Volume 68 — Illinois Reports

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

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

Monroe C. Crawford, Judge, presiding. This was an action by Henry C. Bowlby, against James H. Crow, before a justice of the peace, and taken by appeal to the circuit court. The opinion states the facts.

Writ op Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was a bill in equity, exhibited in the St. Clair circuit court by August Votrain, a grandson of Etienne Desliares, deceased, who died intestate, leaving complainant and eight other grandchildren his only heirs at law. These other eight grandchildren, together with the administrator of the intestate’s estate, were made parties defendant.

<p>Writ op Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>This was a bill in chancery, brought by the plaintiffs in error, with others, as residents and tax-payers of the town of .Mascoutah, St. Clair county, in the circuit court of that county, to enjoin the collection of certain taxes levied for the purpose of paying the interest on $50,000 in bonds registered in the Auditor’s office, issued by the town of Mascoutah, to the St. Louis and Southeastern Railway Company, in payment of a subscription of that amount by the town to the capital stock of that company.</p> <p>The bill sets forth the following circumstances under which the bonds were issued and the taxes assessed, and claims that it appears therefrom that the bonds were issued and the taxes assessed without any lawful authority.</p> <p>By an act of the legislature, passed March 5th, 1867, (Private Laws 1867, vol. 1, p. 841,) entitled “An act to authorize the city of Belleville and the town of Mascoutah to issue bonds,” it was enacted,</p> <p>“ Sec. 1. That the city council of the city of Belleville, of the county of St. Clair, State of Illinois, may authorize the mayor and register to issue bonds in such amounts as the said city council may determine upon by ordinance, payable in not less than ten years nor more than twenty years, and bearing ten per cent interest per annum. The proceeds of said bonds shall be applied as subscription to stock of any plank, Me Ad am or railroad now being built, or hereafter to be built, leading to or from the city of Belleville. Said bonds shall not be sold or disposed of for less than par; and provided further, that no such bonds shall be issued unless a majority of the tax-payers to whom the question shall be submitted shall have decided in favor thereof.</p> <p>“Sec. 2. This act shall also apply to and be in force for the use and benefit of the town of Mascoutah, in the county of St. Clair.”</p> <p>At a meeting of the president and board of trustees of the town of Mascoutah, held on the 6th day of May, 1867, the following resolution was passed:</p> <p>“Resolved, That an election be held of the tax-payers of the town of Mascoutah, to vote for or against railroad appropriation, authorized by an act entitled ‘An act to authorize the city of Belleville and the town of Mascoutah to issue bonds/ approved March 5, 1867, and that the amount that may be so appropriated shall not exceed twenty thousand dollars.”</p> <p>' At another meeting of the board, held on the 10th day of May, 1867, it was</p> <p>“Resolved, That the election ordered in last meeting be held June 8th, 1867, and that the clerk have 500 election tickets printed, the votes to be ‘For Bail-road Appropriation/ ‘Against Bailroad Appropriation/ and to order fifty posters to be stuck up in said town, giving notice of said election, in both languages.”</p> <p>The board held another meeting on the 2d day of September, 1867, at which “the poll books of the eleption held June 8, 1867, for or against railroad appropriation, were received, and upon examination .it was found that 218 votes were cast for, and 50 votes against appropriation.”</p> <p>At another meeting of the board, held on the 7th day of June, 1869, it was</p> <p>“Resolved, That an election be held July 5, 1869, in C. Lischer’s office, to vote for or against subscribing additional thirty thousand dollars to any railroad leading to or from Mascoutah; this being in addition to the twenty thousand dollars already voted upon; and the clerk to post up notices of said election, and notify the board of registry.”</p> <p>On the 8th day of July, 1869, the board held a meeting, and made this record of their proceedings, to-wit:</p> <p>“The poll book ofthe election held July 5, for subscribing $30,000 additional to railroads, was then examined, and found that, for subscription received 255 votes, against subscription received 28 votes; and on motion of Mollman, it was resolved, that the poll books be approved.”</p> <p>At a meeting of the board, held on the 3d of January, 1870, the following ordinance was adopted :</p> <p>“An ordinance for securing to the town of Mascoutah the benefit to be derived from the construction and operation of the St. Louis and South Eastern Railway.</p> <p>“Section 1. Be it ordained by the President and Board of Town Trustees of the town of Mascoutah, That the twenty thousand dollars voted for railroad purposes by the legal voters of the town of Mascoutah on the 8th day of June, 1867, and additional sum of thirty thousand dollars, voted by the legal voters of said town on the 5th day of July, 1869, for similar purposes (all under an act approved March 5, 1867, authorizing the city of Belleville and town of Mascoutah to issue bonds and make appropriations for railroad purposes,) be subscribed to the capital stock of the St. Louis and South Eastern Bail way Company, at par, upon the request of said, company, by the president of said board of trustees of the town of Mascoutah, for and in behalf of the people of said town and the legal voters thereof; and when said sum of fifty thousand dollars shall be subscribed, it shall be binding on the said town and the tax-payers thereof, upon the following conditions :</p> <p>“First. Said railway shall be located and constructed from East St. Louis to Mascoutah, and the track thereof shall be laid on such location not beyond the present survey opposite north or south of Mill street, measured from the point where Market street crosses the said Mill street.</p> <p>“Second. The said company shall deliver to the board of trustees of said town certificates of the capital stock of said company equal in amountto the said sum of fifty thousand dollars, and whenever regular trains shall be running from East St. Louis to Mascoutah, and a depot is erected within the limits of said town, said company shall be entitled to demand and receive the bonds of said town to the amount of fifty thousand dollars in payment for the said subscription; said bonds shall be in such form, tenor, and for such amount, not exceeding one thousand dollars each, payable at such place and at such times, not inconsistent with the laws under which they are issued, as may be requested by said company, and shall bear interest'at t'he rate of ten per cent per annum, and shall be valid only if registered by the State Auditor, according to an act entitled ‘An act to fund or provide for paying railroad debts of counties, townships, cities and towns/ in ■force April 16, 1869.”</p> <p>And, thereupon, at the request of the president of the St. Louis and South Eastern Railway Company, the president of the board of trustees of the town of Mascoutah made the subscription on the books of said company.</p> <p>The following certificate, under oath, appears on file in the office of the Auditor of Public Accounts;</p> <p>“State of Illinois, County of St. Clair, Mascoutah, Ill., Nov. 14, 1870.</p> <p>“To the Auditor of Public Accounts of the State of Illinois, Springfield, Illinois.</p> <p>“Sir : I herewith transmit to you for registration in your office, under the provisions of the act entitled ‘An act to fund and provide for [paying] the railroad debts of counties, townships, cities and towns/ in force April 16th, 1869, the following bonds, being fifty in number, dated November first, 1870, amounting to ($50,000) fifty thousand dollars, payable on the first day of November, 1890, and bearing interest at the rate of ten per cent per annum, payable annually. These bonds are issued by the town of Mascoutah, in the county of St. Clair, and State of Illinois, to the St. Louis and South Eastern Railway Company, under and by authority of the provisions of ‘An act to authorize the city of Belleville and the town of Mascoutah to issue bonds/ approved March 5th, 1867. And I, as president of said town of Mascoutah, do hereby certify that all the preliminary conditions in the act in force April 16, 1869, required to be done to authorize the registration of these bonds, and to entitle them to the benefits of the said act last referred to, have been fully complied with, to the best of my knowledge and belief.</p> <p>“Valentine Liebig,</p> <p>“ President Board of Trustees of town of Mascoutah.”</p> <p>On the 21st of November, 1870, the Auditor made and transmitted to the county clerk of St. Clair county, his certificate, as required by the act of April 16, 1869, of the estimated rate per centum on the valuation of property in said town requisite to meet the interest to become due to November 1st, 1871, on said bonds, and this per centum amount constitutes the taxes sought to be enjoined. The said act of April 16, 1869, provides that the said per centum shall thereupon (upon the transmission of such certificate to the county clerk) be deemed added to, and a part of, the per centum which is levied by law for purposes of State revenue, and shall be so treated by the clerk in making such estimates and books for the collection of taxes, and that the said tax shall be collected with the State revenue. The cause was heard on a demurrer to the bill, and the demurrer was sustained and a decree entered dismissing the bill. The complainants bring this writ of error.</p>

Thomas F. Tipton, Judge, presiding. This was an action on the case, brought by the city of Bloomington, against Asahel Gridley. The city recovered a judgment for $346, from which the defendant appealed.

<p>1. Damages—exemplary, when allowed. In actions for torts to person or property, the jury may, when the evidence shows the trespass to have been malicious, wilful or reckless, give punitive damages.</p> <p>2. Trespass—possession sufficient title as against a wrong-do&r. A person in the actual possession of land will be presumed to be the owner in the absence of proof of title, and may maintain trespass against any one who wrongfully invades his possession.</p> <p>3. Although possession of land may have been wrongfully acquired, this will not justify even the owner in forcibly entering and taking possession.</p>

<p>Negligence—injury to animal—neglect to give signal of approaching train. Where a locomotive on the defendant’s railroad run against and injured the plaintiff’s mare upon a bridge in a public highway, and it appeared that no bell was rung or whistle sounded to give warning of the approaching train, and the speed of the train not slackened, it was held, that the company was guilty of such negligence as made it liable to the owner of the mare for the damages sustained.</p>

Writ op Error to the Circuit Court of Saline county; the Hon. Andrew D. Hupp, Judge, presiding. This was a bill in chancery, filed by William Musgrave and Josephine Musgrave, his wife, the latter as heir at law of James M. Gaston, deceased, against John F. Conover, Artemissa J. Maxwell, Martha J. Gaston, guardian, etc. By stipulation in this court the writ of error was dismissed as to all of the plaintiffs in error except as to John F. Conover.

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of replevin, brought by Jacob Lehr, the appellee, against Bernhard Otten, before a justice of the peace, for a horse. A judgment was rendered in favor of the defendant. The plaintiff, being unable to perfect an appeal for the reasons stated in the opinion, removed the cause to the county court of St. Clair county by certiorari, under the statute.

Silas L. Bryan, Judge, presiding. This was an action of assumpsit, by Zelotes S. Clifford against Jacob E. Bastón, to recover back money paid on a contract for the purchase of land. The opinion states the facts.

<p>1. Amendment—summons—discretionary. In an action of debt upon an official bond the court below allowed a cross motion to amend the summons by inserting therein the debt claimed, and thereupon overruled a motion to quash the writ, which was assigned as error: Held, that the allowance of the amendment was a matter of discretion and was not improperly exercised.</p> <p>3. Same—continuance. Where the court allowed the summons in debt upon an official bond to be amended by inserting the debt claimed, it was held, that the amendment was not of such a character as to surprise the defendants, and, therefore, no cause for a continuance.</p> <p>3. Pleading and evidence—variance. In a suit upon the official bond of the school treasurer of a township by the “ trustees of schools,” etc., the declaration alleged that the bond was made to the plaintiffs by the name of the “ board of trustees of township,” etc., and the bond offered in evidence was payable to the “board of trustees of,” etc.: H'eld, that there was no variance, as the trustees of schools and the board of trustees were the same officers.</p> <p>4. Surety—liability for money coming to principal’s hands during formar term of office. Where it appeared that moneys came to the hands of a school township treasurer, during a prior term and before the execution of the bond sued on, and it did not appear that he appropriated it to his own use, or that he did not have it in his hands at the time the bond was entered into: Held, that his sureties on the last bond were liable for his refusal to pay over the sum to his successor.</p>

<p>Shebiff’s deed—deraigning title through. Where a sheriff’s deed is relied on as evidence of title, it is necessary to show the judgment and execution that authorized the sheriff to make the sale and conveyance.</p> <p>3. Redemption—by judgment creditor. The right to redeem from sheriff’s and master’s sales after the expiration of twelve, and before the expiration of fifteen months from the day of sale, is alone derived from the statute, and is given only to judgment creditors. Therefore, where the land owned by two as tenants in common is sold on foreclosure of a mortgage given by them, a sale under a redemption made by a judgment creditor of one of them will pass the title of that one only.</p> <p>3. Ejectment—equitable must yield to the legal title. In ejectment the court can not deal with the equities of the parties. An equitable title forms no bar to a recovery, and, by necessary consequence, it will not authorize a recovery. The plaintiff must recover upon the strength of his own legal title, and not upon the weakness of the defendant’s.</p> <p>4. Same—estoppel. Where the plaintiff" in ejectment had attempted to redeem from a master’s sale, after the expiration of twelve months and within the time allowed judgment creditors, the land of one against whom he held no judgment, it was insisted that as one of the defendants in ejectment had received the redemption money as the grantee of the original owner, she was estopped from disputing the validity of the redemption, but it was held that this could not change the legal title. At best.it only created an equity in favor of the party redeeming against the party receiving the money.</p> <p>5. Tenants in common. Tenants in common are considered as solely and severally seized. The)1- have several and distinct freeholds, and there is no privity of estate between them, and the estate of each is liable for his own debts, and the purchaser acquiring title at sheriff’s sale to the interest of a tenant in common, will occupy the place of him whose title he acquired.</p> <p>6. Same—contribution. Where one tenant in common removes an incumbrance from the common estate, the other tenants must contribute to the extent of their respective interests, and to secure such contribution a court of equity will enforce upon such interests an equitable lien of the same character with that which has been removed by the redeeming tenant.</p> <p>7. Where the land of A and B, owned by them as tenants in common, is sold upon foreclosure of a mortgage given b)' them, and after the expiration of twelve months is redeemed by a judgment creditor of A, and a deed made to the creditor, the latter will acquire no title to the interest of B, but it seems that as such creditor succeeds to the position of A, and was compelled to advance money to remove the prior incumbrance as to both A and B, he will be entitled in equity to compel B and those succeeding to his title, to contribute towards the cost of the redemption.</p>

<p>1. Colob ob title—a question of law—good faith one of fact. What is color of title, is purely a question of law, to be determined by the court from an inspection of the papers relied on as constituting color; but the good faith of the party claiming under it, is a question of fact, to be proven and determined as any other fact in issue before the jury.</p> <p>3. A deed which purports to convey the land in dispute, although the grantor had no authority to convey the title, as, when he purported to convey, as administrator of the estate of a deceased person, the land of the deceased, under a special act of the legislature which was unconstitutional and void, is good as color of title.</p> <p>3. Limitation—under act of. 1839—payment of taxes by wrong description. On the trial of an action of ejectment, the defendant, for the purpose of proving payment of taxes on the land for seven successive years, under color of title, offered tax receipts for the years 1856 to 1864 inclusive, which the court rejected for the reason that the land was misdescribed as lot No. 39 N. W. end of survey 117-135. It appeared that the land in dispute was so described in a plat of a survey made at the request of the surveyor, and so assessed from 1856 up to 1864: Held, that the court erred in excluding the tax receipts, as, if the taxes were actually paid the statute was complied with, whether the land was properly described or not.</p> <p>4. Evidence—parol to prone leny of taxes, not proper. The admission of parol testimony to prove the levy of taxes by a town is clearly erroneous. The record of the levy is the best evidence of the fact.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding.</p> <p>This was a petition filed by William H. Stevens, against David W. Allmon, for the appointment of a commission of three surveyors to establish the quarter section corner on the north side of section 22, T. 3 U., B,. 2 E., with the half mile line dividing said section north and south, which was alleged to have been in dispute. Allmon appealed from the final order of the court confirming the report of the surveyors.</p>

<p>1. Marshalling assets—rule not extended to debtor. The rule in equity, that where a creditor has a lien on two funds, and another creditor has a lien on one of them only, the former will be required to satisfy his claim out of the fund upon which the other has no lien, has no application as between the debtor and creditor. It applies only as between different creditors.</p> <p>2. Subrogation—not extended to one paying Ms own debt. Where a debtor gave his note, secured by mortgage on real estate in Kentucky, and his equity of redemption was sold and bid in by another creditor at sheriff’s sale, under execution, and he filed his bill to enjoin the prosecution of an action at law, by an assignee of the note secured by mortgage, and to compel the latter to resort to the foreclosure of the mortgage, or, if that could not be done, and he was compelled to pay the note, that he be subrogated to the equitable right of the assignee to foreclose, and thus compel the purchaser of the equity of redemption to pay the same or lose his purchase, it was held, that the complainant'had no just claim to be thus subrogated, as he was both legally and equitably bound to pay the debt, and that he should redeem from the execution sale or lose the property sold.</p> <p>8. Mortgage—eleetion of remedies. A mortgagee or his assignee has the right to collect the mortgage debt by a suit at law on the notes, or by foreclosure in equity, and the fact that the mortgagor’s equity of redemption has been sold on execution for other indebtedness, will not change the rule or deprive the holder of the mortgage indebtedness of his right of election.</p> <p>4. Same—release of mortgagor from debt. The purchase on execution of the mortgagor’s equity of redemption by a stranger to the mortgage, for other indebtedness, will not affect the right of the mortgagee or his assignee to resort to any or all the remedies he had before. Such a purchase will not render the purchaser the debtor of the mortgagee or his assignee, and release the mortgagor, either at law or in equity. Therefore the mortgagor has no right in equity to compel such purchaser to redeem from his mortgage or lose his debt. The mortgage creditor may do so, if he chooses, by foreclosure.</p>

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

Writ op Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. This was a proceeding in the Marion circuit court, by petition under the statute, instituted by Andrews against Malcolm for a ne exeat.

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

David J. Baker, Judge, presiding. This was a bill in chancery, by John F. Stewart and others, against Henry M. Metcalf, for the specific performance of a written contract of the defendant for the sale and conveyance of a tract of land to Willis C. Piles. Piles sold the land to Amos Sawyer, who performed the conditions named in the written contract to entitle him to a deed.

<p>1. Judicial sale—inadequacy of price. While it is true that mere inadequacy of price at which land is sold at a judicial sale where the right of redemption exists, is not of itself a sufficient ground for setting aside the sale, yet when the price is grossly inadequate, and the sale is irregular, and the owner has no knowledge of the same until after the redemption has expired, the sale will be set aside upon equitable terms.</p> <p>3. Where land worth §3000 was sold for §51.68, it was held that the price was grossly inadequate.</p> <p>3. Shebiff’s sale—of land on execution. Where a sheriff sold land on execution from another county, and failed to file any certificate of the levy, made no demand of the debtor before levy, and filed a certificate of sale which was false in the description of the court from which the execution issued, the date of the execution, and failed to give any term of court at which the judgment was rendered: Held, on bill in chancery, that the sale could not be sustained.</p> <p>4. Same—decree on bill to set aside. Where a hill prayed to have a sheriff’s sale set aside, and was not strictly a hill to redeem, and it appeared that the sale could not he sustained, and that a deed had been made, the court decreed the payment of the money necessary to a redemption, and upon such payment that the purchaser convey the land to complainant: Held, that as the hill showed the necessary facts, the decree was proper as doing complete justice between the parties.</p> <p>5. Chancery—relief conforming to the theory of the bill. Although a hill may not he framed strictly as a hill to redeem from a judicial sale, hut to set aside the sale, yet if the averments show the complainant entitled to a decree for redemption, and the prayer of the hill will authorize that character of relief, it may he granted.</p>

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

<p>1. Injunction—office is to afford preventive, and not affirmative, redress. In our practice, the writ of injunction is only called into use to afford, preventive relief. It is never employed to give affirmative relief, or to correct wrongs and injuries already perpetrated, or to restore parties to rights of which they have been deprived.</p> <p>2. Thus, where a bill ivas filed for an injunction to restrain county officers from issuing and delivering the bonds of a county to a railway corporation, and the proof clearly showed that they had been issued and delivered before the commencement of the suit, the bill was properly dismissed, as the court was powerless to grant the relief sought.</p> <p>8. Same—remedy for disobedience to writ. If the defendants, after proper notice of the issuing of a writ of injunction, or after service, proceed to perform the forbidden act, the proper course to pursue is, to proceed against them for a contempt, and, upon conviction, fine them for disobeying the process of the court, and if the circumstances require it, the punishment may be extended to imprisonment.</p>

Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding. This was an action of assumpsit, by Tarleton W. Chiles, against the Belleville Nail Mill Company, to recover wages as book-keeper. The opinion states the facts.

Writ of Error to the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding. This was a bill in chancery, filed by Pearce, against Renfrow, to subject a tract of land to the payment of partnership debts. The opinion states the ground of the relief sought, and the proceedings.

Writ of Error to the Circuit Court of Jackson county; the Hon. Monroe C. Crawford, Judge, presiding. This was a bill in chancery, filed by Mary L. Saunders against Catharine McIntosh, heir at law of William McIntosh, deceased, to correct a deed executed by the latter in 1823, to one J. Richardson. The opinion states all the facts necessary to an understanding of the case.

<p>1. Municipal subscription'—right to enjoin. The right of a citizen and tax-payer of a county to maintain a bill in equity to restrain those who represent the corporate authority of the county from issuing its bonds without the sanction of law, can not at this day be seriously questioned.</p> <p>2. Same—statute authorizing, construed in respect to majority inf amor of. A statute authorizing a corporate subscription in aid of a railroad enterprise, provided that no subscription should be made or bonds issued unless a majority of all the legal voters of the county should vote for the same, at an election to be ordered, and declared that a majority of legal voters at any such election should be held as a majority of the legal voters. Under this statute, an election on the question of corporate subscription was ordered at the same time with the regular election of county officers, at which 3210 votes were cast. There were 1278 votes cast in favor of subscription, and 1275 against the same: Held, that a majority of those voting upon the question submitted was not sufficient to authorize the subscription, but that a majority of all those voting at the election should vote in favor of the same, was necessary.</p> <p>3. If a special election had been called upon the question of subscription, then it seems that the returns of the election officers of the votes on that question, under such a law, would govern.</p> <p>4. Construction op statutes—when a strict construction prevails. It is a well settled rule of construction, that statutes extending the powers of corporations, or increasing the burdens of taxation, must be strictly construed.</p>

<p>1. School tbeasuber—duty to present note against estate. Where the principal debtor to the school fund of a township dies, it is the duty of the township treasurer to present the claim against his estate for allowance, if due, without an order from the trustees of schools, and for a neglect to discharge such duty he is liable to the trustees on his official bond.</p> <p>3. Same—measure of recovery for failure to Time claim allowed against estate. Where the principal in a note to the trustees of schools dies, and the treasurer neglects to present the same for allowance against his estate, in an action on the treasurer’s bond, where it does not appear but that the sureties are solvent, or that the debt is lost, no more than nominal damages can he recovered.</p> <p>3. Statute—rule as to, whether retrospective. The general rule is, that a statute operates in futuro only, and that it will not he construed to affect past transactions. A retrospective effect will not he given to it unless it clearly appears that such was the intention of the legislature.</p>

Writ of Error to the Circuit Court of Franklin county; the Hon. A. D. Duff, Judge, presiding. This Avas an action of replexdn, brought by Henry W. Goodrich, against Sidney B. Espy, to recover the possession of a horse, Avhich the plaintiff, in his affidavit for the Avrit, stated belonged to William P. Wallace and Frank Bingel.

James M. Pollock, Judge, presiding. This was a proceeding instituted by the appellant against the appellee, to condemn land for a right of way.

<p>This was an information filed in this court by Ebenezer Noyes, against Francis A. Allison, for a rule upon the latter to show cause why his name should not be stricken from the roll of attorneys of this State. The facts material toan understanding of the case appear in the opinion.</p>

<p>Appeal from the Circuit Court of Marion county ■ the Hon. Silas L. Bryan, Judge, presiding.</p> <p>This was an application, by Maria Brewer, for a mandamus against John F. Rogers, treasurer of schools, to compel him to pay the relator a sum due her from the directors of schools as wages for teaching a school. The facts of the case are stated in the opinion.</p>

Writ of Error to the Circuit Court of Madison county; the Hon. Joseph Gillespie, Judge, presiding. This was a bill in chancery, brought by William Wooldridge, against James L. Gage, William Hubbard and William L. Sloss, to set aside a certain deed of trust and a sale thereunder as being made in fraud of creditors. The court below dismissed the bill.

Writ of Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.

Silas L. Bryan, Judge, presiding. This was an action of assumpsit, brought by John H. Hall, as surviving partner of the firm of Donaldson & Hall, against James H. Kennedy, Burrell Kennedy and Washington Walker, as partners composing the firm of Walker, Kennedy & Co., upon a promissory note. The following is a copy of the same: “St. Louis, Mo., June 2d, 1858.

<p>1. Municipal cokpobation—liability for injury from, want of repair to gutters on streets. The legal liability of a city to lay out a street, build sidewalks, construct gutters, and grade and pave streets, is voluntarily assumed; but when the city constructs these improvements for the benefit of the public, it then becomes its duty to see that they are kept in repair.</p> <p>% Where a city suffered a gutter in a street, which it had constructed, to get out of repair, so that the water, which it should have carried off, was thrown upon the lots of an individual near by, and such person’s buildings damaged in consequence of the flooding of the lots, it was held, that the city was liable for the damages so caused. .</p> <p>3. Error—which does no prejudice. Although a refused instruction might properly have been given, yet when it is evident that its refusal worked no prejudice to the party asking it, the judgment will not be reversed for such error.</p>

<p>1. New trial—on ground of excessive damages. In an action for breach of contract to marry, the jury are the sole judges of the amount that shall be axvarded as damages. A new trial xvill not be granted on the ground that the damages are excessive, except when it is apparent that the jury have misunderstood the evidence, have been governed by passion or prejudice, or have acted with a reckless disregard of the evidence.</p> <p>3. Damages, excessive—breach of man'riage contract. In an action for breach of a contract to marry, xvhere the proof showed the defendant to be worth about $35,000, a verdict assessing the plaintiff’s damages at $3600 was held not excessive.</p> <p>3. Evidence—pecuniary circumstances of defendant. Evidence of the pecuniary circumstances ot' the defendant is properly admissible in evidence on the trial of an action for a breach of a contract to marry. The married women’s acts have not changed the rule in this respect.</p> <p>4. And in such a suit it is not error to admit evidence of the pecuniary circumstances of defendant at the time of the engagement, as it tends to show what he is worth at the time of the trial. He may show that ho has sustained loss, if such be the fact, and thus show himself to be worth less.</p> <p>5. Married women. Since the passage of the several acts known as the “married woman’s law,” the husband is left to support his wife, so long as she remains with him and discharges her duties, as he was before. And the court are not prepared to hold, under the later enactment on the subject, that a wife may abandon her husband without his consent, for the purpose of acquiring earnings for her separate use, or that she majv without the consent of the husband, neglect or avoid the duties that the relation imposes on her, for such purpose.</p>

<p>1. Neg-ltqence—action for death caused by—mining company. Where a mining company failed to comply with the requirements of the act of 1879, to provide “for the health and safety of persons employed in coal mines,” which required “the top of each shaft” to he “securely fenced by vertical or flat gates properly covering and protecting the area of the shaft,” and in consequence of which an emploj'ee, while using due care, fell into a shaft and was killed: Held, that the company was liable in an action on the case, to his personal representatives, for the death.</p> <p>3. The fact that the accident occurred in a few days after the statute went into effect, and before the company had time to comply with its provisions, presents no defense to the action, as, if the company was not prepared to comply with the law, it should have suspended operations until it was able'to do so, and not having done so, its failure must be regarded as wilful.</p>

Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, brought by John Johnston against George W. Stipp, to recover back an alleged over-payment upon a note. The declaration contains the common counts only. The plaintiff recovered the sum claimed by him, and the defendant appealed.

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

<p>1. Injunction—damages on dissolution. Where an injunction is dissolved, that being the only relief sought by the bill, the suit may be treated as ended, and a suggestion of damages at a succeeding term comes too late, and the court has no authority to assess the same on such suggestion.</p> <p>2. Same—damages can not be assessed in frnor of a party not named in suggestions. On the dissolution of an injunction, upon suggestion of damages as to certain persons, it is erroneous for the court, in its assessment, to include a sum to a defendant in whose favor no written suggestion has been made.</p> <p>3. Chancery—evidence must be preserved. The rule in chancery requiring the evidence upon which a decree is rendered to be preserved in the record, applies to an order of the court assessing damages on the dissolution of an injunction; and unless the evidence is preserved, the decree will be reversed as to the assessment.</p>

<p>1. Malicious prosecution. In order to maintain a suit for malicious prosecution for procuring an indictment against the plaintiff, malice and the want of probable cause must be shown. Malice maybe inferred from the want of probable cause, but the latter can not be inferred from the former. The gist of the action is want of probable cause.</p> <p>2. Same—-facts showing malice and want of probable cause. Where the defendant procured an indictment against the plaintiff for perjury in making an affidavit that the defendant was insolvent, in a suit wherein the latter had signed a bond for costs, knowing, or having good reason to believe, the affidavit to be true, from his embarrassed circumstances financially, this was held sufficient to show not only that the defendant acted without probable cause, but also with malice.</p> <p>8. Damages, excessive—malicious prosecution. Where the defendant procured the plaintiff to be indicted for perjury, under circumstances showing malice and want of probable cause, a verdict for §1000 was held not excessive.</p>

Writ of Error to the Circuit Court of Effingham county; the Hon. Hiram B. Decius, Judge, presiding. These two cases were proceedings instituted by the plaintiff in error to condemn lands for right of way, under the statute of 1852. The defendants appealed from the report of the commissioners to the circuit court, and the damages were assessed by a jury.

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

Writ of Error to the Circuit Court of Clinton county; the Hon. Silas L. Bryan, Judge, presiding. This was a proceeding instituted by Lydia C. Morgan, against John L. Johnson, her former guardian, for an account.

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

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

<p>Appeal from the Circuit Court of Franklin county; the Hon. Andbew D. Dupe, Judge, presiding.</p>

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

<p>Writ op Error to the Circuit Court of Effingham county; the Hon. Hiram B. Decius, Judge, presiding.</p>

<p>1. Contract—construed, as to what was a performance. Where the plaintiff's in an action of assumpsit, claiming property, had brought an action of trespass against A in respect to the same, which the defendants had purchased of A, and the plaintiffs and defendants entered into a written agreement that the former would prosecute no suit against the latter on accoifnt of the property so purchased, but should prosecute the suit then pending against A, and if successfully prosecuted, the defendants guaranteed to plaintiffs $700, and the pending suit against A was dismissed for want of a declaration, but a recovery was had upon a second suit for the same cause of action: Held, that the defendants were liable upon their guaranty, as the true intent of the parties was that defendants should pay if the plaintiffs made their title good, without reference to the identical suit then pending.</p> <p>3. Evidence—parol testimony to identify subject matter of written corotract. Parol testimony is admissible to apply a written agreement to the subject matter to which it relates, as, to show that the property mentioned in a contract was the same as that for which a suit was prosecuted, when that is a material question.</p>

<p>1. Assignment—of notes, whether as passing an interest or for collection. Where a father, in consideration of his son’s absolute undertaking to pay him $3000 per annum during his life for his support, assigned and transferred to the son a large sum in promissory notes, with the agreement on the part of the son that, after first deducting the amount furnished the father with interest thereon, to pay over two-thirds of the remainder collected on such notes to a brother and a sister, according to the last will of the father: Held, that, by such arrangement, one-third of the notes so transferred was vested absolutely in the son upon a sufficient consideration.</p> <p>3. Promissory note—whether absolute or conditional. Where a son, in consideration of his father’s transfer to him of promissory notes amounting to about $50,000, gave his note to the father for the payment of $3000 per annum during his natural life for his support, but to become void at his death: Held, that the son’s note, even when considered in connection with the contract transferring the notes, was an absolute and unconditional undertaking to pay, and would be none the less binding should the transferred fund of the notes wholly fail.</p> <p>3. Trust—voluntary—when binding. An agreement for the creation of a voluntary trust, so long as it remains executory, will not be regarded as binding in equity; but where there is a voluntary gift or conveyance of property in trust, and nothing remains to be done by the donor or grantor to complete the transfer of the title, the relation of trustee and cestui que trust is established, and the equitable rights and interests growing out of the gift or conveyance, though made without consideration, will be recognized and enforced in chancery, except as against creditors and bona fide purchasers without notice.</p> <p>4. Where a father assigned and transferred to his son a large number of notes for a considerable sum of money, in consideration of the son’s undertaking to pay $3000 per annum during the father’s life for his support, and under an agreement that the son was to collect such notes, and, after deducting from the proceeds the amount paid his father with interest, was to pay to two other parties, after the father’s death, two-thirds of the remainder, according to the last will of the father: Held, on bill by the father against the son for an account and the surrender of the uncollected notes, that a trust was established as to two-thirds of the proceeds of the notes after deducting, what might be paid to the father, which was binding upon the parties, and that the eestuis que trust took a vested interest in the gift, liable to be affected by the exercise of the testamentary power by the donor; and that as the trust was coupled with an interest in the son to reimburse himself for his liability to the father, he was entitled to retain the property until the death of the father, in the absence of any abuse of trust on his part.</p>

<p>Appeal from the Circuit' Court of Saline county; the Hon. AxdPvEW D. Deep, Judge, presiding.</p>

<p>Ejectment—assessment for improvements in favor of defendant. The legislature intended, by the enactment of the 55th section of the chapter entitled “ Ejectment,” to afford a speedy method of adjusting the value of permanent improvements made prior to notice of the adverse title, and the section embraces minor as well as adult plaintiffs.</p>

<p>1. Wbit of possessioh—how obtained. The practice in this State, where the decree orders the defendant in a chancery suit, on the execution of a deed by the master in chancery, to surrender possession, is, to serve a copy of the decree on the defendant in possession, or if others are in under him as purchasers, tenants, or otherwise, then upon them, and on the possession being refused, the court, upon affidavit of the facts, will award a writ of possession.</p> <p>3. But where the decree of sale fails to order the surrender of possession, and the person in possession refuses to give it up, the court will, on proper notice and motion, make such an order, and upon like service of a copy, and demand of possession, will, on motion, without notice, order the part}' to deliver possession, and then on affidavit of the service of the order, and a refusal to obey it, a writ of assistance directed to the sheriff to put the purchaser into possession, issues, of course, on motion, without notice.</p> <p>3. Same—petition for, and parties to. A petition for a writ of possession which fails to show that the defendants against whom the proceeding is brought, are in possession of the land, is fatally defective. If persons are in possession as the tenants of the defendant in the original decree, or otherwise, that fact should be set forth in the petition, and they be made parties, and served with notice, and, if the facts warrant it, an order should be made upon them for possession, and on a failure to comply with it, the writ should be awarded against them and the original defendant.</p>

<p>1. Witness—competency of wife of party in respect to Tier separate property. Where a defendant in replevin pleaded that the property replevied from him was the separate property of his wife, it was held, that the wife, under the act of 1867, was a competent witness to prove the execution of a bill of sale of the property by the plaintiff to’ her, and to the fact and manner of payment by her.</p> <p>2. The fifth section of the act of Feb. 19, 1867, relating to witnesses, making the husband and wife witnesses for and against each other in litigation concerning the wife’s separate property, is not restricted to cases where she is plaintiff or defendant, and where her title is admitted, but is general.</p> <p>3. Replevin—to recover goods sold. Where a party sold mules by a bill of sale which was unconditional, it was held, that he could not maintain replevin against the purchaser or her husband on the ground that the price had not been paid.</p>

Silas L. Bryan, Judge, presiding. This was an action of debt, upon the official bond of Matthew S. McCormack, as sheriff, against him and his sureties A general demurrer was overruled to defendants’ pleas, and the plaintiffs abiding by their demurrer, bring the cause to this court by appeal.

Writ of Error to the Circuit Court of Saline county; the Hon. Andrew D. Duff, Judge, presiding. This was an action of assumpsit, brought by John Hall against Robert M. Steel, upon an order drawn by Charles Grothe on the defendant, in favor of the plaintiff. A trial was had, resulting in a judgment in favor of the defendant.

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

Writ of Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of debt, by August H. George against Jacob Bischoff and others, upon an appeal bond wherein Bischoff was principal.

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

Writ of Error to the Circuit Court of Clay county; the Hon. Richard S. Canby, Judge, presiding. This was a bill in equity, filed by Sarah J. Hale, John M. Hale and Wm. W. Hale, executors of the last will of Reuben C. Hale, deceased, against William H. Morgan, William H. Hanna and Harriet B. Weed, to foreclose a mortgage given by Morgan to Reuben C. Hale in his lifetime. The facts appear in the opinion.

Silas L. Bryan, Judge, presiding. This was a petition, filed by William H. Stevens against David W. Allman, Henry Winter and Samuel Grunendyke, for the appointment of a commission of three surveyors, to settle certain disputed lines dividing their lands.

<p>1. Specific performance—parol contract for sale of land. Where the weight of the evidence showed a verbal contract for the sale of forty acres of land some nine years before the filing of the bill, and the payment in full of the price in a horse, and the taking of possession by the purchaser, the making of improvements on the land, and the continuance of such possession for several years, when the vendor, finding the premises unoccupied, resumed possession and refused to convey, it was held, that the purchaser was’ entitled to a specific performance of the contract, the Statute of Frauds not being pleaded.</p> <p>3. Same—-evidence to defeat. On bill for specific performance of a verbal contract for the sale of land, proof on the part of the vendor that he had verbally sold the land to the deceased husband of the complainant in his lifetime, was regarded as not material to the issue, the question being whether he had sold to the complainant. The equities of the heirs of the deceased party could be settled in another suit.</p>

<p>1. 'Evidence—where no objection is made below, no error can be assigned for its admission. Where evidence is received, or a witness is examined without objection to his competency, this court will presume that all grounds of exception were waived, and the party can not object in this court for the first time.</p> <p>2. Justice’s court—right of recovery not affected by the form of action named by the justice. As there are no written pleadings in justices’ courts, if the plaintiff proves any ground for a recovery, he will be entitled to a judgment, if the justice had jurisdiction of the subject matter, and this without regard to the form of action named by the justice. And the same rule applies on the trial of the cause by the circuit court on appeal.</p> <p>3. Thus, where it appeared that a deceased party in his life-time had bought a wagon of the defendant, and had paid only $10 on the price, and the defendant, after his death, took possession of the same, and refused to give it up on demand, on suit by the administrator, originally commenced before a justice of the peace, who named the action trover, the plaintiff obtained a verdict and judgment for $10, the proof showing the wagon to be worth at least $35: Meld, that the verdict could be sustained, as the justice had jurisdiction of an action of debt or assumpsit.</p>

<p>1: Quo wabbanto—what the commencement of proceeding by. The filing of an information, in the nature of a guo wa/rranto, without notice or leave, will not be regarded as the commencement of the suit. It will not be considered as commenced until leave of- the court is obtained to file the information.</p> <p>2. Same—of the summons. The Practice act requires that the first process in all actions in courts of record shall be a summons, except when special bail is required, which shall be returnable to the first day of the next term of court, unless ten days shall not intervene, in which case it shall be returnable to the first day of the succeeding term. The practice in quo warranto, in this respect, is the same as in civil cases, and the defendant is entitled to be summoned ten days prior to the first day of the term to which the writ is returnable.</p> <p>3. Same—process and service to authorize default. Where leave was granted to file an information, in the nature of a quo warranto, during term time, and a summons ordered to be issued, returnable to the same term, it was held, that a default taken upon the service of such summons was irregular and erroneous.</p> <p>4. Same—sufficiency of information. Am information, in the nature of a quo warranto, which charged that the defendant “is unlawfully executing the duties and exercising the powers of supervisor of the village of Cahokia, etc., and that he hath since, etc., unlawfully executed the duties and exercised the powers of supervisor, etc., and received and enjoyed the emoluments thereof,” was held entirely too indefinite and general, as it failed to charge the defendant with intruding into or usurping the office, or specify in what way he unlawfully executed the duties and exercised the powers of the office.</p> <p>5. The same certainty that is required in an indictment is necessary in an information in the nature of a quo warranto, and therefore all the material facts constituting the offense must be precisely alleged, and not by way of argument or recital.</p>

<p>!• Promissory note—in equity assignee before due talc.es subject to malcer's defenses. Where the assignee of a promissory note acquired by him before maturity, proceeds to enforce payment in a court of equity by foreclosure of mortgage or other lien, he will occupy the same position that ^ie Payee would, and the maker may interpose any defense that would defeat a recovery in the hands of the payee,</p> <p>3- Consideration—of notes given for land. Where a purchase of land made under a bond or contract which provides for a conveyance of the title to the land upon payment of the notes given for the unpaid price, the true consideration of such notes, is not the warranty deed to be made, but the title to the land with which the purchaser is to be invested. If the title fails or can not be given, the consideration fails.</p> <p>3. Vendor and purchaser—right of vendor or his assignee to enforce payment. In this case, the vendor, a married woman, sold a tract of land, giving the purchaser a bond for a warranty deed on payment of the notes given for the purchase money. The vendor sold and assigned these notes and gave the assignee a quit-claim deed to the land as a security for their payment. It appeared that the title was held by a trustee in trust for the use of the vendor during her natural life, and at her death for others: Held, on bill in chancery by the assignee against the purchaser to compel the payment of the notes, he having tendered a deed to the purchaser, that the complainant was not entitled to a decree for the payment of the purchase money, because he had not the ability to comply with the terms of the bond, and convey the title in fee to the purchaser.</p> <p>4. The rule of law is different where the purchaser accepts a warranty-deed for the land, gives his notes for the price, and enters into possession. In such case the purchaser can not resist payment of the notes until evicted under paramount title.</p> <p>3. Cross-bill—its nature and object. The object of a cross-bill is to enable a defendant to obtain affirmative relief. It must be confined to the subject matter of the original bill, and may be filed against the complainant,'or against him and a co-defendant. In most other respects it is governed by the same rules of practice as an original bill.</p> <p>6. Same—pa/rty to—rescission of contract. In a suit by an assignee of the vendor of land to collect the purchase money, where both the vendor and assignee are unable to make the title contracted for, the original vendor is a necessary party to a cross-bill by the purchaser to rescind the contract, and for the recovery of the purchase money paid, and for the value of improvements made upon the land before discovery of the defect in the title.</p>

Joseph Gillespie, Judge, presiding. This was a suit by the city of Alton against George Kirsch and Balser Schiep, to recover a penalty for a violation of an ordinance of the city.

<p>1. Mortgage—-foreclosure and sale for part of debt,' when a release of lien as to all. -It has been held by this court, that a party holding indebtedness secured b)r mortgage might foreclose "the mortgage for any sum then due, and no more, and that when he elects to sell under a power in the mortgage, or to foreclose in chancery, he could only sell or foreclose for the amount then due, according to the terms of the mortgage, and that it of necessity operated to release the security for the amount not due.</p> <p>2. Where a mortgagee foreclosed his mortgage as to the last of three notes falling due, the first having been paid and the second then due, and a sale was had of the mortgaged premises, it was held, on a second bill by him to foreclose as to the second note, that the lien of the mortgage was released as to creditors and as to parties holding the land under the prior foreclosure and sale.</p>

<p>Doweb—what will bar. The taking of a life estate or any estate that can be enjoyed, under the husband’s will, will bar the wife’s right to dower in all the lands of which the husband was seized at any time during coverture, whether the same has been aliened during his life or not.</p>

<p>1. Ejectment—new Mai under the statute. Where a recovery in ejectment was had March 6,1871, and the defendant paid all the costs on the 28th of the same month, hut failed to pay the damages, which were assessed at one cent, and on March 4, 1872, entered his motion for a new-trial under the statute, but offered no evidence of the payment of the costs until March 14,1872, and the court, on the 28th of the same month, overruled the motion: Held, that the defendant, having paid the costs and made his application within one year, had substantially complied with the statute, and was entitled to a new trial, notwithstanding he failed to pay the damages.</p> <p>2. Bill op exceptions —amended after term. While it is true that a bill of exceptions, after the term at which it is filed, can only be amended upon the order of the court in term time, on proper notice to the opposite party, yet where such amendment is made and certified, and it does not appear that it was made in vacation or without notice, and no motion is made to strike it from the files, this court will regard it as rightfully made and consider the same.</p>

Writ of Error to the Circuit Court of LaSalle county; the Hon. Edavin S. Leland, Judge, presiding. This was an indictment against Michael Lyons and Stephen Shevelin, for burglary. The facts are fully stated in the opinion.

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

<p>1. Righht of way—right of possession under condemnation. Under the act of 1852 relating to the right of way, where an appeal was taken from the decision of the commissioners, if the party seeking the condemnation desired to enter upon and occupy the property pending the appeal, it was necessary that a bond should be given to the person whose property was sought to be taken, to secure the payment of the judgment that might finally he rendered. Possession taken forcibly pending an appeal, without giving such bond, is illegal, and may be recovered back in an action of forcible entry and detainer.</p> <p>2. Same—effect of new constitution on proceedings under act of 1852. The provisions of the constitution of 1870 giving the right of trial by jury, in all cases for the condemnation of land by incorporated companies, were in force from and after the adoption of the constitution, without the aid of specific legislation to enforce them, and repealed so much of the act of 1852 as authorized the land to be entered upon before a trial by jury.</p> <p>3. Statutes — construction—iohet7ier directory or mandatory. Where special proceedings are authorized by statute, by which the estate of one person may be divested and transferred to another, every material provision of the statute, especially those designed for the owner’s benefit and security, must be strictly complied with. A statute providing how the property of an individual shall be condemned for public use, is not merely directory but is mandatory.</p>

<p>1. Contracts—rule of construction. In the construction of written contracts, the intention of the parties to the contract is to be determined from the whole instrument, and, when- the intention can be so ascertained, it is the duty of courts to carry it into effect.</p> <p>2. If a contract contains ambiguous words or words of doubtful construction, they will be construed most strongly against the party who executed the same, as the other party is not presumed to have chosen the expression of doubtful meaning.</p> <p>3. Promissory note—construed as to time of payment. Where a promissory note read as payable “on or by the first of March, eighteen and sixty-eightHeld, that it was the manifest intention of the parties to make the same payable on the first day of March, 1868, and that the court should so enforce it.</p>

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action brought by Mortimer Millard against John Short, to recover for services as agent, in the city court of East St. Louis. The plaintiff recovered judgment, and the defendant appealed to the circuit court, where the plaintiff again recovered judgment for $500 and costs. From this judgment the defendant appealed to this court.

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>This was an action, commenced by William Boyce, Jr., against Henry Brown, before a justice of the peace, for the value of a heifer of the plaintiff. The facts are fully stated in the opinion.</p>

<p>Iktebest—gxidgment on condemnation of land. The judgment of the circuit court, upon appeal from commissioners’ assessment of damages on condemnation of land for right of way under the act of 1853, will draw six per cent per annum interest, where possession of the property is taken and retained by the applicant for condemnation.</p>

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

Writ of Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of debt on a lease, brought by Henry T. Blow against William E. Miller.

Writ of Error to the Circuit Court of Marion county; the Hon. Silas L. Bryan, Judge, presiding. This was an action of assumpsit, brought by John Wall against Henry D. Kingsbury, upon an accepted order drawn on him in favor of Wm. B. Jarvis, and assigned by Jarvis to the plaintiff.

<p>Former recovery—-plea of. In a suit upon a promissory note, the defcnclant pleaded a former recovery upon the same cause of action in a justice’s court, held by a police magistrate of the city of Centralia, after the new constitution went into effect, for the sum of §269.65: Held, that the plea was clearly bad, as the police magistrate had no jurisdiction of the subject matter to that amount, under the new constitution.</p>

Writ OF Error to the Circuit Court of Franklin county! the Hon. Andrew D. Duff, Judge, presiding. This was a bill in chancery, by Zachariah Hickman against John S. Smith, administrator of the estate of William E. Smith, deceased, to have a judgment recovered by William E. Smith against the complainant, declared satisfied, etc., on the ground of a payment made to the intestate in his life time. The opinion states the material facts.

<p>1. Negligence—neglect to ring bell or sound whistle. In a suit against a railroad company for killing a cow at a road crossing, an omission on the part of the company to ring a bell or sound a whistle at a distance of at least eighty rods from the crossing, constitutes a prima facie case of negligence in the company.</p> <p>2. Evidence—whether negative or affirmative. Where a witness testifies positive^ to having heard the bell on a locomotive engine when it was first rung, and how far the engine was then from a public crossing, it is not evidence of a negative character.</p> <p>3. Question oe eact. In a suit against a railroad company to recover damages for the killing of the plaintiff’s cow, whether there was contributory negligence on the part of the plaintiff", and if so to what extent, and whether the negligence of the company probably caused or contributed to the injury, are questions of fact to be determined by the evidence.</p> <p>4. New teiai—on finding of facts, when evidence is conflicting. Aver; diet will not be set aside where the evidence is conflicting, and the facts and circumstances, by a fair and reasonable intendment, will authorize the finding, notwithstanding it may appear to be against the strength and weight of the testimony.</p>

<p>1. Married women—separate property of. Where a married woman with money given her by her mother, and earned before her marriage, which was in 1863, paid for a filly which her husband had bought but was unable to pay for, and it was delivered to her in good faith as her property, and the husband, as her agent and by her consent, traded the filly for a horse, it was held, that the horse was the separate property of the wife, and that the husband could not mortgage or sell the same without her assent.</p> <p>2. Same—husband may act as his wife’s agent. An instruction in a suit between a married woman and a third party, in respect, to her separate property, which is liable to a construction that she could not”trade the same through her husband, as her agent, is objectionable, and may be properly refused.</p> <p>3. Instruction—should be based upon the evidence. Where there is no evidence upon which to hase an instruction, there is no error in refusing to give it.</p>

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

Silas L. Bryan, Judge, presiding. This was an action of assumpsit, by Eebecca J. Quick, against John P. Phillips, upon a promissory note. The facts are stated in the opinion.

Henry S. Baker, Judge, presiding. This was an action of covenant, brought by Benjamin L. Dorsey against the St. Louis, Alton and Terre Haute Eailroad Company. The plaintiff recovered judgment against the defendant for $1900, and costs of suit.

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

Charles H. Wood, Judge, presiding. This was an action of replevin, brought by Charles E. Shelton against John Franklin. The opinion of the court shows the state of the pleadings and the facts of the case.

Joseph E. Gary, Judge, presiding. This was a petition by Mary A. Taylor against Anton Kearn, for dower. The facts of the case appear in the opinion of the court.

Joseph E. Gary, Judge, presiding. This was a suit, brought by attachment, by The City Insurance Company of Providence, R. I., against The Commercial Bank of Bristol, for the collection of a debt. William R. Taylor, the receiver of the bank, appointed as such by the Supreme Court of Rhode Island, appeared and interpleaded, claiming the property as receiver, under the decree, and also moved to quash the writ of attachment.

<p>1. KEOLiesucE—neglect of railroad to fence its road. Where a railroad company lias been operating trains over its road for more than six months, and has failed to fence its track, and while passing through the plaintiff’s farm with its train, kills plaintiff’s stock upon the track, the company will be liable to the plaintiff for the value of such stock.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>On January 16, 1859, Winchester Hall borrowed of the Connecticut Mutual Life Insurance Company the sum of $8000, to be paid in five years, with ten per cent per annum interest, payable semi-annually, to secure the payment of which loan, Hall and his wife gave a mortgage, ivith power of sale, on certain premises in the city of Chicago. Hall having failed to pay certain installments of the interest, and the company, having elected, in accordance with the terms of the mortgage, to declare the entire principal due, on March 31, 1862, filed a bill in chancery to foreclose the mortgage.</p> <p>Hall was only constructively notified of the pendency of the suit, by publication of notice in a newspaper. August 4, 1862, a decree of foreclosure pro eonfesso was entered, and on September 15, 1862, the mortgaged premises "were sold under the decree to the complainants in the bill for the satisfaction of the mortgage debt.</p> <p>On November 13, 1867, Hall filed his petition to open the decree, and to be heard touching the matter, and be permitted to appear and answer the bill of foreclosure under the 15th section of the Chancery act, which authorizes such proceeding within three years after such a decree. In excuse for not sooner filing the petition, within the three years, the petition alleges that at the time of filing said bill, and ever since, the petitioner and his wife were inhabitants and residents of Louisiana; that the late war of the rebellion was in existence from July 13, 1861, to June 13, 1865; that he had no knowledge of the rendition of the decree until within a few months of filing the petition, and that three years had not elapsed since the close of the war. Answer and replication thereto were filed, and on final hearing the court below rendered a decree dismissing the petition, from which Hall appealed.</p> <p>The record discloses this state of facts: That formerly Hall was engaged in the practice of law, in partnership with one Bush, at Thibodaux, the county seat of the parish of Lafourche, in the State of Louisiana, whence he removed to Chicago, in 1855, and there resided until the spring of 1861. In April in that year, in pursuance of an arrangement made through a previous correspondence with his former partner, Bush, he left Chicago for Thibodaux, for the purpose of resuming the practice of law at the latter place in partnership with Bush. Hall states that he left Chicago on the Thursday evening next after the fall of Fort Sumter, which would have been the 18th of April, 1861; that he reached New Orleans the following Saturday, and reached Thibodaux on the following Monday or Tuesday. In July, 1861, he came up to Louisville, Kentucky, for his family, and returned with them, in August, to Thibodaux, and remained there until March, 1862, when he joined the confederate army as a volunteer, and served in that army until the close of the war. He then returned to Thibodaux, and there continued to remain until December, 1867, when he again removed to Chicago. Thibodaux came into possession of the United States forces in October, 1862, and continued in their possession until the close of the war, with the exception of a few weeks in June and July, 1863. Thibodaux was some sixty miles from New Orleans, and communication therewith was kept open from the former place while held by the Union forces. By the President’s proclamation of non-intercourse, of date August 16, 1861, among other places excepted, were such parts of States “as may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of said insurgents.” By proclamation of date January 1, 1863, in regard to the slaves who were to become free, the President, in designating the States then in rebellion, names Louisiana, (except the parishes of Lafourche, Terrebonne, etc.) In the fall of 1863, Hall was in Thibodaux as a paroled prisoner.</p> <p>At the time when Hall left Chicago, there were two or three semi-annual payments of interest in arrear, and, as testified, the property was not considered worth the mortgage debt.</p>

<p>1. Vendor and vendee—right of vendee to recover baek payments. ¡Where the plaintiff purchased land to be paid for in installments with interest, and was to receive a deed upon making payment of the second installment, giving his note secured by mortgage upon the premises for the balance then due, and time was made of the essence of the contract, and it providing that on failure to make any payment when due, the vendor might declare the same forfeited, together with all payments, upon giving ten days’ notice thereof in writing, and the vendee being in default as to the second payment, a forfeiture was declared pursuant to notice, and the vendee leased the land of the vendor, there being no tender of any deed before the declaration of forfeiture: Held, in a suit by the vendee to recover back the purchase money paid, on the ground of a rescission of the contract, that the vendor was not bound to tender a deed before declaring the forfeiture, and that the action would not lie'.</p> <p>3. The only cases in which the purchaser of real estate is entitled to recover back the money he has paid on the contract of purchase are: 1st, where the contract has been rescinded by mutual consent and agreement of the parties; 3d, where the vendor is unable or unwilling to perform the contract on his part; and 3d, where the vendor has been guilty of fraud in making the contract.</p> <p>3. Same—where sale is forfeited purchaser can not recover back payments. Where a contract of sale of real estate has been declared forfeited pursuant to its own terms, on account of the default of the purchaser in making further payments, he is not entitled to recover back what he has paid.</p> <p>4. Change of venue—negligence in applying for. Where an application for a change of venue was not made until the first day of a term of the court, and the petition stated that a knowledge of the cause on which the application was based, did not come to the applicant until since the last term of the court, which was denied: Held, that it was properly denied, as the petition failed to show but that the application might have been made in vacation. Knowledge of the fact might have come to him on the next day after the last term.</p>

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

Lambert Tree, Judge, presiding. This was an action on the case, brought by Philip W. Later, Edward P. Whaling, and William J. Whaling, partners, for the use of The Union National Bank of Chicago, against the Anchor Line, The Erie and Western Transportation Company, The Philadelphia and Erie Railroad, The Erie and Pittsburg Railroad, J. C. Evans and E. T. Evans. Judgment was rendered in favor of the plaintiffs for $1400 against all the defendants, and they appealed.

Writ of Error to the Criminal Court of Cook county; the Hon. W. W. Farwell, Judge, presiding. This was a suit, brought by the city of Chicago against David Wiggins, to recover the penalty for violating the provisions of an ordinance relating to auctioneers in the city.

William W. Heaton, Judge, presiding. The jury assessed the defendant’s damages at §500, and he, not being satisfied, brings the case to this court on appeal.

<p>Railkoad—liability for overcharge in passeng&r fa/re. This was a suit to recover of a railroad company for charging a passenger on its road ñire exceeding three cents a mile, under the act of April 13, 1871, and compelling the payment of the rates established by the company. At the time, the railroad commissioners had not assigned the defendant’s road to any class, as required by the act, and there was no proof that the charge made was unreasonable, or to what class the road did belong: Held, that the plaintiff could not recover.</p>

<p>1. Variance—note in German not so described. Where the declaration, described the notes sued on according to their tenor and effect, without stating in what language they were written, the fact that the notes are in the German language will not constitute a variance. If described as made in the English language, the objection of variance might have been well taken.</p> <p>3. Insurance—evidence of assessment on note given for insurance. Where the charter of an insurance company made the certificate of the secretary prima facie evidence in case an action was brought for the recovery of any assessment, it was held, in an action upon a note payable in assessments given for insurance, that the secretary’s certificate was prima facie evidence of a valid assessment and the amount thereof, and that such certificate was intended to relieve the company from preliminary proof as to risks, losses and assets, in order to show the right to levy the assessment.</p> <p>3. Same—validity of assessment—one director absent. It was urged that an assessment made upon notes given an insurance company was invalid, because made at an extra meeting of the board of directors, when one of the directors was absent, and had not been personally notified of the meeting. It appeared that the secretary left either a written or a verbal notice of the meeting for this director, at his place of business, with his brother. The by-laws required such notice to be given “by mail or other waysHeld, that the notice to the director was sufficient.</p> <p>4. Evidence—secondary, of notice. In an action to recover assessments upon notes given for insurance, the court admitted in evidence the duplicate notice of the assessment, without notice to produce the original being shown, and oral proof of the address upon the envelop containing the notice sent by mail, against objection: Held, that there was no error in admitting the evidence, as notice to produce a notice is not necessary in order to admit secondary evidence of its contents, and the address on the envelop might he regarded as a portion of the notice.</p> <p>5. Assessment on insurance note. Where the notice of an assessment upon an insurance note showed that the assessment was made by the company, when the directors alone were authorized to make the same, it was held no objection to the assessment, as in legal effect it was the same thing.</p>

W. W. Fabwell, Judge, presiding. This was a bill of interpleader, filed by John A. Ówen against Robert Saracon and August Apel, alleging that the plaintiff had in his hands $114, which was claimed by each of the defendants. Each of the defendants answered and claimed the money in plaintiff’s hands, Apel claiming that there was $500 in his hands, instead of $114.

Writ of Error to the Circuit Court of Livingston county; the Hon. Charles H. Wood, Judge, presiding. This was an action on the case, by the appellant against the appellee, to recover damages to plaintiff’s property caused by the construction and operation of defendant’s railroad on a public street fronting the same.

<p>1. Bank check—right of holder to sue on. The holder of a check on a bank, who has paid value for it, is entitled to so much of the funds of the drawer on deposit as the check calls for, and when presented for payment, the bank on whom it is drawn will become the holder of the drawer’s money, to the use of the holder, and will be bound to account to him for the amount, unless other equities have intervened.</p> <p>3. Same—right of bank to appropriate deposit on debt due itself. A bank check operates as an equitable, if not a legal, assignment, or transfer, to the holder of the check, of so much of the money of the drawer as he has on deposit in the bank at the time of its presentation for payment, subject to his draft, as may be necessary to pay it.</p> <p>3. The rights of the holder of the check and the bank, will be fixed from the time the check is presented for payment, and the bank will have no right subsequently to pay other checks, or other demands, either to itself or to others, which may afterwards be presented, or shall after-wards accrue. And if the bank can not retain the drawer’s money to pay a debt accruing in its favor after presentation of such check, it can not retain it, as against the check holder, under the claim of a lien for a debt not due.</p> <p>4. Banker’s lien—nature and extent of. In the very nature of such transactions, a banker’s lien can not extend to the money left on deposit with him, according to the custom and usages of banks. Such lien is confined to securities and valuables which may be in the banker’s custody as collaterals. The credit must be given on the faith of the securities, or valuables, either in possession or expectancy-.</p> <p>5. Bank—right of equitable set-off against deposit. Where a party procured his own note to be discounted at a bank, and the money received was placed in the bank as a deposit to his credit, and he afterwards became insolvent before the maturity of his note, it was held, that the bank might be entitled to an equitable set-off of its debt against the deposit as against the depositor, but not as against the rights of third parties, holders of the depositor’s checks presented for payment.</p> <p>6. Same—contract springing by usage from deposit. By universal custom and usage, a banker, when he receives a deposit, agrees with the depositor to pay it out, on the presentation of his checks, in such sums as those checks may specify, and to the persons presenting them, and with the whole world, the banker agrees that -whoever shall become the owner of such check, shall, upon presentation thereof, become thereby the owner, and entitled to receive the sum specified in the check, provided the drawer shall at that time have that amount on deposit.</p> <p>7. Bankruptcy—assignee takes subject to all rights and equities existing against the bankrupt. After the presentation, by a bona fide holder, of a check drawn by a depositor on funds of his in bank, the latter was adjudged a bankrupt, and it wasMd, that as the holder’s right to payment had become fixed before the filing of the petition in bankruptcy, the assignee could not compel the bank to pay the amount of such check, in case of payment to the holder, as his title to the bankrupt’s property was subject to all the rights and equities affecting the same in the hands of the bankrupt himself.</p>

<p>1. New trial—verdict against weight of evidence. Where the plaintiff sought to recover on the ground that a written contract was changed by a subsequent verbal agreement, whereb}'-, instead of his taking a given number of shares in a building erected by him for the defendant, and his share of the rents, he was to be paid in cash, and he so testified, but in this was flatly contradicted by the president of the company, and the proof showed that after the alleged change he claimed additional shares in consequence of the increased value of the building, and received his share of the rents, it was held, that a verdict in his favor was against the weight of evidence, his testimony being contradicted by his own conduct.</p> <p>2. Same—recovei'y too large. In such a case a verdict giving the plaintiff the whole amount of his claim for work and material, without deducting the rents received by him, will be for too large a sum, and can not be sustained. If the contract was changed, he could have no claim for any portion of the rents, and having received them they should be applied in payment of his demand.</p> <p>8. Contbact—construed. Where the plaintiff agreed to complete a building for a certain sum, one-half of which was to be paid him in money, and he was to take 41 shares out of 142, which represented the whole interest in the building and grounds, in payment for the balance due him, it was held, that when the value of the building was enhanced by certain changes in the plans, for which the plaintiff paid nothing, he had no right to any extra shares representing the enhanced value, but was entitled to receive only those he had contracted for.</p> <p>4. Debt—when it lies. Debt can only be maintained for a sum certain, or which may be rendered certain by computation. For a refusal to convey shares ifi a building according to the terms of a contract under seal, when the contract fixes no value to the shares, debt will not lie. Covenant is the appropriate action in such a case.</p> <p>5. Where the obligor binds himself to pay a fixed sum of money, or to perform some other act, and fails to perform it in the time limited, debt properly lies to recover the sum agreed to be paid.</p>

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. William W. Heaton, Judge, presiding.</p> <p>This was an action on the case, by John Button and Elizabeth Button, his wife, against the Chicago and Northwestern Bail way Company, to recover for a personal injury to the wife.</p> <p>The declaration alleged, in substance, that plaintiffs were passengers on defendant’s railroad from Chicago to Sterling, and had paid their fare; that it was the duty of the company to convey plaintiffs to Sterling and there stop a reasonable time for them to get off the train without injury; that the defendant, immediately after the arrival of the train at Sterling, and while the plaintiffs, with their consent and permission, with due care and diligence, were alighting, caused the train to be suddenly and violently started, whereby the wife was violently thrown with her feet on the ground and backward upon the steps of the car, thereby greatly injuring her spine, etc.</p> <p>The plaintiffs recovered judgment for $325 and costs, from which the defendant prosecuted a writ of error.</p>

<p>1. Variance—in name of defendant. In an action upon an instrument in writing- where the alleged name of a party thereto is apparently different from the one appearing to the instrument when offered in evidence, the instrument is not admissible in evidence unless there be an averment in the declaration explaining the apparent inconsistency between the names, and the averment be sustained by proof.</p> <p>3. In a suit against William, Becker, the declaration alleged that the defendant made, etc., the note sued on, without any explanation as to the name used, or in which it was executed, and the note offered in evidence was signed Wilhelm Becker, in the German language: Held,, that the two names were different in both orthography and sound, and that the noté was not admissible in evidence, for the variance.</p> <p>3. Same—how anoided. It is immaterial, as to the obligation of the promise, by what name a defendant executes the writing. He may be sued upon it by his true name, and- the variance may be prima faeie avoided by an averment in the declaration that he executed the writing by such a name, or otherwise reconciling the apparent inconsistency.</p>

Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. This was a bill in chancery, filed by William Dinning and Fred. B,. Sears against the Phcenix Insurance Company of Brooklyn, New York. The object of the bill and the facts of the case appear in the opinion of the court.

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

<p>Appeal from the Superior Court of Cook county; the Hon. W. W. Heaton, Judge, presiding.</p>

This was a petition for dower, filed by Cornelia Russell agáinst the Calumet and Chicago Canal and Dock Company. The facts of the ease are fully stated in the opinion.

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

Arthur A. Smith, Judge, presiding. This was a suit by Frederick Christianer, against the board of supervisors of Knox county, to recover compensation for services rendered as county superintendent of schools of Knox county. The cause was submitted upon an agreed statement of facts. The court below rendered judgment in favor of the plaintiff, and the defendant appealed.

<p>Dowse—how assigned when two are entitled in sarnie premises. Where A acquired title to land subject to the dower right of the complainant, and after A’s death dower was assigned to his widow in the same, and the court subsequently assigned the same land to the elder dowress that had been assigned to A’s widow: Held, that this was a fatal error; and that the subsequent assignment of dower should have been such that a proportionate part only would have been taken from the dower first assigned, and the residue from the owners of the other parts of the premises.</p>

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

Writ of Error to the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding. This was an action of assumpsit, by Alwine Fahrenkrug against The Eclectic Insurance Company, on a policy of insurance upon the life of Christian Heinrich Fahrenkrug, the plaintiff's husband. The plaintiff recovered $1000 in the circuit court, being the amount named in the policy. The material facts of this ease are stated in the opinion of the court.

<p>Appeal from the Superior Court of Cook county; the Hon. Josiah McEoberts, Judge, presiding.</p>

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

Circuit Court of Whiteside county; the Hon. William W. Heaton, Judge, presiding. This was a bill in chancery, by the Coal Valley Mining Company against the Peoria and Eock Island Bail way Company, to restrain the latter company from transporting coal over their road, except on the payment of 50 cents per ton from Coal Valley to the city of Eock Island, etc. The facts necessary to an understanding of the points decided are stated in the opinion.

Edwin S. Leland, Judge, presiding. This was an action of trespass, by Albert Griffin against the Chicago, Burlington and Quincy Railroad Company, to recover damages sustained in being expelled from the defendant’s oars. The material facts are stated in the opinion. A trial was had, resulting in a verdict and judgment of $1500, in favor of the plaintiff, from which the defendant appealed.

<p>' 1. Instruction—should not asstime facts. It is not erroneous to refuse an instruction which assumes a state of facts to be proven.</p> <p>8. Error—will not always reverse. Where the law of a case is fairly presented to the jury by the instructions given, the judgment will not be reversed for the refusal to give an instruction which, if given, could not have changed the result.</p>

This was an application by the collector of Will county, to the county court of that county, for judgment against certain lands for taxes due thereon, for the year 1871, and costs. The case was taken by appeal to the circuit court.

<p>1. School orders—negotiability of. School orders drawn by school directors on the township treasurer, being payable to an individual or bearer, may pass by indorsement so as to vest title in the assignee, and authorize him to institute suit in his own name. „</p> <p>2. Same—assignee takes subject to defenses. But there is a marked difference between the rights of an assignee of a school order and an assignee of a promissory note or bill of exchange. The directors having no power to issue orders payable at a future day, and the law requiring it to be stated in the order the purpose for which, and on what account it is drawn, it carries notice to every person becoming its holder of its validity, and he must at his peril ascertain what defenses can be interposed against its collection. The assignee stands in no better position than the payee.</p>

<p>1. Stbeet—whether its location is determined hy monuments, or measurement as shown in plat. The statute having required persons laying out additions, etc., to towns or cities, to mark the location of streets and public grounds by stones set in the ground, from which to make future surveys, when there is a discrepancy between such monuments and the measurements appearing in the plat, the former will govern and control the latter in determining the location of the street. Such stones will be regarded with the same force and binding effect as original monuments erected by government surveyors.</p> <p>2. Same—corporate authorities home no right to change location of. A party laying out land into lots and streets has the right to locate the streets where he chooses, and when he has erected stones to show where a street is located, and staked lots abutting on each side of the same, and sold lots with reference to it, which have been improved, and the location of the street has been acquiesced in for twenty years by the public, the purchasers of the lots, and the city, taking the street in trust for the public, will be bound by the monuments in determining the location of the street, and the city will be enjoined if it attempts to change its actual location.</p> <p>3. Description op land—monuments control as to boundary. Where monuments and admeasurements are both mentioned in the description of land conveyed, the purchaser must hold by the boundaries given by the monuments.</p>

<p>1. Negligence—neglect to fence road by railway company. Where a railway company kills- stock with its train not at a public crossing or other place where it is required to fence its track, and has been in operation for more than six months prior to the accident, and has not fenced its track at the place where the killing took place, and the owner of the land has not agreed to fence the road, the company will be liable to the owner of such stock, under the act of 1855, without proof of any actual negligence, even though the owner may not prove the stock got upon the track at the point not fenced.</p> <p>3. The design of the act of 1855, on this subject, was, to afford some protection from hazard of trains running at a high rate of speed, by fencing, and if this is omitted by a railroad company, it will be presumed to be guilty of negligence, without any other proof than of the omission to fence.</p> <p>3. Same—burden of proof as to exceptions not in enacting clcmse of the statute. In a suit to fix the liability of a railroad company for killing stock, on the ground of a neglect to fence its track, if the land-owner has received a specific sum for fencing along the line, or had agreed to build and maintain a lawful fence, or had received compensation for so doing by way of damages in the condemnation of the land, the burden rests upon the company to show such fact in defense, and not upon the plaintiff to negative it.</p> <p>4. Same—effect of act of 1869 on company's liability. The act of 1869, giving the land-owner the right to build a fence along the railroad track over his premises, and hold the company liable therefor, upon its failure to fence on notice, docs not release railroad companies from their liability, under the act of 1855, for stock killed. The later act creates no duty upon the land-owner to fence, but merely gives him the privilege to do so, and the fence, when so built by the owner of the land, will be the property of the company.</p> <p>5. Bailboad—in what sense public highway. Bailroads are public highways, not in the sense of public wagon roads, upon which every one may transact his own business with his own means of conveyance, but only in the sense of being compelled to accept of each and all, and take and carry to the extent of their ability.</p> <p>6. Same—effect of new constitution on right of way. The constitutional provision providing that the fee to lands taken for right of way shall not pass, but remain in the land-owner, has no application to proceedings completed before the adoption of the constitution, and the duty of railway companies to fence their track is not affected by the fact whether they own the fee or have only an easement in their right of way.</p> <p>7. Pleading—negativing exceptions in statute. Where the clause of a Statute creating a liability contains exceptions, the party seeking to enforce such liability must show affirmatively that the case does not fall within any of the exceptions; but when exceptions are made in a separate section, it is the business of the party sought to be charged to set up and prove the facts exempting him from liability.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>This was a bill in chancery, filed by Joseph Sherlock, John Ellis and twenty-four others, tax-payers in the village of Winnetka, Cook county, Illinois, against the village of Winnetka and others, to enjoin the collection of taxes levied to pay interest on certain bonds, the validity of which the bill questioned. The opinion of the court gives the necessary facts of the case.</p>

<p>1. Evidence—proof of business with others done in same way. In an action to recover money loaned, when the plaintiff claimed that he had loaned the defendant §500 for six months without taking any note, the court allowed the plaintiff to testify that he had frequently before, and in the case of various other persons, made loans of money without taking any note: Held, that the testimony was properly admitted to rebut any inference that might arise from the uncommonness of making such a loan without taking a note.</p> <p>3. Same—rebutting in contradiction. In a suit to recover §500 loaned, the defendant, as a witness, denied the loan, and to show that he had no occasion to borrow, testified that he had received from his brother-in-law money to be used by him, and, on cross-examination, denied having sent §300 by express to his brother-in-law. In rebuttal, the court allowed the plaintiff to prove that about the time of the loan the defendant sent §300 by express to his brother-in-law, which was objected to: Held, that the rebutting evidence was pertinent and proper, and not collateral, and that it was proper, whether it had been denied by the defendant or not.</p> <p>3. Same—-former decla/rations to corroborate impeached witness. Proof of the declarations of a witness made out of court in corroboration of testimony given by him on the trial of a cause, is, as a general rule, inadmissible, even after the witness has been impeached or discredited.</p> <p>4. Where the witness is charged with testifying under the influence of some motive prompting him to make a false statement, it may be shown that he made similar statements at a time when the imputed motive did not exist, or when motives of interest would have induced him to make a different statement of facts.</p> <p>5. So, in contradiction of evidence tending to show that the witness’ account of the transaction was a fabrication of a recent date, it may be shown that he gave a similar account before its effect and operation could be foreseen.</p> <p>6. In this case the plaintiff testified that, on the 18th day of September, 1871, he loaned the defendant §500 for six months, without taking any note. This the defendant denied, but offered no contradictory statements of the plaintiff, and there was nothing in the way of impeachment, except it was sought to impeach him on cross-examination, and there was contradictory testimony to his in the case. The court then permitted the plaintiff to prove by a witness that about the date of the alleged loan the plaintiff told the witness he had loaned the defendant $500 and took no note: Held, that the court erred in admitting the statement, as it did not • come within any of the exceptions to the general rule.</p>

John G. Rogers, Judge, presiding. This was an action on the case, by Nicholas Troesch against the Columbus, Chicago and Indiana Central Railway Company, to recover damages for personal injuries. The opinion of the court states the facts and grounds upon which the recovery was sought. There was a verdict and judgment in favor of the plaintiff for §10,000 in the circuit court, to reverse which the defendant appealed.

<p>Appeal from the Superior Court of Cook county; the Hon. William A. Porter, Judge, presiding.,</p> <p>Tin's was an action of replevin, brought by Alexander M. Young, William Young and Ransom W. Dunham, partners, against Timothy Bradley, Alexander Thorne, John R. Thorne and Josiah L. Keck, to recover possession of a lot of mess, pork which the plaintiffs claimed as their property.</p> <p>The facts in regard to the sale, shipment and delivery of the pork by Keck to J. Brooks Johnson are fully stated in the opinion. Johnson received the pork from the railroad company and stored the same with Thorne & Co., taking negotiable warehouse receipts. While so stored, Keck replevied the pork from Thorne & Co. and Johnson, and while the same, was in the custody of the sheriff, Bradley, Young & Co., the appellants, who had purchased the pork and paid for the same, in the regular course of business, without any notice of any adverse claim thereto, and to whom were indorsed and delivered the warehouse receipts issued to Johnson, replevied this pork from the sheriff, making Thorne & Co. and Keck co-defendants in the suit.</p> <p>The cause was tried before the court without a jury, and the issues found for the defendants below, and judgment entered accordingly. To reverse this judgment the plaintiffs bring the case to this court by appeal.</p>

Sabin D. Puterbaugk, Judge, presiding. The facts of this case are stated in the opinion of the court, except that the refused instructions, referred to in the opinion, are as follows: “20.

Charles H. Wood, Judge, presiding. This was an action of assumpsit, by Jonathan H. Cheeney against the Lafayette, Bloomington and Mississippi Railway Company, to recover for services, as stated in the opinion.

<p>Appeal from the Circuit Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding.</p> <p>This was an action on the case, brought by Mary J. Lee, administratrix of the estate of Darius B. Lee, deceased, against the Chicago, Burlington and Quincy Bailroad Company, to recover damages for causing the death of her intestate, through negligence. A trial was had at the special November term, 1872, resulting in a verdict and judgment of $5000 for the plaintiff. The opinion' states the material facts of the case.</p>

Henry Booth, Judge, presiding. This was an action on the case, by Andrew J. Wright, and Samuel F. Wright, partners, etc., against the city of Chicago. The facts of the case appear in the opinion.

Writ of Error to the Circuit Court of Peoria county; the Hon. J. W. Cochran, Judge, presiding. This was a bill in equity, filed by Sophia Sloan and Christiana Sloan, against Samuel Voris. The object of the bill and the facts of the case appear in the opinion of the court.

Williams, Judge, presiding. This was a bill in equity, filed by William M. Butler, against Altieri A. Huestis, Seneca C. Bliss, Laban S. Major, Willa Mena and Celia T. Butler. It appears that the complainant, in 1861, conveyed the property in dispute to Seneca C. Bliss, in trust for the use and benefit of Celia T. Butler, his wife, during her natural life.

<p>Appeal from the Superior Court of Cook county; the Hon. William A. Porter, Judge, presiding.</p> <p>This was an action of debt, brought by the appellee against the'appellant and Douglas B. Hale and Bichard L. Carhart, to the February term, 1873, of the Superior Court of Cook county, upon the following penal bond:</p> <p>“ Know all men by these presents, that we, Hi chard L. Car-hart, James L. H. Smith, Douglas B. Hale and J. N. Gage, of Chicago, Illinois, are held and firmly bound unto Charles A. Lewis in the penal sum of $40,000, lawful money of the United States, for the payment of which well and truly to be made, we bind ourselves and legal representatives firmly by these presents. Witness our hands and seals this 19th day of February, A. D. 1872.</p> <p>“ The condition of the above obligation is such, that whereas said Carhart & Lewis have this day dissolved the co-partnership heretofore existing between them, under the firm name of Carhart, Lewis & Co.; and whereas said Carhart has taken all of the assets of said firm, except the personal accounts of each member appearing on the books of Carhart, Lewis & Co., which have been settled and adjusted, and in part consideration thereof said Carhart has agreed to pay all the debts due by said firm, or by the said firm of Carhart, Lewis & Tappan, to any of their creditors, and to the estate of Geo. W. Tappan, deceased, and excluding, however, the personal account of either of said members of said firm appearing upon the books of Carhart, Lewis & Co., and to save and keep harmless said Lewis from any and all of the same :</p> <p>“How, therefore, if said Carhart shall pay all of said debts, claims and demands, due or to become due by said firm of Carhart, Lewis & Co., and Carhart, Lewis & Tappan, to any and all persons whatsoever, and to said estate of Geo. W. Tappan, deceased, (excluding, however, the personal accounts of the members of said firm so appearing upon the books of said Carhart, Lewis & Co.,) and save, indemnify and keep harmless the said Charles A. Lewis therefrom, then this obligation to be void, otherwise to remain in full force and effect.</p> <p>[Signed] Richard L. Carhart, [Seal]</p> <p>James L. H. Smith, [Seal]</p> <p>Douglas R. Hale, [Seal]</p> <p>J. H. Gage. [Seal]”</p> <p>Hu mero us special breaches of the bond were assigned, but as no question was raised upon them in argument, and none is noticed in the opinion of the court, it is unnecessary to set them out.</p> <p>The defendant Gage filed two special pleas, as follows:</p> <p>“And the said defendant. John H. Gage, comes and defends the wrong and injury, when, etc., and files his several plea, and says, that he ought not to be charged with the said debt by virtue of the said supposed writing obligatory, because he savs that the said writing obligatory in the said declaration mentioned ivas obtained from this defendant by the plaintiff bv fraud, covin and misrepresentation, to-wit: at the date of said bond, and in the county aforesaid, and which fraud, covin and misrepresentation this defendant avers was in the matters following, that is to say: Immediately prior to the date of the bond referred to in the said declaration, this defendant, with others as co-partners, was carrying on, in the city of Chicago and county aforesaid, a wholesale millinery business, under the name and style of Gage Bros. & Co., while the said plaintiff, at the same time, with Richard L. Carhart, the principal in said bond, was carrying on in the said city a large and profitable wholesale business in hats, caps, furs and buck goods, under the name and style of Carhart, Lewis & Co., and as successors to the firm of Carhart,’ Lewis & Tappan, and then and there negotiations were entered into by and between the said two existing firms, which resulted in an agreement on the part of such two firms, and of said plaintiff, by which he, the said plaintiff, was to quit and forthwith retire from the wholesale hat, cap, fur and buck goods business in said Chicago, and said Carhart was to have all the assets of said firm of Carhart, Lewis & Co., and pay all its debts, as mentioned in the said bond, and a new firm was to be formed to carry on the old business of said Carhart, Lewis & Co., which new firm ivas then and there formed by said Carhart, one Wm. P. Mallory, and the said firm of Gage Bros. & Co., as co-partners, and the name and style adopted for such firm was, Gage, Carhart & Mallory.</p> <p>“And this defendant further avers, that, while the said negotiations were pending, the said Lewis came to this defendant and requested him to sign the said bond as surety for the said Carhart, which this defendant then and there at first absolutely refused to do; whereupon the said Lewis then, and in order tb induce this defendant to withdraw his refusal aforesaid, and to sign said bond, craftily and deceitfully represented to this defendant, in substance, that he, the said Lewis, had made arrangements to go into the lumber business, in Chicago, aforesaid, and that the assets of Carhart, Lewis & Co. Avere ample to pay all its debts, and that the liability as surety upon the said bond would therefore be only nominal, and that he, the said Lewis, Avould, immediately upon the defendant signing said bond, finally and absolutely quit and retire from the wholesale hat, cap, fur and buck goods business, in said Chicago, and that the said neAV firm of Gage, Carhart & Mallory Avould and should succeed to all the valuable business and good will of the said late firm of Carhart, Lewis & Tappan, and Carhart, Lewis & Co.; and the said LeAvis then and there positively promised and agreed to- and Avith this defendant, that, if this defendant AA'ould sign said bond, he, the said Lewis, would, forthwith, absolutely retire from and quit forever carrying on the wholesale hat, cap, fur and buck goods business in said Chicago, and would in no manner compete with the said new firm in such business; whereupon, relying solely upon such representations and promises, and for no other consideration whatever, this defendant did withdraw his said refusal and sign said bond ; but this defendant avers that each and all of the said representations and promises proved to be false and untrue, and were made solely for the purpose, fraudulently and deceitfully, and without any consideration, to obtain this defendant’s signature to the said bond; for this defendant avers, that, immediately after obtaining such signature, the said Lewis, in direct violation of his aforesaid representations and agreements, proceeded to organize and carry on, in said Chicago, a wholesale hat, cap, fur and buck goods business, under the firm and style of Charles A. Lewis & Co., and in opposition to and as a rival of the said firm of Gage, Carhart & Mallory; and to make such rivalry more successful, the said Lewis hired away from said Gage, Carhart & Mallory such employees of the late firm of Carhart, Lewis & Co. as were best acquainted with the business and customers of such late firm, and endeavored, in every way in his power, to retain for himself the business and customers of such late firm; which false, crafty and deceitful conduct on the part of him, the said Lewis, caused a great injury and loss to the said firm of Gage, Carhart, Mallory & Co., and this defendant, to-wit: the sum of $50,000, to-wit: at the place aforesaid.</p> <p>“Wherefore, he, the said defendant, says that the said writing obligatory in the said declaration mentioned, was and is void in law, as to this defendant, by reason of the aforesaid fraud, covin and misrepresentation, and this he is ready to verify. Wherefore he prays judgment, if he ought to be charged with said debt, by virtue of the said writing obligatory, etc.</p> <p>“And for a further plea in this behalf, the said defendant, John N". Gage, comes and defends the wrong and injury, when, etc., and severally says, that he ought not to be charged with the said debt, by virtue of the said supposed writing obligatory, because he says that the said writing obligatory, in the said declaration mentioned, was obtained from this defendant by the plaintiff by fraud, covin and misrepresentation, to-wit: at the date of said bond, and in the county aforesaid, and which fraud, covin and misrepresentation, this defendant avers, was in the matter following, that is to say, immediately prior to the bond referred to in the said declaration, this defendant, with others as co-partners, was carrying on in the said city of Chicago, and county aforesaid, a wholesale milli.nery business, under the name and style of Gage Bros. & Co., while the said plaintiff, at the same time, with Richard L. Carhart, the principal in said bond, was carrying on in the said city a large and profitable wholesale business in hats, caps, furs and buck goods, under the name and style of Car-hart, Lewis & Tappan, and then and there negotiations were entered into by and between the said two existing firms, which resulted in an agreement on the part of such two firms and said plaintiff, by which he, the said plaintiff, was to quit and forthwith retire from the wholesale hat, cap, fur and buck goods business in said Chicago, and the said Carhart was to have all the assets of said firm of Carhart, Lewis & Co., and pay all its debts, as mentioned in the said bond, and the new firm was to be formed to carry on the old business of said Car-hart, Lewis & Co., which new firm was then and there formed by said Carhart, one Wm. P. Mallory, and the said firm of Gage Bros. <& Co., as co-partners, and the name and style adopted for such new firm was Gage, Carhart & Mallory, and this defendant further avers that, while the said negotiations were pending, the said Lewis came to this defendant and requested him to sign the said bond as surety for the said Carhart, which this defendant then and there at first absolutely refused to do; whereupon the said Lewis then and there, in order to induce this defendant to withdraw his refusal aforesaid, and to sign said bond, craftily and deceitfully represented to this defendant, in substance, that he had made arrangements to go into the lumber business in Chicago aforesaid, and that the assets of Carhart, Lewis & Co. were ample to pay all its debts, and that this defendant’s liabilities as surety upon the said bond would therefore be only nominal, and that he, the said Lewis, would, immediately upon this defendant signing said bond, finally and absolutely quit and retire from the wholesale hat, cap, fur and buck goods business in said Chicago, and that the said new firm of Gage, Carhart & Mallory would and should succeed to all the valuable business and good will of the said late firms of Carhart, Lewis & Tappan, and Carhart, Lewis & Co.; and the said Lewis then and there positively promised and agreed to and with the defendant, that, if this defendant would sign such bond, he, the said Lewis, would forthwith absolutely retire from and quit forever carrying on the wholesale hat, cap, fur and buck goods business in said Chicago, and would in no manner compete with the said new firm in such business; whereupon, relying wholly upon such representations and promises, for no other consideration whatever, this defendant did withdraw his said refusal and sign said bond; but this defendant avers that each and all the said representations and promises proved to be false and untrue, and were made solely for the purpose, fraudulently and deceitfully, and without any consideration, to obtain the defendant’s signature to the said bond; for this defendant avers that, immediately after obtaining such signature, the said Lewis, in direct violation of his aforesaid representations and agreements, proceeded to organize and carry on in said Chicago, a wholesale hat, cap, fur and buck goods business, under the firm name and style of Charles A. Lewis & Co., and in opposition to and as a rival of the said firm of Gage, Carhart & Mallory; and to make such rivalry more successful, the said Lewis hired away from said Gage, Carhart & Mallory such employees of the late firm of Car hart, Lewis & Co. as were best acquainted with the business and customers of such late firm, and endeavored in every way in his power to retain for himself the business and customers of such late firm; which false, crafty and deceitful conduct on the part of him, the said Lewis, caused a great injury and loss to the said firm of Gage, Carhart & Mallory, and to this defendant, to-wit: the sum of $50,000, to-wit: at the place aforesaid.</p> <p>“And the said defendant avers that, but for the aforesaid representations and promises on the part of said plaintiff, so fraudulently and deceitfully made, he, this defendant, would not have signed said bond; but by the aforesaid acts of the plaintiff, he, this defendant, has been deprived of the sole and only consideration upon which he signed the same.</p> <p>“ Whereby, and by reason of'the aforesaid acts of the plaintiff, the consideration for which this defendant signed the said writing obligatory and became bound thereby, entirely failed, and this, he, this defendant, is ready to verify.</p> <p>“Wherefore he prays judgment, etc.”</p> <p>The plaintiff demurred to each plea generally. The court sustained the demurrer, and the defendant refusing to answer further, the plaintiff’s damages were assessed by the jury at $4790, for which the court gave judgment. Defendant Gage excepted, and brings the ease here by appeal.</p> <p>The other facts material to an understanding of the case sufficiently appear in the opinion of the court.</p> <p>The errors assigned are:</p> <p>1st. That the court below erred in sustaining the demurrer to the pleas.</p> <p>2d. The assessment of damages upon the .first assignment of breaches of the bond referred to in the amended declaration was irregular, and the amount of such damages was excessive.</p> <p>3d. The assessment of damages upon the several assignments of breaches of said bond was irregular, and there was no sufficient evidence to warrant the finding of the jury as to the amount of such damages, and the court erred in rendering judgment against the appellant for such amount.</p> <p>4th. James L. H. Smith, one of the obligors in such bond, should have been made a party to said action; and the court erred in sustaining the action against only a part of the obligors on said bond.</p> <p>5th. The court erred in rendering judgment against said Gage in said action for any amount whatever.</p> <p>Upon the argument of the case, so much of the assignment of errors as questions the sufficiency of the breaches of the bond assigned in the declaration, were abandoned, and no question was raised on the sufficiency of the evidence to sustain the verdict, any further than is noticed in the opinion of the court.</p>