Volume 67 — Illinois Reports

<p>Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p> <p>This was an information in the nature of a quo warranto on the relation of Gustavus Koerner, Eichard P. Morgan, Jr., and David S. Hammond, railroad and warehouse commissioners, against the Chicago and Alton Eailroad Company, to have a forfeiture of its franchises declared for the reasons given in the opinion of the court. The court below rendered judgment of ouster against the company, from which this appeal was taken.</p>

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

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Charles D. Hodges, Judge, presiding.</p> <p>This was a bill in chancery, by defendant in error against plaintiffs in error, to enforce a lien reserved for the purchase money of land.</p> <p>It appeared that Joseph M. Tellis, one of the defendants, together with his wife, conveyed certain lands to Samuel Markoe for the consideration of $3600, of which sum $1100 was paid down, and a promissory note executed for the remaining $2500, payable in three years, with eight per cent interest till due, and ten per cent after due. The note recited that it “ is secured by vendor’s lien on real estate, duly stamped.” Tellis assigned this note to defendant in error. The deed from Tellis and wife to Markoe, after the description of the lands, contained this provision : “Reserving a full and perfect vendor’s lien to secure the deferred payment of twenty-five hundred dollars, due three years after this date, etc., (describing note,) with the privilege to the maker to pay said note before maturity, with interest to day of payment. And Edward P. Kirby is hereby authorized, as our attorney in fact, to release, and enter satisfied this lien, on the payment of the money, as fully as we could if present.”</p>

<p>Appeal from the Circuit Court of Morgan county; the-Hon. Charles D. Hodges, Judge, presiding.</p> <p>This was a suit brought by the city of Jacksonville against the Toledo, Wabash and Western Eailway Company, before a justice of the peace, to recover a penalty for a violation of the ordinance of the city referred to in the opinion of the court. The cause was taken to the circuit court by appeal, where a trial was had before the court, without a jury. The court found the defendant guilty, and rendered judgment in favor of the plaintiff for $50. The defendant appealed.</p>

<p>1. Insurance—insurable interest—outstanding equity. Where the purchaser of real property has received a deed therefor investing him with the legal title, the fact that he practiced a fraud upon his vendor as to the consideration, on account of which his conveyance was subsequently set aside in equity at the suit of his vendor, will not defeat a recovery on a policy of insurance effected by him on the property before his title was set aside. The conveyance not being void, hut only voidable, the grantee had an insurable interest, and his title was not conditional as to the insurer.</p> <p>3. Same—not affected by fraud on third party. An insurance company can not avoid its contract of insurance by impeaching the mode by which the assured obtained the title to the property insured, or in other words, by setting up a fraud committed upon third parties. If the deed of the assured is void for fraud in its execution, a different consequence would follow.</p> <p>3. Parties at law—action, on insurance policy. Where a party, through fraud in the consideration, obtained the legal title to certain premises, and effected an insurance upon the buildings in his name, and his title was afterwards set aside in equity at the instance of his vendor, it was held, that an action at law on the policy to recover for a loss by fire, pending the litigation, was properly brought in the name of the assured, hut that as between him and his vendor, the insurance money represented the property destroyed.</p>

<p>1. Administration—letters of, not rendered void by ike subsequent pro-late of a will. Where the will of a deceased person, when offered for probate, was rejected, and .no appeal being taken, the county court, upon a proper application, granted letters of administration upon the estate, under which the administrator paid off claims and made a partial distribution of the estate to the heirs, after which the will was again presented, and after protracted litigation, was probated: Held, that the letters of administration were not void, but only voidable, and not being void, they were a protection to the administrator for all lawful acts done by him under them before their revocation.</p> <p>3. Same—effect of probate as between legatees and distributees. Where the will of a deceased party is admitted to probate, after a partial settlement of the estate by the administrator, and payment of distributive shares to the heirs at law, in a contest between the distributees and legatees, the right of the latter, as conferred by the will, would probably prevail. But, as between the executor of the will and the administrator, the latter will be protected in the payments made by him to the distributees while his letters were unrevoked.</p> <p>3. Same—whether administrator is cha/rgedble with interest on moneys in his hands. Where, after the grant of administration upon the estate of a deceased person, the will of the deceased was offered for probate and allowed, after several years’ litigation, and letters testamentary issued to the executor, and it appeared that the money of the estate, in the hands of the administrator, was always ready to be paid whenever a proper person was appointed to receive it: Held, that the executor was not entitled to interest on the sum due him from the administrator.</p> <p>4. Same—cost of contesting will not a charge against the estate. An administrator of an estate, being under no legal obligation, as such, to contest the validity of a will of the decedent, will not be entitled to deduct, from funds in his hands, moneys paid by him to attorneys for such purpose. The legatees, under the will, can not be compelled to pay any part of fees for litigation in opposition to their interests.</p> <p>5. Statute construed—section 71, statute of wills. The object of the last clause of section 71 of the Statute of Wills, in providing that there shall not be an administration de bonis non upon the revocation of letters of administration, where a will is subsequently probated, was, to maintain and carry out the intention of the testator so far as it could be done, and thus secure the rights of the legatees.</p>

<p>1. Homestead—not protected against sale under deed of trust under act of 1851. Where a deed of trust was executed, in 1853, by the husband, of his homestead, his wife not joining therein, and the premises sold and conveyed by the trustee, it was held that a homestead could not be asserted in defense of an action of ejectment by the purchaser.</p> <p>3. Same—act of 1851 construed. The homestead act of 1851 exempted homesteads only “ from levy and forced sale under any process or order from any court of law or equity,” but not from sale under a power given in a deed of trust. The amendatory act of 1857 has no application to mortgages and deeds of trust executed before it took eifect.</p> <p>3. Acknowledgment. Where a deed acknowledged in the State of Missouri, for lands in this State, is acknowledged in conformity to the laws of this State, it is admissible in evidence in our courts.</p> <p>4. Same—confirmatory act of 1853. The confirmatory act of 1853 which requires the certificate of acknowledgment to show that the deed was executed “freely and voluntarily,” relates to deeds' made by husband and wife, and has no application to a deed made by a trustee under a power in a deed of trust.</p> <p>5. WTrere the certificate of the acknowledgment of a deed made in 1859, states that the grantor acknowledged the deed “to be his act and deed for the purpose therein mentioned,” it will be a sufficient acknowledgment.</p> <p>6. Trustees’ sale—defense at lorn against. On the trial of an action of ejectment, a deed made by a trustee under a power in a deed of trust, can not be excluded or the sale impeached on the ground that the notice of the sale had not been given for the requisite length of time. It is sufficient to pass the legal title, and whether in compliance with the provisions of the trust deed or not, is not a subject of inquiry jn a court of law.</p>

<p>1. Curtesy. Where a wife died in April, 1872, in the possession of real estate under a quit-claim deed, children having been born alive during the marriage, it was held, that the life estate of the husband by the curtesy became consummate, and a recovery by him in ejectment against his children, the heirs at law of the deceased wife, was sustained.</p> <p>2. Ihhebitable estate—evidence of. The possession of a wife of real estate under a quit-claim deed purporting to convey the title as between the parties, is of itself evidence of an inheritable estate in her.</p> <p>3. Homestead—by children as against father claiming by the curtesy. Where the husband succeeded to an estate by the curtesy in the homestead of his wife upon her death, before the act of 1872 took effect, the question of homestead right in favor of the minor heirs of the wife can not arise as against him, and he may recover in ejectment against the heirs.</p>

<p>This was an application in this court by the Gilman, Clinton and Springfield Railroad Company, against the supervisor and town clerk of the town of Santa Anna, to issue and deliver to the company $25,000 in the bonds of the town, in pursuance of an election on the question and the subscription by the supervisor. The facts appear in the opinion of the court.</p>

<p>1. Municipal subscription—whether the vote should fix the time the bonds shall run. Where the law authorizing corporate subscriptions in aid of a railroad is silent as to what the petition for and notice of the election shall contain as to the length of time the corporate bonds shall run before their maturity, and the election is called according to law, it will not be essential to the validity of the election that the petition, notice of the election and vote of the people should fix the time when the bonds will mature.</p> <p>2. In such a case, if the petition and notice had fixed the time the bonds of the township should run, it would have become, by the vote by which their issue was authorized, a condition that the supervisor could not disregard. But where the vote simply authorized the issue of bonds to a certain amount, the supervisor was left to fix the time they should run within the limitations of the law under which the vote was taken.</p> <p>3. Same—where a majority vote is sufficient. Where the law, under which an election is had on the question of corporate subscription to a railroad, required only that a majority of the legal voters of the municipality voting at such election should vote in favor of the proposed subscription: Held, that it was not essential that a majority of all the legal voters should vote for the proposition; but that it was sufficient that a majority of legal voters voting should so vote.</p> <p>4. Same—enforced by mandamus. Where the statute has been pursued in all its requirements, the election properly called, a proper notice thereof given, and an election held resulting in favor of a subscription by a township to the capital stock of a railroad company by a majority of the voters, as required by the statute governing in such case, and the railroad company has complied with all the conditions imposed, the company will be entitled to the bonds so voted, and their issue will be enforced by mandamus.</p>

<p>1. Municipal subscription—election must be conducted in the manner prescribed. Where the charter of a railroad company authorizing corporate subscriptions, provided that “all elections had under or by virtue of this act shall be taken and held to be general elections, and conducted in the same manner as provided by the laws of this State for general elections: ” Held, that an election held by a township for the purpose of determining whether such township would subscribe to the capital stock of such company, which was conducted in the same manner as town meetings, by a moderator and the town clerk, instead of there being three judges and two clerks of the election, and when the moderator and clerk were not sworn, and there being no registry prior to such election, was not in compliance with the law, and that an affirmative vote at such election conferred no authority for a subscription.</p> <p>2. Had the act of the legislature been silent as to the manner of holding and conducting the election, then it might have been conducted in the manner prescribed by the law of the organization of the body in which it was held.</p>

<p>1. TTeslibeitce—degree of ca/re required to prevent injury by communicatingfire. While it is lawful for railroad corporations to use steam as a motive power, and to generate the same by fire, the law holds them to the exercise of a very high degree of care and skill in the use of these dangerous and most effective appliances, to prevent the emission of fire sparks from their engines, and in the employment and retention of servants in charge of them, so as to prevent loss to property. Where they have exercised the highest degree of care and skill in this respect, if loss occurs it must fall upon the owner.</p> <p>2. Same—railroads, not insurers against injury by fire. In an action against a railway company to recover for a warehouse burned by the emission of sparks from one of its engines, the court, at the instance of the plaintiff, charged the jury that, “ it is the duty of the defendant, and was its duty, to operate its engines and locomotives and run the same so as to guard against any accident by fire, and to employ such machinery and other agencies for safety to property as might be necessary to avoid accidental destruction, whether such machinery was then in common use, or not, on railroadsHeld,, that the instruction was erroneous, as the principle it announces would make the defendant a guarantor or insurer against accidents by fire.</p> <p>3. Saaie—escape of fire is only prima facie evidence of negligence. In the same case the court instructed the jury that if the destruction of the plaintiff’s warehouse was caused by fire escaping from the engine of the defendant while being operated by its servants, such escape of fire is, of itself, evidence of negligence on the part of the defendant: Held, that the instruction ought to have been qualified before being given, as the statute only makes such fact prima facie evidence of negligence—not conclusive.</p> <p>4. Instructions—whether/' error in one is cured by another. 'Where one instruction states the defendant’s liability more strongly than the law war. rants, and another of the series states it correctly, if that were the only error, and the instructions were upon minor points, this court would probably not reverse; but where the two instructions relate to the vital point in issue, they are calculated to confuse the jury, and the latter instruction will not cure the error.</p>

<p>1. Negligence—as to duty of ringing bell, etc. In a suit to recover damages from a railroad company for injuries caused by a collision with the company’s train, the court instructed the jury, on the part of the plaintiff, “ that railroad companies are bound, in crossing public highways, to have a bell of at least thirty pounds weight, or a steam whistle, placed on each locomotive engine, which shall he rung or whistled at the distance of at least eighty rods from the place where the railroad crosses any public street or highway, and which shall be kept ringing or whistling until such street or highway is reached, so as to apprise persons of their approach Held, that the instruction did not state the law correctly, the words italicized requiring a higher duty than the statute imposes.</p> <p>2. In the same case, the court, on behalf of the plaintiff, instructed the jury, “ that if they believe, from the evidence, that a bell was not rung, or the whistle not sounded, at a distance of eighty rods from the crossing, and kept ringing or -whistling till the crossing was reached, and the plaintiff teas lulled into security by the reason of such neglect on the part of the defendant, then the plaintiff would have the right to recover, even though he were guilty of slight negligence: ” Held, that the instruction was erroneous and calculated to mislead, as it omits to submit the question whether, the injury was sustained by reason of the neglect to ring the hell or sound the whistle and continue the same until the highway was reached.</p>

Joseph Sibley, Judge, presiding. This was an action of assumpsit, by William Sigsbee against William S. Linn, to recover damages for resuming the practice of medicine in violation of an agreement previously entered into between them. The following is a copy of the first count of the plaintiff’s declaration, which shows the facts of the case.

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

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

<p>1. Fbaud and circumvention. Where a party is induced to sign a promissory note under the representation and belief that the same is an agreement appointing him agent for the sale of machines, and a statement of his ownership of property, and he can not read writing readily, as between the parties it will be void, as having been executed through fraud and circumvention.</p> <p>2. Same—diligence and cwre required to defeat a recove/ryin the hands of an innocent assignee before due. Where a person executes a note he must be diligent and use all reasonable means to prevent a fraud being practiced upon him, or he will be liable to an innocent purchaser before maturity. He is not required to use every possible precaution, but only such as would be expected from men of ordinary prudence.</p> <p>8. Same—reasonable care must be observed by assignee of such note. The assignee, equally with the maker of a note, is bound to use proper diligence, and when agents for the sale of patent rights and such matters, who are strangers, offer to sell promissory notes taken by them, a prudent man would have his suspicions aroused, and in such case the purchaser ought to protect himself by inquiring of the .apparent maker.</p> <p>4. When the defendant was procured to sign what turned out to be a promissory note, under the assurance that he was signing an agreement respecting his agency to sell machinery, and of his pecuniary ability, he not being able to read writing readily, and the proof showed that he did not sign the same recklessly, but commenced to read the papers he signed, and was prevented by the restiveness of his team in the field where he was plowing : Held, that a verdict finding that the execution of the note was procured through fraud and circumvention, in a suit by an assignee before maturity, was not against the preponderance of the evidence.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. Lambert Tree, Judge, presiding.

Chables Tuenee, Judge, presiding. This was a petition in chancery, by Louisa Plaster against Jeptha Plaster, her former husband, for additional alimony for the expenses incurred in supporting their infant son. The circuit court decreed the payment of $400. The petitioner had before obtained a decree of divorce in which the custody of the child was awarded to her.

<p>Writ of Error to the Circuit Court of Logan county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

Thomas F. Tipton, Judge, presiding. This was an action of debt, by Flavius J. Briggs against William G. Witherow, John M. Harvey and Henry C. Sholty, upon the note set forth in the opinion.

Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, upon a promissory note by Philo W. Peek against Parker C. Pusey. The defendant pleaded twojspecial pleas.

Charles Turner, Judge, presiding. This was a proceeding commenced by the appellant against appellee, to condemn land for right of way. After the institution of the proceeding, and before the assessment of damages, the act of 1872, relating to right of way, took effect.

<p>Constitutional law—abrogation of special lams increasing jurisdiction of justices of the peace, etc. The 21st section of art. 6 of the constitution of 1870 reduced the jurisdiction of all justices of the peace and police magistrates to the uniform jurisdiction conferred on such officers by the general laws of the State, and thus rendered their jurisdiction uniform, and abrogated the special jurisdiction conferred by local or special laws.</p>

Joseph Sibley, Judge, presiding. This was an action brought by the town of Carthage against the appellant, before the police magistrate, 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 §100.

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

Thomas F. Tipton, Judge, presiding. • • This was an action of trespass quare clausum fregit, by William Rabe against Richard Osborn, for entering plaintiff’s close and digging up and carrying away trees, and shrubs growing upon the plaintiff’s land in a nursery. The defendant justified under two writs of execution against the plaintiff.

Chauncey L. Higbee, Judge, presiding. This was an action brought by D. C. Linn, against the Eockford, Eock Island and St. Louis Eailroad Company, before a justice of the peace, for the killing of plaintiff’s mare by the defendant’s train. The cause was taken to the circuit court by appeal, where a trial was had, resulting in a verdict and judgment in favor of the plaintiff for $80 and costs. The defendant appealed. The facts of the case are stated in the opinion of the court.

Joseph Sibley, Judge, presiding. This was an action commenced by John T. Haggerty against the Chicago, Burlington and Quincy Railroad Com-, panv, before a justice of the peace, to recover the value of a cow killed by defendant’s train within the limits of the town of Camp Point.

Thomas F. Tipton, Judge, presiding. This was an application for a mandamus, by the city of Bloomington against the Chicago and Alton Eailroad Company, to compel the latter to construct a crossing at the intersection of its road with a certain public street. The facts of the case are fully stated in the opinion of the court.

Chauncey L. Higbee, Judge, presiding. This was an action on the case, by Laura A. Dickson and Uriah W. Dickson, her husband, against the appellant, for so sounding the whistle of a locomotive engine attached to a passenger train, nearing Prairie City, McDonough county, Illinois, that the horses driven by the plaintiffs, hitched to a buggy, became frightened and ran away, by means whereof, the plaintiff Laura A. Dickson received certain personal injuries.

<p>1. Chancery—sworn answer as evidence. Where an answer to a bill in chancery is required under oath, so far as it is responsive to the allegations of the bill, it becomes evidence for the defendant, and requires the testimony of two witnesses to overcome it, or of one witness and corroborating circumstances equal to another.</p> <p>2. A party can not file a bill, call for and receive an answer under oath, and evade the eifect of the answer by filing what is called an amended bill, substantially the same as the original, dispensing with a sworn answer, and receive a copy of the previous answer without oath. To allow this, would be to permit him to do indirectly what he could not do directly.</p> <p>3. Partnership—;payment of share of capital stock condition to right to sha/re in proceeds. Where the articles of an association, formed for speculation in real estate, required the ownership of $3000 of the capital stock as a condition to membership, it seems that a party who has failed to pay in such amount on calls, is not entitled to maintain a bill for an account of profits and for partition of lands unsold, especially when he owes the company more than the amount of calls paid in by him.</p> <p>•4. Sale oe land—vendor must perform his agreement to discharge incumbrances. Where the complainant, having title with another to a farm, subject to a heavy incumbrance for purchase money, with such other party sold the same to a land company for the sum it cost them, the vendors agreeing to discharge the incumbrance, and being unable to do so the complainant agreed with the company to pay $1378 which he owed the company on calls of stock, in a few days, and to discharge the balance of the incumbrance, except $5000 thereof, which the company were to assume, and the company accepted a deed under the mistaken belief that he had paid said sum of $1378 on the incumbrance, and paid him and the other owner $1394.80 on the land, and the land was affcerwai-ds sold under the incumbrance and passed redemption: Held, that the complainant having failed to discharge the incumbrance, except as to $5000, could not enforce the contract against the company; that the acceptance of the deed under a misapprehension of fact could not bind the company to complete the contract; and that it was not bound to apply the moneys due the complainant and the other owner in discharge of the incumbrance or in redemption from the sale thereunder.</p> <p>5. Parties in chancery— enforcing sale of land by vendor. Where the complainant seeks by bill in chancery to enforce payment of the purchase money of land sold by him and another, and such other vendor is dead, the representatives of such deceased vendor are necessary parties, as they are equally interested in the transaction.</p> <p>6. Same—defendants—members of association. In a bill by a member of an association formed for speculating in real estate, to i ecover for land sold the company and conveyed to a trustee of the company, and for an account, and partition of the lands unsold remaining in the name of the trustee, the several other members of the company are necessary parties defendant.</p> <p>7. Agency. A trustee or agent of a voluntary association for speculating in lands, in whose name the titles are taken for convenience, can not be held individually liable whilst acting for the company within the scope of his authority, his acts, in that respect, being theirs and not his individually.</p>

James Steele, Judge, presiding. This was an action of trespass, brought by George W. Boyer against James Paxton, for an assault and battery committed upon his person by the defendant. The declaration was in the usual form. The defendant pleaded the general issue, with which was filed a stipulation that all matters might be given in evidence that could be specially pleaded.

Thomas F. Tipton, Judge, presiding. This was an action of replevin, by James Haines, against the United States Express Company, to recover a package of money containing $800 in currency, which the plaintiff' had expressed to his brother in Austin, Nevada. The brother having left Nevada and returned to this State without receiving the money, the plaintiff requested and ordered the defendant to have the same returned to him. The material facts are stated in the- opinion.

<p>Appeal from the County Court of Menard county; the Hon. Colin M. Robinson, Judge, presiding.</p> <p>This was a proceeding instituted by the Springfield and Northwestern Railroad Company against the Chicago and Alton Railroad Company and the St. Louis, Jacksonville and Chicago Railroad Company, to acquire the right of way through-the right of way of the defendant companies, the Chicago and Alt°n Railroad Company occupying and using the road of the latter company under a perpetual lease from the same. The facts of the case appear in the opinion of the court.</p>

<p>Appeal from the Circuit Court of Scott county • the Hon. Charles D. Hodges, Judge, presiding.</p> <p>This was an action on the case, by Daniel and Thomas Lynch, against the Eockford, Eock Island and St. Louis Eailroad Company, to recover damages for the killing of two steers. The declaration counted upon the statutory liability of the defendant, growing out of a neglect to fence its road. The defendant filed the general issue. A trial was had, resulting in a verdict and judgment in favor of the plaintiffs for $110.</p> <p>On the trial, the defendant asked the following instructions, which were refused by the court:</p> <p>“2. The court instructs the jury that, if cattle were killed by the trains upon defendant’s railroad, it is incumbent upon the plaintiffs, suing for damages, to show that the damages were caused by the negligence of the defendant, and if plaintiffs have failed to prove such negligence as they have charged in the declaration, they should find for defendant.</p> <p>“3. That, although the jury may believe, from the evidence, that defendant failed to fence the said railroad, yet, if the plaintiffs have failed to prove that the damage complained of was occasioned by such failure to fence, and have failed to prove negligence in other respects, then they should find for the defendant.</p> <p>“4. The court instructs the jury that it is the duty of parties having stock killed by railroad trains, to use diligence to save the injured property so far as they can, and if they believe, from the evidence, that plaintiffs failed to use- diligence to save the damaged property, the jury should take that into account by way of mitigating the damages if they find for the plaintiffs.”</p> <p>The other material facts appear in the opinion of the court.</p>

<p>1. Jury—mode of filling panel under act of 1872. Where the circuit court caused the panel of petit jurors for a term to be filled by the sheriff, instead of the clerk drawing from the list selected by the county board a sufficient number to fill the panel, and having these summoned: Held, that this would have been good ground of challenge in a civil cause.</p> <p>2. But in a criminal cause, the 178th section of the criminal code of 1845, not having been repealed, was regarded as authorizing the court to fill the panel by summoning a sufficient number as 'talesmen instanter.</p> <p>3. Same—challenge to array—waiver of. Where the panel of petit jurors is improperly filled, or the jurors improperly selected, the objection should be taken by challenge to the array, or by motion to quash the order for a tales, or it will be considered as waived. The objection can not be taken to the polls.</p> <p>4. Same—statute construed. The 178th section of the criminal code of 1845, which declares that “ where the panel of jurors shall be exhausted by challenges or otherwise,” it shall be competent, for the court to order a tales, etc., does not necessarily import that there must previously have been a full jury. It applies to an exhaustion of the panel by non-appearance, as well as otherwise.</p> <p>5. Statute—repeal hy implication. Where the legislature, in the passage of an act relating to jurors, in express terms repealed three prior acts concerning the same subject, but in the repealing clause omitted to mention a statute on the subject relating to criminal cases, and the later act contained no general repeal of inconsistent acts or parts of acts: Held, that the repealing act did not repeal by implication the omitted statute relating to jurors in criminal cases.</p> <p>6. Juror—challenge. A juror, when called, stated that he had sat upon a jury in a court of record within one year before. A challenge for this cause was disallowed: Held, that while the cause of challenge was good under the act of 1859, yet it was not under the act of 1872, for the reason that it did not appear that the juror had sat upon a jury in a court of record in the county within one year.</p>

Thomas F. Tipton, Judge, presiding. This was an action by Joseph Palmer against Warren Coman and Marston Hefner, upon a promissory note purporting to be signed by both the defendants. Service was had upon Hefner alone. He denied the execution of the note under oath. It appeared that Coman was engaged in purchasing horses, and that he delivered the note to the plaintiff in part payment for horseá bought.

<p>1. Married woman—when her property liable for husband’s debts. If a married woman advances her separate property or money, and places it in the hands of her husband for the purpose of his carrying on any general business, and he obtains credit on the faith of being the owner of the same, the entire capital so embarked in the enterprise, with the increase, will not constitute the separate property of the wife as to creditors, but will be liable for the husband’s debts.</p> <p>2. Garnishment—note overdue made payable to wife to defraud creditors. Where a husband traded a manufacturing establishment and the machinery, belonging to himself and partner, for a tract of land, taking the conveyance to his wife to defraud creditors, and afterwards sold the same and took a note for the unpaid price, to his wife, which remained in her hands until after its maturity, and until the maker was garnisheed by a creditor of the firm of which the husband had been a member: Held, that, as there were no rights of innocent assignees involved, the amount due on the note was subject to the garnishment.</p>

<p>Appeal from the Circuit Court of Schuyler county; the Hon. Chauncey L. Higbee, Judge, presiding.</p> <p>This was an action on the case, by the appellee against the appellant, for the killing of certain stock of the plaintiff. The facts of the case are stated in the opinion of the court.</p>

Hobatio M. Vandeveeb, Judge, presiding. This was a bill in chancery, by Lewis B. Parsons and Albert G. Edwards, trustees of Eliza Edwards, against Charles Hagan and George Robb. The facts are stated in the opinion of the court.

Thomas F. Tiptoe, Judge, presiding. This was an application, by the county treasurer of McLean county to the county court of that county, for judgment against certain lots in the city of Bloomington for delinquent special assessments.

Chakles Tubnee, Judge, presiding. This was an action on the ease, by John Elmore against the Chicago and Alton Railroad Company, to recover damages for injury to the plaintiff’s person, the killing of a horse and injury to another, and the breaking of his wagon, caused by a collision with a train of the defendant at a public road-crossing.

<p>1. Partition—-jurisdiction to try an adverse claim of title. In a suit for partition when one of the defendants is in possession, claiming title adversely, the, court having acquired jurisdiction for the purpose of partition, may do complete justice between the parties, and dispose of the whole question of title between them, and thus save the necessity of an action at law.</p> <p>3. Same—proof of title—what- sufficient. Where the record of a partition suit showed that the deceased ancestor, from whose heirs the plaintiff had procured conveyances, received a deed for the lands in 1845, and that he resided on the same at the time of his death in 1848: Held, that this was prima facie evidence of title in fee in such former deceased owner.</p> <p>3. And where the defendant in partition, in his answer, stated that he was unable to state, from his present information, whether such former owner died seized of the land or not, but that he presumed said allegation was true: Held, that this was a sufficient admission of title in such owner at the time of his death.</p> <p>4. Same—decree as to an adverse title in pa/rty in possession. In a suit for the partition of lands in the adverse possession of one claiming title acquired under a sale for taxes, while the court may determine the question of title, yet it will be error, upon finding in favor of the plaintiff, to decree that such defendant’s title be annulled and extinguished as a cloud upon the title of the other party.</p> <p>5. Limitation law of 1839—what is color in good fait\ Where the widow of a deceased owner of land conveyed her unassigned dower interest in the same, and her grantee conveyed to the defendant in a suit for partition, informing such defendant that he owned nothing but such dower interest, and that was all he could convey: Held, that such deed could not be relied on as color of title made in good faith, to defeat the suit for partition.</p> <p>6. Same—color of title to defeat a partition. Where a defendant in possession had acquired a deed from one holding a tax title on the land of which partition was sought, and had paid-all taxes thereon for more than seven successive years before the commencement of a suit for partition, such payments being coupled with actual possession: Held, that such deed was color of title, notwithstanding the defendant afterwards suffered the land to go to sale, and that such payment and possession was a bar to the suit, except as to the interest of parties laboring under disability.</p> <p>7. Deed—delivery. Where a party executes a deed for land, and it is left, with his assent, in the hands of a third party, for the grantee, but is lost in such third party’s hands, this will amount to a delivery of such deed.</p> <p>8. Redemption fbom tax sale—effect of certificate of, as evidence. A certificate of the redemption of land from tax sale is only evidence of the deposit with the clerk of the redemption money. It is not evidence of the right to redeem, and furnishes no evidence of the age of the person assuming to exercise the right.</p>

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

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

<p>1. Administrator—liability fm-loss through neglect of duty. Where an administratrix of an estate deposited a large sum of collections in a bank, where she suffered it to remain for a long time, and neglected to make her yearly report to the county court and obtain an order to pay out such money, until after such bank became insolvent, and the same was lost: Held, that notwithstanding the credit of the bank was good at the time of the deposit, she was liable to account for the sum so lost, on account of her neglect of duty to make yearly reports and pay out the money on the order of the court, before the failure of the bank.</p> <p>2. In such case the fact of the pendency of a suit in chancery in another county to settle her right to participate in the distribution of the estate, according to the terms of a marriage settlement, and to restrain her from receiving more than a child’s share of the estate, there being no injunction issued in fact, was held not to relieve her from the consequences of such neglect of duty.</p>

<p>1. Right os’ way—of the notice of the proceedings to condemn—on whom to be served. Where the Belleville and Illinoistown Railroad Company, whose charter was approved June 21,1852, in 1854 instituted proceedings to condemn land under its charter, gave notice thereof to a former owner of a life estate therein, but who had previously conveyed his title, and whose deed was duly recorded: Held, that the proceedings were invalid for the reason that they were not instituted against the owner.</p> <p>2. Eminent domain—liability for rightful acts done in the exercise of the right. Where a railroad corporation, in exercising the right of eminent domain conferred by law upon it, commits an injury to the land of another by entering upon it in order to make preliminary surveys, or by taking materials therefrom, or the like, in pursuance of the powers vested in it, and the law under which such acts are done prescribes a mode for assessing damages for such injuries, an action of tort will not lie therefor, but the statutory remedy must be pursued—such remedy, in general, being exclusive.</p> <p>3. But this is upon the ground that the statute conferring authority has been complied with. In such a case, there can be no injury to the rights of the party, and therefore no action, as for a tort, can arise. As compensation is made for what is legally taken, the party can not complain that a wrong is done, for his property, in such case, is taken according to the law of the land.</p> <p>4. Ejectment—lies against railroad company for land taken without legal condemnation. Ejectment will lie against a railway corporation by the owner, for land taken and used by it for the purposes of its road, where the land has not been condemned under proceedings instituted for that purpose, in the mode prescribed by the constitution, and laws enacted in conformity therewith.</p> <p>5. Where a railway corporation has taken possession of the land of another without his consent and without condemnation, and wrongfully holds the same for the use of its road, the law affords the owner two remedies—an action of ejectment or an action to recover the value of the land taken. He is not driven to proceedings by mandamus to compel a condemnation.</p> <p>6. Same-^-when notice to quit is necessary. Where the entry of a railway corporation upon land, and its use for the track, etc., of its road, is with the assent of the owner, or is made under proceedings properly instituted for its condemnation, and the consent of the owner can be presumed, though the condemnation money has not been paid, it seems that the corporation will be entitled to notice to quit before ejectment will lie.</p> <p>7. Mandamus—by owner to compel railway corporation to condemn his land. It not being the duty of a railroad corporation, after having obtained possession of land for its track, and in the use of it, to institute proceedings to condemn it, mandamus is not a proper remedy for the owner to compel the institution of such proceedings.</p> <p>8. Publication of notice—proof of how made. The certificate of a publisher of a newspaper, of the publication of a notice required by law z to be published, after he has ceased to be the publisher, is not admissible/ as evidence of the publication. After he ceases to be the publisher, he can only verify the fact by his testimony as a witness. It also seems competent to produce the several numbers of the paper containing such notice, and prove by any competent person the publication of the same.</p>

Charles D. Hodges, Judge, presiding. This was an action of assumpsit, by Stephen Green against the Toledo, Wabash and Western Bailway Company. The facts of the case appear in the opinion of the court.

Charles D. Hodges, Judge, presiding. This was an action of assumpsit, by the appellant against the appellee, upon a subscription paper, whereby the subscribers agreed to pay the amounts set opposite their respective names, in such installments as might be ordered, etc. The declaration declared specially upon the subscription, with a count on a promissory note. The defendant pleaded the general issue. The other facts are stated in the opinion.

Writ of Error to the Circuit Court of Macon county; the Hon. A. J. Gallagher, Judge, presiding. This was an action by Robert Timmons against George W. Cook, originally brought before a justice of the peace, and taken to the circuit court by appeal, in which court a trial was had before the court without a jury. The court found the issue for and rendered judgment in favor of the plaintiff, from which the defendant prosecuted this appeal.

James Steele, Judge, presiding. This was a bill in chancery, by William Villars, against Levin T. Palmer, administrator of the estate of Guy Merrill, deceased, and John G. Leverich, to enjoin proceedings at law by Palmer as administrator of the estate of Merrill, for the use of Lexrerich, upon a promissory note,'given by one George W. Taylor as principal, and signed by the complainant as surety, and payable to said Guy Merrill as master in chancery. .

Richard 8. Cahby, Judge, presiding. * This was an action of assumpsit, brought by Richard Pearce against Frederick Pearce. The declaration contained the common counts only. The defendant pleaded the general issue and notice of set-off. On the trial the plaintiff asked the following instruction, which was refused: “ The court instructs the jury, that, under the pleadings, the fact that Edward Pearce is not joined as a co-defendant, can not be taken advantage of.

James Steele, Judge, presiding. This was an action of ejectment, by Gilbert Gulick and others, the heirs at law of Stephen Gulick, deceased, against David Swearengen. The land in dispute had been sold by the administrator of Stephen Gulick, deceased, on December 24, 1847, under a decree of the circuit court of Champaign county, rendered at the September term thereof, 1847, for the purpose of paying the debts of the deceased.

<p>Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p> <p>This was an action of assumpsit, by Andrew J. Thomas, against Thomas O. Rutledge, Thomas Buckles, and Robert Semple, trustees of the LeRoy congregation of the Cumberland Presbyterian Church.</p> <p>The plaintiff was pastor of the church, and, through his efforts, a church building was erected in LeRoy, McLean county, at a cost of about $3600. The contractors refused to give up the building until they were paid, and the plaintiff became personally responsible for the balance due them. He claimed that he, under this arrangement, paid $300 more than he ever got back. The evidence as to whether the whole sum was collected and paid him, was conflicting. The cause was tried by the court without a jury, who found for the defendants, and judgment was rendered accordingly, and the plaintiff appealed.</p>

Chauncey L. Higbee, Judge, presiding. This was an action on the case, by Thomas B. Connell against the Rockford, Rock Island and St. Louis Railroad Company, for the killing of a mule of the plaintiff. The facts of the case are stated in the opinion. Verdict and judgment for the plaintiff for $140, and the defendant appealed.

Joseph Gillespie, Judge, presiding. This was an action on the case, by Catharine McMorrow, against the Chicago and Alton Railroad Company, to recover for the killing of plaintiff’s horse by the defendant’s train of cars. The plaintiff recovered a verdict and judgment for $ 130 and costs, and the defendant appealed. The facts are stated in the opinion.

Charles H. Wood, Judge, presiding. This was an action by John Y. Calhoun, against William O’Neall, John C. O’Neall and William Beeler, upon a promissory note. The facts of the case appear in the opinion.

James Steele, Judge, presiding. This was an action of assumpsit, by Samuel Shaw against Sandford and Seldon Richards, to recover the price of corn sold and delivered. The facts appear in the opinion.

<p>Chancery—evidence—how preserved. Where copies of judgments and executions affecting title to land in dispute are copied into the record of a chancery case, which are not exhibits filed with the bill, or any of the depositions, and there is in the record no certificate of evidence by the court, nor any statement of the facts proven in the decree, this court can not notice the same. The clerk’s certificate, that the record contains a “correct copy of all the papers on file, all of the orders of court and records used in evidence,” in such a case is of no avail.</p>

Thomas F. Tipton, Judge, presiding. This was an action of trover, by Samuel Colvin, against Ivory H. Pike, a constable of McLean county. The defendant levied upon the property claimed by the plaintiff, under two executions, against one George Cornelius, and advertised and sold the same. The plaintiff claimed the mule levied on, under a chattel mortgage given by Cornelius to one William H. Miller, and assigned by Miller to plaintiff.

<p>Injunction—judgment under $20. By statute, no writ of injunction is allowed to stay proceedings under a judgment of a justice of the peace for a sum not exceeding $20 besides the costs, and where such judgment is under that sum, it is not error to dissolve an injunction granted on the filing of the bill.</p>

<p>1. Mistake-whether chancery will correct mistake in entering 'amount of judgment. On bill filed to eórrect an alleged mistake in entering a judgment for the proper amount found by the court, the court say, that if the mistake was clearly shown, and that it occurred without any negligence on the part of the complainant, it may be that equity would assist him to have the error corrected.</p> <p>■2. Same-must he clearly shown. In the absence of evidence, showing clearly that the court trying a common law case, by mistake entered the judgment for too small a sum, the presumption will be in favor of the correctness Of the judgment. Where the party complaining fails to present the evidence heard on the trial of the suit at law, this court can not determine whether the court entered the judgment for the correct amount or not.</p>

<p>Partition—sufficiency of evidence of title. In a proceeding for partition against parties in possession claiming title to the whole, where the answer expressly denied that the petitioner had any title or interest in the premises, the only evidence was contained in the master’s report of the oral statements of a witness as to the title of each of the parties, which was corroborated by the master’s report as to his examination of the record, there being no documentary evidence whatever: Held,, that the evidence was wholly incompetent and insufficient to support a decree in favor of the petitioner, under the issues.</p>

Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, by Nicholas S. Baker against Henry Williams and F. Kimler, upon a promissory note. The declaration contained a special count upon the note, and also the common counts.

James Steele, Judge, presiding. This was a bill in chancery, brought by Ezekiel Carter, against Jacob Braden, for the settlement of their partnership accounts. The defendant claimed to have advanced $1000, which was denied. The court below allowed the same, and the complainant appealed.

James Steele, Judge, presiding. This was an action of debt on a replevin bond, by O’Hair, sheriff, for the use of Francis M. Pattison, against William McMurchy, Rebecca McMurchy and Henry E. Rives. A recovery was had, and McMurchy appealed.

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

Joseph Gillespie, Judge, presiding. This was a suit by Sebastian JSTeuber, against Octavius Lumaghi, to recover for services and upon an order drawn upon him by Henry James. It appeared that the defendant employed James to sink a shaft for him, and that James employed the plaintiff.

Charles Turner, Judge, presiding. This was an action, by Adolph Krebaum, against James It. Walker, originally commenced before a justice of the peace, and taken by appeal to the circuit court. On the trial in the latter court, the plaintiff read in evidence a promissory note, given by the defendant to the Kalamazoo Manufacturing Corporation, with the following indorsement thereon: “ For value received, I assign this note to Adolph Krebaum, without recourse on Kalamazoo Mfg.

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was a proceeding by Henry Heberer, the appellant, against Margaret Heberer, widow of George H. Heberer deceased, and Henry Heberer, Adam Heberer, Peter Heberer, and Charles Heberer, minor heirs of said George H. Heberer, for the partition of land.

Thomas F. Tipton, Judge, presiding. This was a bill for an injunction, filed by John D. Gillett against the board of supervisors of Logan county, James C. Hoblit, county clerk, and Christopher C. Burton, Uriah Warren and James Tuttle, a committee appointed by the board of supervisors, to enjoin the issue of an order referred to in the opinion of the court. Oh the hearing the bill was dismissed, and the complainant appealed.

A. J. Gallaghee, Judge, presiding. This was.an action on the case, by Andrew J. Grush, against the Toledo, Wabash and Western Eailway Company, to recover damages for a personal injury received by the former in stepping through a hole in the platform of defendant’s station. A trial was had, resulting in a verdict and judgment of $1000 for the plaintiff, from which the defendant appealed.

Charles Turner, Judge, presiding. This was a bill in chancery, by George Hoagland, as guardian of John Deniston and Aaron Deniston, against William Deniston and Aaron Pollard, for the specific performance of a contract for the sale of land made by William Deniston to Samuel Deniston, deceased, the father of John and Aaron Deniston, in his lifetime, and to set aside a conveyance of the premises made by William Deniston to Aaron Pollard, as in fraud of the equitable rights of…

Charles D. Hodges, Judge, presiding. This was a creditor’s bill, filed by George Carter, the appellant, against Nathan S. Gunnels, and the heirs at law of Christopher Ashbaugh, deceased, to subject certain real estate to the payment of a judgment recovered by the complainant against Gunnels. The question of fraud, in a conveyance of Gunnels to said Christopher Ashbaugh, was submitted to a jury, who found for the defendants.

James Steele, Judge, presiding. This was an action on the case, by George E. Shrader against John E. Francis, to recover the value of a mare which the defendant had taken from the plaintiff to break for him for her use. While she was being broken, she and the defendant’s team ran away, and she was killed. A trial was had, resulting in a verdict and judgment against the defendant for $100, from which he appealed.

<p>1. Chattel mortgage. A chattel mortgage given by a tenant to his •landlord to secure rent already due, and to become due in the future, it appearing on its face that the several amounts were then unadjusted, where the debt is tona fide, is valid and binding, even as against creditors of the mortgagor.</p> <p>3. Where a chattel mortgage was given to secure a debt falling due at different times, the mortgagee is not bound to wait until the last payment matures before taking possession of and selling the mortgaged chattels. But if the law were otherwise, no one but the mortgagor can complain that the mortgagee seized the property before the whole debt matured.</p> <p>3. Same—notice of sale. The omission to state, in the notice of the sale of mortgaged chattels, whose property would be sold, will not invalidate the sale. And even if the sale was irregular and failed to foreclose the equity of redemption, the mortgagee would have the right, on default, to reduce the property to possession and hold the same until his debt is paid or tendered him.</p>

Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, brought by Henry Heiland against the city of Bloomington. The declaration contained the common counts only. The facts of the case are stated in the opinion of the court. The plaintiff recovered, and the defendant appealed.

<p>1. Limitation—«s against the United States and its grantee. Where land, the title to which was in the United States, had been sold for taxes thereon, and the purchaser had been in possession under his tax deed, and paid all taxes assessed thereon for more than seven successive years before suit brotight, and before the land was granted by patent by the United States: Held, in ejectment by the patentee against such party in possession, that the action was not barred by any statute of limitations.</p> <p>2. Swamp lands—title did not pass by act of Sept. 28í7¿, 1850. The act of Congress of Sept. 28,1850, relating to swamp and overflowed lands, did not, of itself, operate as a grant of such lands to the several States in which they were situated, without any act of segregation. Under such act lists and plats were required to be made, and a patent to issue, before the fee in the lands should be vested in the several States.</p> <p>3. Grant—where patent not necessa/ry. Where an act of Congress makes, in express terms, a grant of specific lands belonging to the United States, no patent or other assurance is necessary to pass the fee to the grantee. But if anything remains to be done by the grantor or grantee to consummate the grant after the passage of the law, it will not take effect and vest the title until such act has been performed.</p>

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

Thomas F. Tipton, Judge, presiding. This was an action on the case, by Anna Hoffman, administratrix of John Hoffman, deceased, against the Illinois Central Eailroad Company, to recover damages for wrongfully causing the death of the deceased. The deceased left a wife, the plaintiff, and an infant child. The facts of the case are presented in the opinion of the court. There was a verdict and judgment in the court below in favor of the plaintiff for $3000.

Writ op Error to the Circuit Court of Cook county; the Hon. John G. Bogers, Judge, presiding. This was a claim filed by the defendant in error against the estate of Charles W. Bicketson, deceased, Henry M. Shepard being the administrator de bonis non of said estate. The claim was allowed in the county court of Cook county, and taken by appeal to the circuit court. The claim was not exhibited until after two years from the date of the first letters of administration granted.

<p>Services—liability of railway company to pay for services performed at request of their agent. Where the conductor of the defendant railway company brought a brakeman, who had received a serious injury whilst in defendant’s service, to the plaintiff’s house, to be caved for, and immediately after telegraphed to the officers of the company the facts, and they never notified the plaintiff of their intention that the company should not be responsible: Held, in an action by the plaintiff against the company, that the company was liable to pay the plaintiff what his services were reasonably worth.</p>

John A. McClernand, Judge, presiding. This was a bill in equity, by The First National Bank of Springfield, against Orlistus B. Baker, county treasurer and ex-officio collector of Sangamon county, to enjoin the collection of taxes assessed upon the shares of the capital stock of the bank. The court below decreed pro forma in accordance with the prayer of the bill, and the county treasurer appealed to this court.

Chables D. Hodges, Judge, presiding. This was an action on the case, brought by Charles H. Maine, against the Toledo, Wabash and Western Railway Company, for a personal injury received by him through the carelessness of the servants of the company, in unloading one of its cars.

Arthur J. Gallagher, Judge, presiding. This was a bill in chancery, by James W. Haworth, against James Travis, William Pitts and Isaac Wilson, to enjoin the sale under execution of certain premises of the complainant, by Travis, sheriff, issued upon a judgment in favor of Pitts and Wilson, against the complainant, on the ground that the property was exempt as a homestead. The facts of the case are stated in the opinion of the court.

<p>1. Boundary, disputed or lost—no power to establish new corners and lines. The act of March 25,1869', entitled “An act to provide for the permanent survey of lands,” confers no power on the commissioners appointed under its provisions to establish new corners or run new boundary lines, but simply to re-establish those once established by the United States, and by which they sold the same to the several purchasers.</p> <p>2. The duty of such commissioners, when appointed, is to re-establish lost corners and boundaries; to make them in the same places and .at the same distances as they had been originally established by the government surveyors. In so doing, the returns and original field notes returned by the government surveyors should be their main guide, and they should also be guided by corners in the same township, recognized as the original government corners. Such corners must control both courses and distances.</p> <p>3. In re-establishing lost corners and boundary lines, under the statute, the commissioners can not disregard recognized government corners yet standing in the same township, and as section lines are frequently deflected; the true corners must be tested by east and west distances from them as well as by north and south distances, as*given in the original field notes.</p> <p>4. Same—dividing overplus of distance. Where the distance between recognized government corners as originally established overruns that given in the field notes of the government survey, it should be divided pro rata between the intervening sections, and any deficiency should be apportioned in the same manner.</p>

A. J. Gallagher, Judge, presiding. This was an action on the case, by Eugene C. Johnson, against the Illinois Central Eailroad Company, to recover damages for a refusal to carry him as a passenger, and for putting him off the train of the company at a place which was not a station or usual place for taking on and discharging passengers. The facts of the case are stated in the opinion of the court.

A. J. Gallagher, Judge, presiding. This was an action on the case, by Joseph O. Cunningham, the appellee, against the Illinois Central Railroad Company, to recover damages for being put off the defendant’s train in the night time, not at a regular stopping place for trains. It appeared that the plaintiff was' unable to procure a ticket through the fault of the company, and that he was put off the train because he did not haye such ticket.

Writ of Error to the Circuit Court of Edgar county; the Hon. James Steele, - Judge, presiding. This was a suit by attachment, by Moses Allen, David Allen and John Allen, against Johnson Boss. The plaintiffs recovered below.

<p>1. Right of way—evidence on assessment of damages—ordinance. On the assessment of damages to certain town lots, caused by the location of the side track of a railroad on the street fronting them, and within a few feet of such lots, it appeared that the petition stated that such track was to be constructed and maintained according to the terms and conditions of certain ordinances of the town: Held, that the ordinances were properly admissible in evidence on behalf' of the petitioner, as tending to show the mode of construction of the track, and the probable manner of its use, and thus having a legitimate bearing upon the question of damages.</p> <p>2. Same—damage to other lots constituting same tract. In a proceeding to acquire a right of way for a side track along a street upon which the defendant had twenty-eight lots lying together and constituting an entire tract, the petition only referred to the lots abutting upon the street, and asked for an assessment of damages in respect to them. On the trial, the defendant offered proof of damage to the entire ground, which the court refused: Held, that under the petition the court ruled properly. If the defendant had filed his cross-petition, setting up that he was the owner of the other ground not described in the original petition, which would be damaged, and claimed that the damages thereto might be assessed, it seems that he might have had the damages assessed which would be caused to the entire piece of groupd.</p> <p>3. Same—damages caused by obstructing street. On the assessment of damages to an adjoining lot owner, caused by the establishment of a side track of a railroad in a public 'street of a town, it is error for the court, by instruction, to exclude from the estimate of damages the obstruction of the street from the necessary running of railway trains.</p> <p>4. Where an ordinance of a town prohibited the obstruction of its streets by railway trains for more than fifteen minutes, this was held, not to legalize such obstructions for that length of time, so as to exclude it from the estimate of damages to contiguous property which might be injuriously affected thereby.</p> <p>5. Same—evidence as to use of property on question of damages. Where, on the assessment of damages to lots abutting upon a street sought to be taken for á side track of a railroad, the owner gave evidence that the proposed location would render his lots useless for business purposes, it was held, that it was competent for the railway company to show that the property could be beneficially used for warehouse purposes, or for any other purpose.</p> <p>6. Same—instruction as to damages. Where a party claimed damages by the location of a side track of a railroad in the street close to his lots, the court instructed the jury that the damages to be allowed to him could only be such, in kind, as lots not lying or abutting on the same street, but in the vicinity, did not sustain in any degree: Held, that the instruction was erroneous, as it virtually cut off all claim for damages.</p> <p>7. In the same case, the court instructed the jury, for the railway' company, “that the law of this State does not "grant indemnity for all losses or damage occasioned by the building of a railroad, such as inconvenience arising from the crossing of railroad tracks by the public or individuals, or from noise and confusion of passing trains, smoke from same, or frightening horses,” etc.: Held, as applicable to this case, where the track was along a street within from ten to eighteen feet of the front line of lots abutting on the street, that the instruction was improper and especially calculated to mislead the jury to the lot owner’s prejudice.</p>

James Steele, Judge, presiding. This was an action brought by John S. Knowles, by his next friend, against Samuel H. Magner, A. Y. Trogden and G. W. Hives, before a justice of the peace, upon the bond óf the first named defendant, the others being sureties.

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

This was an application in this court for a mandamus against the Auditor of Public Accounts, by the relator, William P. Murphy. The respondent demurred, to the relator’s petition, and the demurrer was sustained. The opinion states the facts of the case.

<p>Appeal from the Circuit Court of Macoupin county • the Hon. Hobatio M. Vahdeveeb, Judge, presiding.</p>

Writ op Error to the Circuit Court of Tazewell county ¿ the Hon. Charles Turner, Judge, presiding. This was an action of replevin, by Nathaniel Tucker and Henry Mansfield, partners, by the name and style of Tucker & Mansfield, against Edward Pratt, sheriff, etc. The opinion states the facts.

Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, by Albert W. Hutchins against the United States Express Company, to recover the sum of $2000, alleged to have been left in defendant’s office in Latrona, Ill., to be forwarded by it to M. F. Hutchins, at Lowell, Massachusetts. The case was before this court at the January term, 1871, and reported in 58 Ill. 44. The material facts are stated in the opinion of the court.

<p>Writ of Error to the Circuit Court of Adams county; the Hon. Joseph Sibley, Judge, presiding.</p> <p>This was an action of assumpsit, the plaintiff declaring in the common counts only. The account filed with the declaration was as follows:</p> <p>The Quincy Whig Company,</p> <p>To John Tillson, Dr.</p> <p>To services as editor of the Quincy Whig, from Aug. 1, 1869,</p> <p>to June 20, 1871, at $35 per week,..............$3445</p> <p>To money paid,................................. 3500</p> <p>To money received and advanced,........;......... 3500</p> <p>To money had and advanced by me,................. 3500</p> <p>To interest on moneys due,........................ 500</p>

<p>1. Husband and wipe. In the absence of an estate in the wife created through the intervention of trustees, or derived from persons other than her husband, so as to bring it within the act of 1861, the rights of husband and wife will be precisely as at common law. If the husband consents that his wife may hold personal property and carry on business in her own name, or receive the rents and profits of her land, unless such consent is based upon a sufficient consideration, he may withdraw it at any time, and assert his rights at common law.</p> <p>2. Married women—separate estate cognizable in equity. It is only where the separate estate of a married woman is created through the intervention of trustees holding for her sole use, that a court of equity will take cognizance to charge the same with her debts. Where it is acquired under the act of 1861, from a source other than her husband, it is a legal estate, and in that case she has legal capacity to enter into contracts in respect to it, which are cognizable in a court of law.</p> <p>3. Same—uihm separate estate chargeable in equity. Where an estate is vested in trustees for the use of a married woman, she can neither dispose of the same nor create a charge upon it except in the manner and for the purposes specified in the instrument creating the trust; and the courts will not render a decree establishing a charge on it without having the trustees and the instrument before them.</p> <p>4. Same—contracts not relating to separate property, void. Where a married woman kept a restaurant, with her husband’s consent, and purchased groceries to enable her to carry on the business, and it did not appear that she acquired the property since the act of 1861, from some other source than her husband, or acquired the same by her earnings since the act of 1869, or that it was held for her separate use by trustees, it was Md, that a creditor’s claim for the balance due from her on an account was void at law.</p>

Joseph Sibley, Judge, presiding. This was an action of trespass quare clausum, fregit, by James Purnell against Thomas Jasper and various others. It appeared that in May, 1869, Jasper, being the owner of a lot in the city of Quincy, verbally leased the same to the plaintiff for a certain time, with the privilege of erecting a building thereon and removing the same. The plaintiff after-wards erected a board stable on the lot, by setting posts in the ground to support the roof.

<p>1. Insurance—extent of liability for loss. In the case of an ordinary policy of insurance, and a loss, the sum insured is the extent of the insurer’s liability, but not the measure of the claim of the assured. The contract being one of indemnity, he is entitled only to that, and the actual loss sustained by the assured is the measure of indemnity to which he is entitled when it is less than the sum insured.</p> <p>2. Same—liability of reinsurer to company first insuring. Where an insurance company, after having taken a risk and reinsured in another company to indemnify itself against loss on its policy, discharges its liability by the payment of a less sum than that reinsured, the sum so paid by it will be taken as the amount of damage sustained, and the measure of indemnity to be recovered of the second company.</p> <p>3. Same —policy of reinsurance construed. And where the policy of reinsurance contained this clause: “loss, if any, payable pro rata, at the same time and in the same manner as the reinsured company,” in case of a loss the reinsurer will only be bound to pay at the same rate the re-insured shall pay; so that, if the reinsured pays only ten cents on the dollar of its insurance, the reinsurer will pay at the same rate on the amount of its policy.</p>

<p>■ Appeal from the Circuit Court of Montgomery county; the Hon. Horatio M. Vandeveer, Judge, presiding.</p>

Charles Turner, Judge, presiding. This was a bill in chancery, filed by the Illinois Insurance Company against Hans H. Littlefield and David M. Irwin, for an injunction to restrain the defendants from obstructing an alley in Beardstown. The court below, on motion, dissolved the injunction and dismissed the bill, from which order the complainant appealed.

Writ of Error to the Circuit Court of Mason county; the Hon. Charles Turner, Judge, presiding. This was a bill in chancery, by Elizabeth Hicks and Moses Hicks, her husband, against Samuel J. Chapin, Eobert A. Leeper, William S. Leonard, George Linbarger, Bentley Buxton and William G. Stone, to remove an alleged cloud upon the title to certain land, the legal title to which was claimed by Elizabeth Hicks, she being in the possession thereof.

Charles D. Hodges, Judge, presiding. This was a bill to foreclose a mortgage, filed by Julia A. Morgan against James Watt and Alexander Sallee. The note described in the mortgage was credited with numerous payments, and was entitled to a great many other credits, so that the computation of the sum due was rendered intricate and complex. The court below found that there was due on the note and mortgage $203.44, and decreed its payment, with costs.

Arthur J. Gallagher, Judge, presiding. «= This was an action of assumpsit, by Miner T. Chew, against the Toledo, Wabash and Western Railway Company. The declaration was for ties sold and delivered. The plaintiff recovered judgment for $600, from which the defendant appealed. The facts necessary to an understanding of the case, are stated in the opinion of the court.

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

Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, brought by Asahel Gridley against Samuel T. Bane, on the following promissory note: “$500. Bloomington, III., March 18, 1869.

<p>Writ of Error to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>This was an action of trespass, originally brought by Joshua Thompson, against J. Pool Mead, George W. Mead and George W. Richardson, before a justice of the peace of Madison county. On the trial before the justice the defendants were found guilty, and the plaintiff’s damages assessed at $69 and costs of suit. The defendants appealed to the circuit court, where a trial was had, resulting in a verdict and judgment for the defendants, from which the plaintiff prosecuted this appeal.</p> <p>The facts of the case, as shown by the evidence, were substantially as follows : The plaintiff rented land to one Lydia Kile for one year from March 1, 1870. The rent was one-third of the crop raised, payable when the same should mature. A house on the same land was rented at the same time for $4 per month, payable in money. In September, 1870, before the corn crop matured, the tenant abandoned the premises and left the State, being indebted to the plaintiff at the time in the sum of $62 for rent of the house and pasture rent, and a portion of the premises not planted in corn. Three days after the tenant left, the plaintiff levied a distress warrant upon her two-thirds of the corn crop to collect the rent due, but two days before this other parties, Wise and Lancaster, and F. M. Pearce, sued out writs of attachment against the tenant and levied the same upon her two-thirds of the corn, which was sold under the judgment in the attachment proceedings, and purchased by J. Pool Mead, who sold the same to McMichael, who gathered and used the same. The defendant Richardson, as constable, levied the writs of attachment, and afterwards sold the corn to Mead. The suit was brought to recover the amount of rent claimed to be due the plaintiff.</p>

<p>1. Negligence—contributory negligence of plaintiff. A freight train on which the plaintiff was a passenger, when nearing its destination at East St. Louis, was signaled to stop, and did stop, upon a high trestle work. Just before the train started the plaintiff went out of the car upon the platform, and while there the train started with a sudden jerk which caused him to fall off on the trestle work and from thence to the ice, a distance of about twenty feet, from which fall he received a personal injury. If he had remained in the car he would have received no injury, and it appears that he made no inquiry of the conductor whether it was safe for him to go out or not, and that he must have known that he could not get off at the place where the train stopped, and that it would soon reach its destination. It was dark and cold at the time: Held, that it was highly improper and negligent in him to attempt to go upon the platform in the dark, under such circumstances, without making any inquiry as to the danger, or as to how long the train would stop, and that his negligence and want of care were such that he could not recover, unless it was slight as compared with that of the company.</p> <p>2. In the same case it was insisted that the company was guilty of negligence in starting its train with a sudden jerk. It appeared that it was the duty of the engineer to stop the train where he did, in obedience to a signal, and to wait until he was signaled to start. The reason of the sudden jerk was, that the train could not be started without first slackening the train, and it appeared that the whistle was sounded for the purpose of setting the brakes for that purpose, and again for taking them off, and there was no other proof of any negligence: Held, that even if the engineer failed to ring a bell, it being no regular station where passengers could get on and off, he was guilty of no negligence in that regard, and it also appearing that the train could not be started except by.slackening, it being a long and heavy one, the company was not justly chargeable with negligence in starting with the jerk caused by the slackening of the train.</p> <p>3. Jury—duty as to evidence. A jury have no right, arbitrarily, to reject the testimony of an unimpeached witness simply because they desire to find a verdict against it. It is their duty to consider the entire evidence and render their verdict accordingly. It should be a fair and just conclusion from the whole evidence, otherwise a new trial should be awarded.</p>

Chatjncey L. Higbee, Judge, presiding. This was an action on the ease, by Benjamin T. Snyder, against Cassius M. Strader, Robert Myres, and Richard Cracraft, for a libel. The facts of the case appear in the opinion. A trial was had in the circuit court, resulting in a verdict and judgment in favor of the plaintiff for $215, and the defendants appealed.

Charles Turner, Judge, presiding. This was an application for judgment against certain lands for non-payment of taxes. The cause was tried in the circuit court on appeal from the county court. One of the grounds of objection interposed by the owner, was, the alleged insufficiency of the proof of publication of the notice of the intended application.

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. John A. McClernand, J udge, presiding.</p> <p>This was a bill in chancery, filed by Robert Underwood, Benjamin F. Burns and James McGee, against Alexander Ridgeway, Ballard Hudleston, James Hall, and Lucinda his wife, James Ridgeway, George Ridgeway, Albert Hudleston, Alexander Hudleston, Nancy Hudleston, Polly Ridgeway, Isaac Ridgeway, Samuel Ridgeway, Malinda Ridgeway, Dennis Proven, and Sarah J. Proven, his wife, to have certain land, named in the last will of Osborne Ridgeway, deceased, sold, and the proceeds divided. The facts of the case, upon which the points decided depend, are stated in the opinion of the court, except that the certificate of acknowledgment of the deed of Dennis Proven, and Sarah J., his wife, failed to show that the latter was personally known to the magistrate taking the same. The court below decreed the sale of the land, and the payment of the entire proceeds to the complainants. Alexander and George Ridgeway alone prosecuted this writ of error to reverse the decree below.</p>

A. J. Gallagher, Judge, presiding. The facts of the case are stated in the opinion of the court. The instructions given for the plaintiff, referred to, are as follows: “4.

This was an original suit in this court, by the State, against Aristus Brown, Clark W. Upton, Moses Evans and Lorenzo Hinkston, as sureties, upon the official bond of Walter W. Hastings, sheriff of Lake county. The case was submitted upon an agreed state of facts.

Thomas F. Tipton, Judge, presiding. This was an action of trespass, by William Hartley and Alley Hartley, against the appellant, for breaking and entering the close of the plaintiffs, excavating therein without their consent, and constructing and laying down thereon a railroad track, and thereafter operating the same, and by so doing permanently injuring and damaging the plaintiffs’ close, and preventing the plaintiffs from the reasonable use and enjoyment of the same.

James Steele, Judge, presiding. This was an action of trespass, by Hannah Haskins against Lowry Haskins and William M. Herron. The facts of the case are stated in the opinion of the court.

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

John A. McCleenand, Judge, presiding. This was an action of assumpsit, by John C. Champion against David P. Purvines. The declaration consisted of one count in indebitatus assumpsit for goods, wares, horses, etc., sold. Plea, non-assumpsit. The facts of the case are stated in the opinion.

Charles Turner, Judge, presiding. This was a petition by Peter Lindberg, against .Gerhard H. D. Havighorst and William H. Caldwell, to enforce a lien against the former.

<p>Appeal from the Circuit Court of Adams county; the Hon. Joseph Sibley, Judge, presiding.</p> <p>This was an action of assumpsit, by James W. Meyers, against Jacob Schemp and Charles Brante, to recover the price of a brick building which had been burned. The defendants recovered judgment in the court below, and the plaintiff appealed.</p>

<p>1. Service of notice—by whom,. Where the statute provides for the service of notice of the commencement of a judicial proceeding, which notice supplies the place of a summons in ordinary cases, it should be served by a person not a party to the proceeding, and one having no interest in the suit, and free from all temptation to act unfairly in making the service.</p> <p>2. Same—waiver of objection to the person serving. Where notice of an application for the appointment of a commission of surveyors to settle and establish a boundary line between certain lands, was served upon the defendants by one of the plaintiffs, it was held, that the defendants, who entered their appearance in full without objection to the service, thereby waived the objection, and could not question the service on error.</p> <p>3. Boundary line —practice under the act of 1869. Under the act of 1869, which provides for the appointment of a commission of surveyors to settle disputed boundary lines, the trial in the circuit court must be had upon issues presented by objections to the report of the commission. And it is error to dispose of the case without first hearing and deciding all the objections presented.</p> <p>4 Same —jurisdiction of the court.. The act of 1869, relating to the establishment of disputed boundary lines between adjacent owners, only embraces the persons and lands in the county in which the court is held. Therefore, when the disputed line is between lands situated in different counties, and the owners reside in different counties, the court has no jurisdiction under such act to appoint a commission of surveyors and estab-' lish the true line.</p> <p>5. Same—act construed as to publication of notice. Under this act, notice of the application for the appointment of a commission of survey, ors can not be published unless two things concur: first, the owners of adjacent lands to that of the petitioners must reside in the county in which the lands to be affected lie, and secondly, the names of such owners must be unknown.</p> <p>6. This proceeding is, therefore, limited to lands of the county where the court taking jurisdiction is held, and in which all the parties to be affected reside.</p>

Charles Turner, Judge, presiding. This was an action on the case, brought by James F. Brereton, and Eleanor A. Brereton, his wife, against the city of Pekin,' to recover damages done to certain lots owned and possessed by them, by reason of the grading done for and in the construction of a railroad on a public street in the city of Pekin, opposite the lots in question.

Joseph Gillespie, Judge, presiding. This was a suit brought by George Reinhardt, against William Emmert, for the value of a brass kettle claimed by the plaintiff. The kettle, at the time of the taking, was in the possession of Mrs. Soldman, the tenant of the defendant, and it was seized for rent. The plaintiff claimed that he was the owner, and that he had loaned it to Mrs. Soldman.

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

<p>Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p> <p>This was an action on the case, by George W.. Roberts, against William F. Flagg, for slander. The facts of the case are stated in the opinion.</p>

<p>1. Tax deed—ambiguity in description. A sheriff’s deed for land sold for taxes, described the land as in “ T. 32 N. R. 9 E,” without stating in what county, State, or east of what meridian it was situate. It was insisted that the deed was void for uncertainty, there being several meridians to which the description could equally apply, but the court held that the ambiguity, being a latent one, was susceptible of explanation by any facts or circumstances showing the land intended. There are no other tracts of land in this State to which the description in the deed is applicable, except these tracts in Will county. And the recital in the deed that the land was sold by the sheriff of Will county, under a judgment of the circuit court of that county for taxes, was held sufficient to show that the land intended was in Will county, Illinois.</p> <p>2. Limitation—under act of 1839—good faith. Where a tax deed was made to James Hervey, and he paid all taxes on the land for over seven successive years, while the land was vacant and unoccupied, which was set up in defense by a party succeeding to his title, against a party claiming under the patent title, the latter contended that the color of title was not acquired in good faith. The facts were, that there were two persons of the name of James Hervey, one residing in Chicago and the other in Canada, the one residing in this State having made the purchase, and having died before the execution of the sheriff’s deed to the other. It appeared that the purchaser turned over his interest to a firm of which the other was a member, or with which he was connected, and • that the deed was made to the latter with the consent of such firm, to be held in trust for them, and that the heirs of the purchaser acquiesced in such arrangement: Held, that the evidence of bad faith was not sufficient to avoid the effect of the tax deed as color of title made in good faith, the presumption being in favor of good faith until rebutted.</p> <p>3. Conveyance—whether deed made to a dead person from the description of residence. Where a party living in Cook county, Illinois, purchased land for taxes, and after his death the sheriff, executed a deed upon the certificate of purchase, to another person of the same name, residing in Canada, who paid all taxes on the land for seven successive years, it was contended that the deed was made to a person not in being. The deed was made out in the absence of the grantee: Held, that the recital in the deed of its having been made to the person of the same name in Cook county, was not conclusive as to the fact of the real grantee’s residence, or as to which person the deed was made to.</p>

<p>1. Parties at law—plaintiff. A suit upon a promissory note must be brought in the name of the party holding the legal title. Where the plaintiff is not the payee, without an assignment of the note he can not recover.</p> <p>2. Bill of exceptions—copy of note must be presented by. This court, as uniformly held, can not look to the copy of the instrument sued on and filed with the declaration, for evidence, but only to the bill of exceptions.</p> <p>3. The clerk of the circuit court has no power to certify to the note read on the trial, or to any other evidence heard. The evidence can be presented to this court only by a bill of exceptions.</p> <p>4. Where the bill of exceptions shows that a note or other instrument was read in evidence, and the clerk has inadvertently omitted to copy it in the bill incorporated in the record, he may make a new copy embracing it, or copy that part of the bill of exceptions omitted by him in the previous copy.</p> <p>5. Same—amendment. Where the original bill of exceptions fails to show that the assignment of a promissory note had been read in evidence, when it had been, the only means of relief to the party is to move the court, when in session, to correct the record by its insertion into the bill of exceptions.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Joseph Sibley, Judge, presiding.</p> <p>This was an action on the case, by John M. Gartland, by his next friend, William Real, against the Toledo, Wabash and Western Railway Company, to recover for a personal injury. The declaration alleged that the plaintiff, a minor under the age of twenty-one years, was engaged in the employment of the defendant as a servant in operating its railroad; that he, with divers other employees of the defendant, was, on, etc., engaged in using and operating upon the track of the defendant nine large and heavy railroad cars with iron wheels; that the defendant, not regarding its duty in the premises, then and there, by divers and sundry of its other employees so engaged, as aforesaid, with the plaintiff in using and operating said cars, did move and manage said cars in so negligent, careless, unskillful and improper a manner that one of the said cars was thereby, and by means of the negligence, carelessness and unskillfulness last aforesaid, then and there caused to strike against and run over the plaintiff, who was then and there lawfully at said track, engaged in his said service and employment, and who was then and there using all due and reasonable care and diligence, safely and properly to use, move and manage said cars, and to avoid any injury and casualty to himself or others by means of said cars; and that by means of the premises and by reason of the carelessness, negligence and unskillfulness last aforesaid, one of the iron wheels of said last mentioned car then and there was propelled and moved with great force against and upon the legs of the plaintiff, whereby the right leg of the plaintiff was greatly wounded, bruised, crushed, mangled and broken, and his left leg wounded, bruised, crushed and injured, and the plaintiff otherwise greatly hurt, wounded and injured, and whereby the right leg of the plaintiff had to be amputated, and the other permanently weakened and injured, etc. The court below sustained a demurrer to the declaration, and rendered judgment against the plaintiff for costs. The plaintiff appealed, and assigned for error the sustaining of the demurrer to the declaration.</p>

<p>1. Evidence—pa/rol to explain consideration in a deed. The recitals in a deed for land as to the consideration and its payment, are not conclusive upon either party, hut are open to explanation, and it is competent to show by parol evidence that the sum named in adeed was not the true amount of the consideration, and that only a part of it was in fact paid, notwithstanding the recital of full payment.</p> <p>2. Same—declarations of party's agent. The decía rations of the plaintiff’s agent, made in the absence of the defendant, in respect to the sale of plaintiff’s land to the defendant and the title to lands received in payment, are not competent evidence against the defendant.</p> <p>3. Sale ob exchange oe land—right to recover for failure of title. The owner of land authorized an agent to sell the same for §3000, agreeing that the agent should, have all he could get above that sum. The agent sold the same for $3800, and put in a tract of Iowa land, whicli'he claimed, and his principal conveyed with the expressed consideration of §6300, and the title to the Iowa land not proving satisfactory, he brought suit against the purchaser to recover the balance of the §6300 above the §3800 received: Held, that so far as the purchaser was concerned, the Iowa land formed no part of the consideration of his purchase, and that he was not liable.</p> <p>4. Same—burden, of proof of title. .In a suit to recover for a breach of a contract for the exchange of lands, on the ground that the defendant did not own the land given in exchange, it is incumbent on the plaintiff" to prove the breach. The defendant is not bound in the first instance to show title, and thus disprove the alleged breach.</p>

Writ of Error to the Circuit Court of Bureau county; the Hon. Edwin S. Leland, Judge, presiding. This was an information, filed by the State’s Attorney of Bureau county, in the county court of that county, against Baltis Myers, for selling liquor.

<p>1. School teacher—right to recover wages. Where two of the three school directors consent to the employment of a teacher, and he exhibits to them the proper certificate of qualification to teach, at the time of his employment, and he teaches the school according to contract, and makes out and delivers a schedule to one of the directors, who signs and retains it, the teacher will be entitled to recover the wages agreed to be paid him.</p> <p>2. Appeal—trial de novo without regard to errors of justice of the peace. The fact that the justice of the peace improperly refused to grant a change Of the venue of a suit brought before him, affords no ground for a dismissal of the suit on appeal, as the justice had jurisdiction of the subject matter, and the trial in the circuit court is de novo.</p>

<p>1. Setting aside judicial sale—irregularity in notice. Where land was decreed to be sold subject to redemption, the master gave two different notices of the sale, the first by posting, which recited that the sale would be subject to redemption, and the second by publication, which stated that the sale would be without redemption, it was held, on bill to set aside the sale, and for leave to redeem after the execution of the master’s deed and its confirmation, that the fact that the published notice stated the sale would be without redemption, afforded no equitable ground for the relief sought.</p> <p>2. Such a notice could not have prevented the owner from redeeming, as the right of redemption depended upon the decree and not upon the notice, and the record afforded him notice of his rights; and a notice of sale without redemption would rather attract bidders and increase their attendance.</p> <p>3. Same—whether the decree should not home been satisfied, by the sale of an unsold tract. Where a decree was entered against a party for the payment of a certain sum of money, and made a charge upon two tracts of land then owned by him, either one of which was sufficient to have satisfied the decree, and after decree and before sale such party sold and conveyed one of the tracts to A, who never gave any notice of his purchase, and the master in chancery sold the same in satisfaction of the decree and costs, the other tract being in an adjoining county: Held, on bill by the heirs of A to set aside the sale and master’s deed, and for leave to redeem, that the objection that the other tract was not first sold came too late after the sale and its confirmation.</p> <p>4. Same—misrecital of the term of court in master's deed. Where the master’s deed for land sold, recited the sale as having been made under a decree rendered at the April term, 1865, of the court, instead of the October term, 1864, when it was, in fact, rendered: Held, that the mere misrecital of the term in no way impaired the validity of the deed after its confirmation, and afforded no ground for setting aside the sale.</p> <p>5. Same—inadequacy of price. As a general principle, mere inadequacy of price is not a sufficient cause for setting aside a sale. Thus, when land, worth $3500, was sold for $384.70, subject to redemption, and there was nothing shown to impeach the fairness of the sale or the good faith of the purchaser, this court refused to set aside the sale.</p> <p>6. Same—delap in taking possession as estopping parchasen' from asserting title. Where a purchaser at a master’s sale took no steps to recover possession of the land until more than five years after the sale, it was urged, on a hill by the heirs of a purchaser from the original debtor and owner, that this should estop him from asserting title, as, if he had taken steps in proper time, it would have afforded them notice of the sale in time to have prosecuted a writ of error: Held, that the decrees of the court were notice to all parties, and that they were presumed to know their rights, and that neither party was under obligation to remind the other of his rights or liabilities, and that nothing short of the time fixed by the Statute of Limitations could bar the purchaser’s rights.</p> <p>7. Fraud—undue concealment. To found any claim for equitable relief on the ground of undue concealment, there must be something partaking of the nature of constructive fraud—a non-disclosure of facts which one party was under some legal or equitable obligation to communicate to the other.</p>

Chables Tubmeb, Judge, presiding. This was an action of assumpsit, by John C. Barlow, against Thomas J. Smith, upon a promissory note. The cause was tried in the absence of defendant’s counsel, and a verdict found in favor of the plaintiff. The court overruled a motion by defendant for a new trial, and rendered judgment on the verdict.

Writ of Error to the Circuit Court of Morgan county; the Hon. Charles D. Hodges, Judge, presiding. This was an indictment in the circuit court of Morgan county, against the plaintiffs in error, for riot.

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

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

<p>1. Judicial sale—duty of officer to file certificate of sale. It is the duly of a sheriff, when he makes a sale of real estate under execution, to make out and file the certificate required by the statute within a reasonable time thereafter, so that the parties whose interests are affected may have notice.</p> <p>2. Same—right to redeem after the statutory time. Where land was sold under execution, and no certificate of the sale was filed until nearly nine months after, for the reason that the purchaser neglected to pay the costs, and the owner applied at the sheriff’s office to learn whether any sale had been made, and was informed by the principal deputy that none had been made, and there was nothing to be found in the sheriff’s office to indicate the contrary, so that the owner was prevented from redeeming within the time allowed by the statute: Reid, on bill in chancery, to set aside the sale and to redeem, that the owner was entitled to the relief sought.</p> <p>3. Same—notice of irregularities to purchaser of certificate of purchase. Where the owner of land sold under execution had deposited the redemption money with the sheriff after the time for redeeming, claiming the right to redeem on account of the misconduct of the officer and purchaser, it was held, that notice of this fact to one purchasing the certificate of purchase was sufficient to put him upon inquiry, and that he could not be regarded as an innocent purchaser.</p>

<p>Writ of Error to the Circuit Court of Cass county; the Hon. Charles Turner, Judge, presiding.</p> <p>This was an action on the case, by Joseph Cosner, against Armstead Mains, to recover damages for the seduction of plaintiff’s daughter by the defendant. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for §4000. From this judgment the defendant prosecuted a writ of error to this court. The case is reported in 62 Ill. 465. After affirmance in this court, the defendant entered his motion in the court below to set aside the judgment, for the reason that, at the time of the issuing and service of the summons, pleading and entering of judgment, he was a minor, under the age of twenty-one years, and that he appeared by attorney instead of by guardian. The motion was overruled, and the defendant again brings the case here by writ of error.</p>

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

<p>1. Evidence—of statute of another State. It is error to allow a statute of a foreign State to be proved by parol, but the subsequent introduction in evidence of the Statute book itself will obviate the error.</p> <p>. 2. Same—of the common law of another State. The common law of a foreign state may be proved by parol evidence. The usual course is to make such proof by the testimony of competent persons instructed in the law.</p> <p>3. Same —judicial notice. Courts will take notice of the construction given to foreign statutes by the foreign tribunals, and to enable them to do this, they have always been in the habit of looking to the reports of such tribunals.</p> <p>4. Same—seconda/ry evidence. For the purpose of proving the date of a person’s birth, the Court admitted in evidence a copy of entries, from a leaf in the family bible containing that of the person whose age was in question. The onlyproof to authorize this was the testimony of the witness that he made such copy at the request of one of the family; that the original leaf was somewhat worn and blotched, but could be distinctly read, and that the paper was wet and damaged some, and that he did not know what had become of the original leaf: Held, that the absence of the leaf containing the original entry was not sufficiently accounted for to justify the admission of the copy as evidence.</p> <p>5. Mabbiage—what lorn governs its validity. The law of the State where a marriage takes place, must control as to its validity. Thus, when a person was married in the State of Ohio, and before arriving at the age of eighteen he disaffirmed the marriage by refusing to live with his wife after arriving at such age, it was held, that the laws of Ohio which made the marriage void, must control in this State, as to the question of heir-ship and the descent of property, and that the children of such marriage could not take to the exclusion of children by a subsequent marriage.</p> <p>6. Evidence—instruction as to the amount of proof necessary. It is erroneous to instruct the jury in a civil case that the plaintiff must make out his case by a clear preponderance of evidence. A mere preponderance is sufficient.</p> <p>7. Same—rule in criminal case not applicable in civil suit. Where a deceased person had been twice married, his former wife being alive long after his second marriage, in a contest between a child by the first marriage, with his widow and child by the second, the court instructed the jury, that every person is presumed to be innocent of mime until there is proof of guilt; that when any act is required to be done on the one part, so that the party neglecting it would be guilty of criminal neglect of duty in not having done it, the law presumes the affirmative, and throws the burden of proving the contrary or negative on the other sideHeld, that the instruction was erroneous, as laying down the rule of evidence in a criminal case. The presumption of innocence was improperly thrown into the scale.</p>

Writ op Error to the Circuit Court of Montgomery county; the Hon. Horatio M. Yandeveer, Judge, presiding. This was an action of assumpsit, by John H. Barringer against Easton Whitton, declaring for money had and received by defendant to the plaintiff’s use. It appeared one Brown, as principal, and Cundiflf, as surety, executed their note to the plaintiff for $140, bearing ten per cent interest.

<p>Appeal from the Circuit Court óf Mason county; the Hon. Charles Turner, Judge, presiding.</p> <p>This was a bill in chancery, by Nathaniel S. Tucker and Henry Mansfield, against Samuel C. Conwell, James F. Kelsey and James M. Ruggles. The facts, and object of the bill, are stated in the opinion.</p>

Erastus S. Williams, Judge, presiding. This was a proceeding by the commissioners of Lincoln Park, to confirm a special assessment made by the supervisors and assessors of the towns of North Chicago and Lake View. The circuit court confirmed the same, from which judgment the appellants appealed.

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

This was a hill in chancery, by Jediah F. Alexander against Samuel Colcord, to enjoin the defendant from committing trespasses, or cutting timber, etc., upon the land described in the bill, and to quiet title.

Writ op Error to the Circuit Court of Pope county; the Hon. David J. Baker, Judge, presiding. This was an action of debt against a constable and his sureties upon his official bond. The court below sustained a demurrer to the declaration and rendered judgment against Deen for costs. To reverse this judgment the plaintiff sued out this writ of error.

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Lambert Tree, Judge, presiding.</p>

Writ op Error to the Circuit Court of Hardin county; the Hon. Andrew D. Duff, Judge, presiding. This was an action of ejectment, brought by defendant in error against plaintiff in error, to recover possession of the north half of the northeast quarter of the southeast quarter, the southwest quarter of the southeast quarter, and the northwest quarter of the southeast quarter, in section twenty-two, township twelve south, range eight east, in Hardin county.

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

A. J. Gallagher, Judge, presiding. This was an action on the ease, by Ebenezer Capps against the St. Louis, Vandalia and Terre Haute Eailroad Company, to recover damages claimed by the construction of the defendant’s road in a public street in the town of Vandalia, in front and along the plaintiff’s lots and place of business. The plaintiff recovered, and the defendant appealed to this court. The facts are fully stated in the opinion.