, and had the same appraised according to the statute, which inventories and appraisement bill had been filed in the probate court; that, by such appraisement, the value of the interest in the stock of both said firms was found to be $34,061.98; that, on the 16th of February, 1871, appellees having organized themselves into a new firm, under the name and style of John E. Hayner & Co., such new firm purchased from the aforesaid surviving partners all the entire stock in trade of said former firms respectively ; that they purchased the same at ten per cent less than the appraised value of the same, on the terms following: to be paid in four equal installments, in six, twelve, eighteen and twenty-four months from the time of such purchase, and that the share of said Arba Nelson in the proceeds of said sale amounted to the sum of $30,655.79. The bill then avers that, on account of the situation and character of the stock in trade of the respective firms aforesaid, the same could not have been sold by the surviving partners, either at retail or by public sale, in parcels or in gross, without a very great and ruinous sacrifice, and that the price paid by complainants is much more than could have been realized from the sale of said property in any other way or manner; and that, under the circumstances, no better disposition could have been made of the said property for the interest of all parties. The bill makes appellant, the widow, the executors and Luther K. Drury parties defendant, and prays for a decree confirming said sale, and that the title and possession of the property be established in complainants.</p> <p>The widow answered, denying the alleged sale, also the right of the surviving partners, etc., to sell to themselves, and insisted that, at all events, they should have taken Nelson’s interest at the appraised value.</p> <p>Luther K. Drury answered,'John E: Hayner and Whipple, the executors, made default, replication was filed to answers, and the case heard upon pleadings and proofs. The court rendered a decree declaring said sale valid, and establishing title and possession of the property in complainants. From this decree the widow, Charlotte Nelson, took an appeal to this court.</p>

<p>Negligence—omission to ring bell or sound whistle at crossing. In an action against a railroad company to recover for the killing of a mule, it appeared that the plaintiff’s gate was broken open in the night, so thfct his mule escaped and got upon defendant’s track, where it was killed by a passing train;- that the train passed over two public streets in the village without ringing a bell or sounding a whistle, as required by the statute, just before reaching the mule, and that the only signal given, was that something was upon the track, which frightened the mule and caused it to run, but the train was then too near it to be checked so as to avoid the collision, and it appeared from this, that if the statute had been complied with the animal would probably have escaped: Held, that the company was liable.</p>

<p>1. Amendment—of proms not under seal. Where a motion is made to quash a common law writ of certiorari, because not under the seal of the court, the court may, under the statute of amendments, on cross-motion for that purpose, allow the writ to be amended by adding the seal of the court thereto.</p> <p>2. Highways—legality of order levying out. Where copies of a petition for laying out a road were duly posted on March 14,1870, and the commissioners of highways did not cause a survey of the road to be made until June 19,1871, and on June 24,1871, they deposited with the town clerk an order establishing the road-, in which it was recited, that on April 13,1870, they examined the proposed, route and determined to lay out the road: Held, that the delay in causing the survey to be made, and in making the order and depositing it with the town clerk, was unreasonable, and that thereby the commissioners lost jurisdiction to establish the road, and that their order was properly quashed on certiorcvt'i.</p>

<p>Evidence—to prove'a.former recovery. On the trial of an action of replevin, where the plaintiff claimed the property as bailee of his father, the defendant, in order to show a former suit by the father against him for the same property, in which the plaintiff was defeated, was permitted to prove the minutes on the judge’s docket, and the verdict, which was not guilty, without offering the record proper, or any judgment: Held, that the minutes of the judge were not admissible to prove the proceedings in the prior suit, and that the verdict availed nothing without a judgment,</p>

<p>1. Bastabdy bond—what is a breach of. Where one on a charge of bastardy entered into a bond for his appearance at the next term of$ the circuit court to answer the charge, which provided that he should “ not depart the court without leave,” and he fled without leave, after a trial was had finding him guilty and requiring him to give security: Held, that this was manifestly a breach of the condition of the bond.</p> <p>2. Same—void if not mdei' seal. The statute requiring a bond to be taken for the appearance of the defendant in a prosecution for bastardy, k writing without a scroll or other indication of a seal is not a compliance with the law, and is not binding upon the obligors.</p> <p>3. Bond—what is. A bond is defined to be a deed, and the word, ex vi twmini, imports a sealed instrument. The fact that the writing contains the words “ sealed with my seal,” etc., when there is no seal or scroll attached, will not make it a bond or sealed instrument.</p> <p>4. Yabiance—oyer aeid demv/rrer for. Where an action of debt is brought upon an instrument which is declared on as a bond or sealed instrument, and the writing produced on oyer has no seal, the variance is fatal and may be taken advantage of on demurrer.</p>

Appeal.from the Circuit Court of Morgan county; the Hon. Charles D. Hodges, Judge, presiding. This action was originally brought before a justice of the peace, by C. O. Chapin, the appellee, against the Toledo, Wabash and Western Eailway Company, to recover for the killing of a cow, and taken by appeal to the circuit court, where a trial was had, resulting in a verdict and judgment in favor of the plaintiff for $81.75.

This was an application in this court by Richard G. Mon-tony, the relator, against the city council of the city of Elgin and the treasurer thereof, for a mandamus to compel the payment of his salary as judge of the court of common pleas of the city of Elgin. It appeared, also, that it was his duty as judge to hold a similar court in the city of Aurora. The other facts are stated in the opinion.

Charles D. Hodges, Judge, presiding. This was a proceeding, commenced by the appellant against the appellee, to condemn a strip of land for a right of way.

<p>Writ op Error to the Circuit Court of Tazewell county; the Hon. Charles Turner, Judge, presiding.</p>

<p>Promissory note—waiver of penalty in. Where the payee of a promissory note which contained a clause that if the sum therein mentioned was not paid when due, the maker should pay thereon five per cent per month as damages, from its maturity, and the payee, from time to time after its maturity, accepted interest thereon at ten per cent per annum, until the death of the maker: Held, that the acceptance of the interest evidenced an agreement to waive the damages, which were in the nature of a penalty, and take ten per cent interest in lieu thereof, and that the payee could not thereafter recover the penalty.</p>

Chauncey L. Higbee, Judge, presiding. This was a bill in chancery, by Adam Hageman, against John Ewald, Elizabeth Ewald, James Manly, Abner E. Barns, Rebecca Barns, and Thomas T. Bybee, to foreclose a mortgage on the premises described in the opinion, executed to the complainant by Ewald and wife.

Writ oe Error to the Circuit Court of Ford county; the Hon. A. J. Gallagher, Judge, presiding. This was an action, by the plaintiff in error, against the defendant in error, upon a promissory note and upon an account. The defendant below pleaded the general issue, set-off, non est factum, and coverture. There was a trial had, which resulted in a verdict and judgment in favor of the defendant below.

<p>Clerical error—in decree—no ground for reversal. Where a decree of foreclosure of a mortgage found that the note and mortgage were dated June 20,1868, instead of 1867, their true date, and it appeared from the proofs and the record that such recital was clearly a clerical error: Held, .that the error being one which worked no injury, and one that might be corrected in the court below on motion, it afforded no sufficient ground for reversing the decree.</p>

<p>Negujobnce—in not slackening speed of train to save stock. Where the evidence, on the trial of an action against a railroad company for killing a colt, tended to show that the colt ran on the track in front of an advancing train, before it was struck and killed, for a distance of twenty-five or thirty rods, and the track was straight, so that the engine driver, by the exercise of reasonable diligence, could have discovered it in time to have slackened the speed of the train so as to have avoided the accident, a verdict, finding the company liable for the value of the colt, may be properly found, notwithstanding the evidence is conflicting.</p>

Charles D. Hodges, Judge, presiding. This was an action on the case, by the appellee against the appellant. The declaration alleged that the plaintiff’s wagon was run over and destroyed whole carefully being driven along Main street, in the city of Jacksonville, by the cars of the defendant; that said cars were managed negligently, and that no whistle was sounded or bell rung to warn plaintiff. The general issue was filed and a trial had before the court without a jury.

<p>Appeal from the Circuit Court of Morgan county; the Hon. Chables D. Hodges, Judge, presiding.</p> <p>This was a bill in chancery, by James Q. Palmer against David M. Bethard, Charles Sample and Benjamin Pyatt, to enjoin the collection of a judgment in favor of Bethard against complainant. The facts appear in the- opinion.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Charles D. Hodges, Judge, presiding.</p> <p>This was an action of assumpsit, by James Morrison against Jerial Wilday, Alexander Wilday and Charles Wilday, upon a promissory note dated January 1, 1859, payable one year after date, with ten per cent interest after maturity. The credits indorsed on the note were, June 25, 1859, $25; Jan. 1, 1864, $2000; on same day, $1332; Dec. 18, 1867, $1000; Oct. 1866, $10, and Feb. 20, 1868, $92. Judgment was rendered against the defendants Dec. 18, 1872, for the sum of $6153.60, and they appealed.</p>

James Steele, Judge, presiding. This was an action of debt on a replevin bond, brought by Henry M. Swisher, for the use of William C. Walker, against Charles Bodine and Jacob Mason. On a trial, the jury returned the following verdict: “We, the jury, find for the plaintiff, and assess the damages at $850, with six per cent interest from the date of the bond, making in all $994.50.” Tlponthis verdict judgment was rendered for $2000 debt, and damages $994.50, and costs of suit.

<p>Evidence. Where two of the makers of a promissory note to the trustees of schools for money borrowed by them, the note being payable twelve months after date, testified to its-payment to the treasurer one month after its date, he being in a wagon on the public road, and the proof showed that at the time fixed by one of them for the payment, the treasurer was confined to his bed by sickness, and that he was dead some weeks before the time fixed by the other, and tire proof also showing that these makers were at the time pressed for money, and that they gave a mortgage, over two months after the time of the alleged payment, to their surety, to indemnify him against the payment of this and another note: Held, that the jury were justified in finding that the note had not been paid.</p>

<p>1. Injunction bond—disobeying writ does not defeat an action on the bond. In a suit upon an injunction bond, to recover as damages the expenses and costs incurred in defending the injunction proceeding, which was to enjoin the plaintiffs from selling or disposing of certain lands, it appeared that the plaintiff, before the dissolution of the injunction, disobeyed the-writ by selling the lands: Held, that, by such disobedience of the mandate of the writ, the parties became amenable to the action of the court for a contempt, but that the same did not operate to defeat their right of action for a breach of the conditions of the bond, to recover such damages as they had actually sustained.</p> <p>3. Same—not subject to rules applicable to contracts. An injunction bond is an undertaking to which the obligees are unwilling parties, and is not a contract of their making. By it, they do not undertake that they will obey the writ. Hence, the strict rules applicable to contracts mutually entered into, which prohibit the party violating his contract from maintaining an action on the same, has no application to such a bond.</p>

Weit op Error to the Circuit Court of Randolph county; the Hon. Silas L. Bryan, Judge, presiding. This was an action on the case, by Charles J. Childs against James Earn an, for slander. The defendant pleaded the general issue, and several pleas justifying the speaking of the words charged in the several counts of the declaration. A trial was had, resulting in a verdict and judgment in favor of- the plaintiff for $475. The defendant appealed.

<p>1. Continuance—amendment of declaration. Where the plaintiff’s original declaration, filed in apt time, contained a good cause of action, and was good upon general demurrer, it was held, that an amendment not necessary to the cause of action, and not changing it, but which was superinduced by the court erroneously sustaining a demurrer thereto, afforded no cause for a continuance at the instance of the defendant.</p> <p>2. Neglisence—killing stock hy engine—declaration. A declaration, in an action to recover damages of a railroad company for killing a horse, in substance, alleged that the defendant was the owner of the railroad, and operating it by running locomotives and trains thereon; that plaintiff’s horse strayed and got upon the defendant’s railroad, and that the defendant, by its servants, so carelessly, negligently and improperly run, conducted and directed the locomotive and train of the defendant, as that said locomotive struck plaintiff’s horse with great force and violence and killed it: field, that the declaration showed a good cause of action at common law.</p> <p>3. Same—statement of, inpleading. In pleading, the averment of negligence is sufficient to admit proof of gross negligence; and, on demurrer, an averment of negligence is equivalent to whatever degree of negligence is necessary to sustain the pleading. Thus, it is a matter of common practice to allow a plaintiff, who has simply averred negligence, where there is proof of contributory negligence on his part, to prove gross negligence in the defendant, and recover under such declaration.</p> <p>4. Same—neglect to fence road. Where stock is killed by a railroad company which has neglected to fence its track in the time prescribed, the owner of such stock may elect, according to the facts of the case, to base his action upon the statute of1855, or upon the common law grounds of negligence.</p> <p>5. To recover upon the statutory liability, the declaration must state facts which bring the case substantially within the provisions of the statute, and the plaintiff is not bound to show that there was negligence in the management of the locomotive or train which was the immediate cause of the injury.</p> <p>6. Sam:e—surplusage in pleading. As a railroad company is liable for gross negligence resulting in the destruction of a plaintiff’s property, irrespective of the question of the erection of fences, where the declaration charges negligence, as at common law, all allegations respecting the want of'sufficient fences may be rejected as surplusage, anda recovery had upon the common law liability.</p>