Volume 70 — Illinois Reports

<p>1. Account behdebed—acceptance by acquiescence. Where an account of a banker is rendered, showing a sale of a party’s stocks, which the latter receives without objection, in ignorance of the facts, his acquiescing in the same, under such circumstances, will not preclude him from after-wards disputing the account.</p> <p>3. Sale of stocks—where broker makes two sales at different prices, whether customer is entitled to price received on first sale. Where a customer of a bank in Chicago had railroad stocks which were held by the bank, in its name, in other banks, in the city of New York, and, during the great Chicago fire, directed his banker to telegraph immediately and have them sold, and directed the dispatch to be sent from a station outside of the city, under the belief that none could be sent from the city, and, after this, the bank sent a dispatch from the city, under which more stocks were sold than those it held for such customer, and, on the next day, sent another dispatch from the station outside the city, which did not get through for some time, and under which other railroad stocks were sold at a much lower price than the first, it was held, that the customer was entitled to recover of his banker, for his stocks sold, the price received at the first sale, as he was the first to give a direction to sell.</p>

<p>1. Attorney and client—^privileged communication. A bill in chancery, sworn to by a party, but never filed, and which is prepared by his ' attorney on the client’s statement of the facts, is to be regarded as a privileged communication in the hands of the attorney, and is not admissible in evidence against his client,</p> <p>3. Same—evidence of the relation. Where an attorney at law prepares a bill in chancery in a party’s name as complainant, and the attorney signs the party’s name to it, and then the name of his firm to the bill, this affords unmistakable evidence of the relation of client and attorney, and a mere denial of the relation by the latter is but ignoring the legal effect of the acts done.</p> <p>3. Evidence—weight of bill in chancery as proof of facts stated. Where it appeared that, when a bill in chancery was partly drawn, a jurat was prepared and sworn to by the complainant, and the attorney afterwards completed the same, but it was never filed, and the complainant testified that he did not know the contents, it was held, that, if the bill was admissible in evidence against the complainant, it was of but little weight.</p> <p>4. Pleading and evidence—common counts. The averment in a common count of the sale and delivery of property, is substantial, and must be proved, to warrant a recovery.</p> <p>5. Assignment—suit on claim against estate. If a recovery of the price of a claim upon an estate, which has been sold, is sought, under the common counts, the claim must have passed to the purchaser by an assignment or some other act tantamount to a delivery.</p> <p>6. Pleading—when the plaintiff must declare specially. If a vendor elects to sue for and recover damages for a breach of a contract to purchase, he must declare specially.</p> <p>7. Vendor and purchaser—vendor must peiform before he can sue vendee. Where a vendor sues for damages for the breach of a contract of sale, it must appear that he has been ready and willing, and has offered to perform on his part, or that the vendee has done some act which dispenses with a performance.</p> <p>8. Same—when offer to perform not necessary. A defendant may dispense with an offer to perform by the plaintiff, by refusing to go on with the contract, or he may, in other modes, dispense with such an offer.</p> <p>9. Measure of damages. Where a seller sues for the breach of a contract to purchase, and retains the title to the property, the measure» of damages is the difference between the value of the property at the time fixed for delivery, and the contract price.</p>

<p>1. Quo wabbanto—leave to file, a matter of discretion. The granting of leave to file an information in the nature of a quo warranto is within the sound discretion of the court. Leave is not given as a matter of course, but a court ought not arbitrarily to refuse leave, but should exercise a sound discretion, according to law.</p> <p>2. Same—¿oro instituted. The usual and proper mode of instituting a proceeding in the nature of a quo warranto is, for the State’s attorney to submit a motion for leave to file the information, based on affidavit. A rule nisi is then laid on the defendant to show cause why the information should not be filed, which he may answer by counter affidavits.</p> <p>3. Election — irregularities, waived by taking part. Where an election for school trustee was held, but not at the place designated in the notices thereof, and the relator, who sought to avoid the election on that ground, participated in the same, by voting, and running as an opposing candidate, it was held, that a sound public policy would forbid him from having the election of his opponent declared void on this ground, and that a rule nisi to show cause why an information by him should not be tiled was properly discharged.</p>

William A. Porter, Judge, presiding. This was an action of trespass, brought by William H. Warren against Charles B. Farwell and Dennis Curran. The opinion of the court sufficiently presents the facts of the case.

John G. Rogers, Judge, presiding. This was an action of forcible detainer, brought by George W. Noble against James M. Nixon, before a justice of the peace, and taken by appeal to. the circuit court.

<p>1. Pleading—when fraud is set up> the facts constituting it must de stated. A plea setting up fraud in procuring the execution of a guaranty, must set out the facts constituting the fraud. A general allegation that the defendant was induced to execute the contract by means of fraud, covin an<^ misrePresentati°n of the plaintiff, and others in collusion with him, is had on demurrer.</p> <p>2. Parol evidence—varying written contract by parol. In a suit upon a written guaranty of the payment of a note, a plea which sets up a parol contract made at the same time, limiting the liability of the indorser or guarantor, can not be sustained upon any principle of law.</p> <p>3. Same—to change liability of indorser of note. In an action by an indorsee of a promissory note against the indorser, it may he shown by parol that the indorsee held as agent for the indorser, or in trust, or for collection merely, or that the same was sold without recourse, and that the indorsement was afterwards made merely to transfer the legal title. These cases are exceptions to the general rule.</p> <p>*• Judiciary—of QooJc county—each judge may hold court alone. The intention of the constitution of 1870 is, to give the several judges of the circuit and Superior courts of Cook county identically the same powers, and place them on the same footing of circuit courts, but composed of branches corresponding with the number of judges, each judge, while holding such branch, to have all the powers of a circuit court. It does not require a majority of the judges of either of said courts to sit together, but each may hold court by himself.</p> <p>5. Placita—should show the judge holding the court. The placita of the record, in a case coming from the courts of Cook county, should show that the court was held by one judge only, and he should be the one before whom the cause was tried, and he should sign the bill of exceptions in actions at law, and sign decrees, and certify the evidence in suits in equity.</p> <p>6. Constitutional law—whether judge may hold court out of his circuit. While the constitution requires each circuit judge to reside in the circuit in which he is elected, yet he is not, in terms or by implication, prohibited from holding court in another circuit, in such manner as may be prescribed by law.</p> <p>7. A circuit judge from a different circuit may properly preside as a judge in the Superior Court of Cook county, when requested, under the provisions of the act of May 3, 1873, and the proceedings before him will not be invalid on that account.</p>

<p>1. Practice—trial without issue on a plea is a waiver of a formal issue. Proceeding to trial without an issue-being made up on one of the pleas, is considered as a waiver of a formal issue, and the irregularity will be cured by the verdict.</p> <p>2. If the defendant neglects to rejoin to a special replication, the plaintiff may obtain a rule to rejoin, or pray judgment for want of a rejoinder. If lie does neither, and goes to trial without objection, the want of a formal issue will be waived.</p> <p>3. Pleading and evidence—chattel mortgage may he shown fraudulent without plea so charging. Where property is claimed under a chattel mortgage, the other party, acting for creditors, may attack it for fraud, without any pleading disclosing the grounds and nature of the attack.</p> <p>4. Practice—cross-examination of party to suit. Where the plaintiff" is a witness in his own behalf, and claims properly under a chattel mortgage, and gives a history of the transaction, great latitude will be allowed in his cross-examination, especially where fraud is charged.</p> <p>o. Chattel mortgage—when fraudulent as to creditors. If a chattel mortgage is executed, not alone to secure an indebtedness to the mortgagee, but to protect the property of the mortgagor, and to hinder and delay his creditors,1 and this fact is known at the time by the mortgagee, the mortgage will be void, as to the creditors attempted to be defrauded.</p> <p>6. Errob—record must slum instructions given, as well as those refused. If a party assigns for error the refusal to give part of his instructions, the record should show those that were given, as well as those refused."</p> <p>7. Error will not always reverse. Where it is apparent that a party could not have recovered with the most favorable instructions, an error in refusing instructions furnishes no ground of reversal, as the error works no prejudice.</p>

<p>1. Fraud—delivering deed in blank. The delivery of a deed in blank, by which to obtain money of one not informed of the fact that it is in blank, affords strong evidence that a gross and palpable fraud was intended, which will make all the parties to the fraud liable in an action for the damages resulting.</p> <p>8. Criminal law—-filling blanks in deed without a power of attorney. The filling up of the blanks in a deed signed by the grantor, with the name of a grantee, and a description of land, without authority, is a criminal act, and makes the party so offending liable to a prosecution for forgery.</p> <p>3. Deed—if blanks are filled without aufíiority, it will be void. If a deed has no description of any land or the name of any grantee, but is in blank, except the names of the grantors, and the blanks are afterwards filled so as to show a grantee and a description of land, without authority, it will be void.</p> <p>4. Witness — credibility. Where an officer, who has certified to the acknowledgment of a deed by husband and wife in proper form, testifies that the wife was not present, and did not acknowledge the same, his testimony will be entitled to but little weight against his certificate.</p> <p>5. Deed of trust—conveyance by trustee passes legal title without regard to notice of sale. A conveyance of land by a trustee, with, or even without notice, as required in the deed of trust, will pass the legal title to his grantee, and, until a redemption is had, he will hold it, and may set it up in defense of an action of ejectment.</p> <p>6. Same—innocent purchaser may rely on recitals in trustee's deed as to notice of sale. Where land sold by a trustee under a deed of trust has passed into the hands of an innocent purchaser, and the trustee’s deed recites a compliance with all the requirements of the trust deed, as to the giving of notice, etc., such purchaser is not bound to go behind the deed to learn whether its recitals are true or not. The remote purchaser, to be affected, must be chargeable with notice of a defect in the execution of the power.</p> <p>7. Limitation—under act of 1839. Where land is sold under a deed of trust, and the grantee and those succeeding to his claim and color of title pay all taxes thereon for seven successive years, while the land is vacant and unoccupied, and then take possession, this will present a complete bar to an action of ejectment by the grantor in the trust deed, under the Limitation Act of 1839.</p> <p>8. Evidence—secondary—when duplicate must be produced,. If, from the nature of the case, it is manifest that a more satisfactory kind of secondary evidence exists, the party will be required to produce it; otherwise, the objector must not only prove its existence, but, also, that it was known to the other party in time to have been produced at the trial.</p> <p>9. Thus, where an original tax receipt was destroyed, and the fact of there having been a duplicate receipt sent to a distant place, appeared on the trial, but there was no proof that the party seeking to prove payment of taxes had any prior notice of its existence, it was held, that parol evidence was properly received.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p> <p>This was an action on the case, by Alexander Doig and Irvin VanDuzer against The Prairie State Loan and Trust Company, for alleged injuries to property by the falling of a derrick.</p> <p>The opinion of the court states the material points and questions arising in the case. The jury found the defendant guilty, and assessed the plaintiff’s damages at $600, upon which the court rendered judgment, refusing a motion for a new trial.</p>

Writ of Error to the Court of Common Pleas of the city of Aurora; the Hon. Richard G. Montony, Judge, presiding. This was an action of trespass, by Cornelia R. Misner against David Huftalin. The material facts of the case are stated in the opinion of the court.

<p>Appeal from the Circuit Court of Livingston county; the Hon. Charles H. Wood, Judge, presiding.</p> <p>This was an action of debt, by Eichard P. Morgan, Jr., against David McWilliams and James H. Hagerty, upon an appeal bond. The opinion of the court contains a sufficient statement of the case.</p>

<p>1. Judicial notice—of matters relating to organization of counties. This court will take judicial notice of the result of an election on the question of the removal of a county seat, as a fact connected with the organization of counties, where the question is drawn in issue collaterally.</p> <p>2. Contempt—must be judicially established. To deprive a party of a standing in court for any purpose, for contempt in disobeying an order or injunction of the court, if such is the law, there must first be an adjudication finding him guilty of such contempt.</p> <p>3. Same—what constitutes a contempt. Where the board of supervisors of a county are enjoined from building a county jail at the county seat, the receiving of bids for the work, conditioned upon the dissolution of the injunction, and the awarding of the contract to build the same, to take effect only upon the dissolution of the injunction, is not such a disobedience of the injunction as to place the board of supervisors in contempt.</p> <p>4. Board op supervisors—duty and powers in respect to court house- and jail. It is made the imperative duty of the board of supervisors to build, as often as may be necessary, court houses and jails, and cause the same to be repaired. The time when, the style, capacity and cost of such erections, are wholly committed to them, and in the absence of fraud, corruption or unfair dealing, their discretion can not be controlled by any judicial tribunal. The board are the exclusive judges of the necessity of erecting a new jail, and are amenable only to the people electing them.</p> <p>5. Injunction—to restrain supervisors from, providing a suitable jail. In the absence of any charge of fraud, corruption or dishonesty in a board of supervisors, in the exercise of the discretion vested in them in respect to providing a suitable jail for their county, a court has no jurisdiction to order the issue of an injunction to prevent their action, and therefore it will be no contempt to disobey such injunction.</p> <p>6. Chancery—sworn answer, when oath is waived. Where an answer under oath to a bill in chancery is waived, if it is sworn to it will not thereby derive any efficacy from the oath, but it may be used as an affidavit in support of a motion to dissolve an injunction.</p>

<p>1. Chanceby jurisdiction—on ground of accident. It is not every case of accident which will justify the interposition of a court of equity. The jurisdiction will be maintained only where a court of law can not grant equitable relief, and where the party has a conscientious title to relief.</p> <p>2. Same—on loss of sealed instrument. In the case of lost instruments under seal, equity will take jurisdiction, for the reason that, until recently, no remedy could be had on such instruments in a court of law, because no profert could be made.</p> <p>3. Rescission—of sale for fraud. If a party, knowing himself to be insolvent or in failing circumstances, by means of fraudulent pretenses or representations, purchases goods, with the design to cheat the vendor out of the same, the latter may rescind the sale for fraud, and recover the goods by replevin, if they have not passed into the hands of innocent purchasers.</p> <p>4. Where the only untrue representations made by a purchaser of goods were, that he had purchased and could purchase of a certain firm on four months’ credit, and thereby obtained one more month’s credit, and it did not appear that he was insolvent at the time, or in failing circumstances, though within two months afterwards he became an invol untary bankrupt: Held, that the vendor had no right to rescind the sale and recover back the goods in replevin.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>This was an action of ejectment, brought by Anzaletta Barnett, against Patrick Wolf, for the recovery of the northwest quarter of section 35, township 32 north, range 4 east of the third principal meridian, in LaSalle county. The leading facts of the case will appear in the opinion of the court, j</p>

<p>Assault with intent to bob—the proof must indicate the intent. On an indictment for an assault with intent to commit a robbery, proof of a wanton assault, without any facts from which an intent to rob can be inferred, will not sustain a conviction.</p>

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

<p>Writ of Error to thé Circuit Court of Kankakee county; the Hon. Charles H. Wood, Judge, presiding.</p> <p>This was an action commenced by attachment, by the defendants in error against the plaintiff in error. The opinion of the court presents the necessary facts to an understanding of the case.</p>

<p>Appeal from the Circuit Court of Grundy county,- the Hon. Josiah McBoberts, Judge, presiding.</p>

<p>Judgment—against two, will he reversed, where there is no evidence against one of defendants. A joint judgment against two defendants in trespass, as the owners of an omnibus, for running into a carriage, where there is no evidence of ownership or interest as to one of the defendants, can not be sustained on appeal or error.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p> <p>This was a petition by Patrick W. Murphy and Richard C. Murphy, against John Cooke, to enforce a mechanic’s lien.</p> <p>The opinion of the court contains a substantial statement of the material facts, except that the original contract was under seal. The jury found for the petitioners the sum of §797.90. The defendant moved for a new trial, which the court refused, and entered a decree in accordance with the verdict, in the usual form. The defendant appealed.</p>

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

<p>1. Evidence—declai'ations of third party. In an action against a railroad company, to recover damages for killing the plaintiff’s intestate through a collision at a road crossing, the company sought to prove the declarations of a person who was riding with the deceased in his wagon at the time, made just after the accident, which the court refused: Sold, that the evidence was inadmissible, the person injured being in a dying condition, and not capable of assenting to what was said.</p> <p>2. Same—relevancy of evidence as to habits of party hilled. In an action to recover of a railroad company for the killing of a person, where the negligence of the deceased, as well as that of the company, was involved, the company inquired of a witness as to the habits of the deceased in general, without specification as to the sort of habits sought to be proved, which the court excluded: Meld, that the court was justified in rejecting the offered testimony, for the reason that the habits were not particularized so as to show their bearing on the case.</p> <p>3. Witness—impeachment as to former statements. Where a witness is asked, on cross-examination, whether he had made a particular statement before the trial, which is incompetent, as not relating to anything testified to by him on his direct examination, and collateral, his answer must be taken as conclusive, and can not be contradicted by other witnesses.</p> <p>4. Negligence—contributory. It is the duty of persons about to cross a railroad, to look about them and see if there is danger,—not to go recklessly upon the road, but to take the proper precautions themselves, to avoid accidents at such places. If a party rushes into danger, which, by ordinary care, he could have seen and avoided, no rule of law or justice can be invoked to compensate him for any injury he may receive.</p> <p>5. In general, it is deemed culpable negligence to cross the track of a railroad without looking in every direction that the rails run, to make sure that the road is clear, as also to attempt to drive a team across the track of a railroad in full view of an approaching locomotive.</p> <p>6. Where a party was killed by a locomotive colliding with his wagon and team, while in the act of crossing the railroad track at a public crossing, in the night time, and it appeared that it was very calm, still and dark, that the train was lighted up, and there was a bright head-light, that there was nothing to obstruct its view from the deceased, as it was approaching, for some distance, and that he must have heard the noise; that the deceased was addicted to hard drinking, and was probably under the influence of liquor, and that his team came upon the crossing in a run, so as not to be seen by those in charge of the train until it was upon the track, it was held, that, owing to the negligence of the deceased, no recovery could be had by his personal representative against the company, for causing his death, and injury to his team and wagon.</p> <p>7. Same—neglect to ring bell, etc. If a traveler on the highway has notice of an approaching train in time to avoid a collision upon the crossing, the object of ringing a bell or sounding a whistle is subserved, and the failure to perform such acts, or either of them, can not be held to be the cause of an injury resulting from a collision, under such circumstances.</p>

Geo. W. Pleasants, Judge, presiding. This was an action of assumpsit, by William H. Hunt, against Hollida & Ball, upon a promissory note given by the latter to Charles T. Davison, and assigned by him to plaintiff. The plaintiff recovered in the court below, and the defendants appealed.

Joseph E. Gary, Judge, presiding. This was a bill in chancery, filed by Granville W. Alexander against Francis A. Hoffman and the heirs of Andrew J. Miller, deceased, for specific performance. The opinion of the court states the substance of the leading facts.

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

<p>1. Warehouseman and wharfinger. A person doing a private business as a warehouseman, and keeping a private wharf, and not acting under any license or statutory authority, is under no legal duty to place guards on the wharf to prevent teams from falling into the water, or to provide places for hitching horses at his warehouse, and is not liable for an injury growing out of the want of such provision being made.</p> <p>3. Same—not held to the care required, of common carriers. Common carriers are held to the highest degree of care for the safety of passengers that is consistent with' the prosecution of their business, and are made insurers of property intrusted to them, except as against the acts of God or the public enemy. But an ordinary warehouseman is only liable for ordinary care, or such care as prudent men usually exercise over their own property.</p> <p>3. Same—not held to same care, in respect to approaches, as common carriers. Railway companies are bound to provide, not only safe engines, cars, track and other machinery and servants, but also to provide and maintain safe platforms and approaches to their cars; and carriers by water, safe approaches to their vessels; but a private warehouseman or wharfinger is under no such obligation. He, like a merchant, blacksmith or miller, is only liable for ordinary care in the structure of his buildings and appurtenances.</p> <p>4. Same—may be liable where he makes dangerous approaches. If private warehousemen, merchants, blacksmiths, millers, or other persons engaged in business, construct approaches to their places of business, knowing the same to be defective, or have trap-doors known to be unsafe, where their customers must necessarily pass, and such defects are concealed, or not apparent, it seems they will be liable for any injury resulting therefrom.</p> <p>5. Unless a party is under some public duty to repair a way, even though to his place of business, he will not be liable, for failing to do so, for injury thereby caused to others.</p> <p>6. Contributory negligence. Where the servant of the plaintiff drove plaintiff’s team to defendant’s warehouse and wharf, and hitched the horses to a clog, but wound his lines around the hub of the wagon, so that, when the horses backed, the lines became shortened, and thus caused them to back into the river near by, where they were drowned, and the wagon and harness lost: Held, that, owing to the negligence of the servant, the plaintiff could not recover.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>This was an action of debt, brought by Josiah Pope and George Jekyl, against James Clark, John M. Holland and Louis P. Itugg, to recover the balance due on a contract for building a church.</p> <p>The defendants pleaded nil debet, and special pleas setting up damages for defects in the work.</p> <p>A trial was had, resulting in a verdict and judgment in favor of the plaintiffs for $414. The defendants moved for a new trial, which the court overruled.</p>

<p>"l. Action—right to abandon contract and sue for part performance. In a contract to furnish materials and do work on a building, where the employer refuses to pay for the work and material furnished, on the architect’s certificate, as he has agreed to do, the employee will be justified in abandoning the work, and he may recover for the work done and the materials furnished.</p> <p>2. Fraud—impeaching architect's certificate. Where, by contract, the owner of a building in process of erection was to pay the contractor for his labor and materials as the work progressed, the fact that the work specified in the architect’s certificate lacked some $45 of being completed will not be sufficient to impeach the certificate for fraud, and justify the owner in refusing to pay for at least the work actually done.</p> <p>3. Measure of damages — on partial performance. Where a party was employed to do the whole work in the building of a house, at a given price, to be paid for in installments, on an architect’s certificate, and the contractor abandoned the work for good cause, and, in a suit to recover for the work done and materials furnished, the court instructed the j ury that the plaintiff was entitled to recover their reasonable worth: Held, that as the contract itself furnished no rule to determine the value of any specific portion of the work, the instruction was not erroneous, nor in violation of the principle that the special contract affords the rule of damages, so far as it can be traced and followed.</p> <p>4. Practice—placinff cause on trial calendar. Where a rule of court only authorizes a cause to be placed upon the trial calendar when at issue, a cause was placed upon that calendar in which the general issue was pleaded, and a special plea showing a breach by the plaintiff of the contract sued on, but which alleged no sum as damages. The court refused to strike the cause from the docket, on defendant’s motion, and after this the special plea was amended and replication filed, and a trial had: Held, that-as the cause was substantially at issue, the court did not err.</p>

<p>Local laws—in respect to courts, abrogated by the new constitution. The 12th section, of the act entitled “An act to provide sanitary measures and health regulations for the city of Chicago,” etc., approved February 16, 1865, which authorizes the filing of an information, etc., is local, applying to the practice in the Criminal Court of Cook county only, and is therefore abrogated by section 29 of article 6 of the new constitution, and no trial and conviction can be had under such statute.</p>

<p>1. Chanceby—effect of sworn answer as evidence. Where an answer in chancery is required to be under oath, and it is responsive to the bill, it must be taken as true, unless overcome by evidence amounting to the testimony of two witnesses.</p> <p>2. Same—when answer sets up new matters. In a proceeding for the partition of land, an allegation in an answer that the petitioner or complainant had promised to give a certain interest in the land to a brother under whom the defendant claimed, and that such brother made valuable improvements on the land, upon the faith of such gift, is not responsive to the petition, and must be sustained by affirmative proof.</p> <p>3. Gift—promise to make, not enforaible. A mere promise to make a gift of the promisor’s interest in land, without consideration, is not binding on the party making it, especially when the use of the property is ample compensation to the promisee for his improvements, and taxes paid by him.</p>

<p>1. Contract—to sell and deliver—not excused by bad weather. Inclemency of weather furnishes no excuse for the non-performance of a contract to sell and deliver hogs on a specified day, unless it is expressly so provided in the contract.</p> <p>2. Measure op damages—in action by purchaser against vendor for failure to deliver. Where the vendor of hogs fails to deliver the same at the time and place agreed upon, the measure of the purchaser’s damages will be the difference between the contract price and the fair market value at the time and place fixed for delivery.</p> <p>3. Jury—right to test evidence by their general' knowledge and intelligence. It is proper for the jury to apply to the facts proved their general knowledge as intelligent men. They must test the truth and weight of evidence, and what it proves, by their knowledge and judgment derived from experience, observation and reflection.</p> <p>• 4. Vendor and purchases—latter must le ready and willing to perform,. In a suit by a purchaser of hogs, to be delivered to him at a certain time and place, to recover damages for a non-delivery, it is necessary to prove 'that he was ready and willing to receive and pay for the same at such time and place, hut slight evidence of such fact is sufficient.</p>

<p>1. Contract—void for uncertainty and repugnancy. Pn the sale and purchase of brick, the parties, on the same day, made the following memoranda: “ Bought 500,000 of good, merchantable-brick from Messrs.-A and B, to be delivered on Wabash avenue, just south of Van Burén street, at the rate of §6.37 per thousand, to be delivered this fall. A & B.” And' the other parties executed and signed the following: “Sold 50,000 good, merchantable brick to C & D, just south of Van Burén street, at §6.37%. per thousand; said O & D agree that we shall commence to deliver on. Wednesday next, or agreement is of no account. C & D:” Held, that • the memoranda, when separately considered, showed no sale, because, by the terms used, each party contracted with themselves, and taken together, were void for uncertainty and repugnance, and failed to express any contract.</p> <p>3. Parol evidence—to explain written contract. Parol testimony is inadmissible to show that certain written memoranda are contracts, and supply their terms, but the writings must be construed by themselves.</p> <p>3. Same—of contract attempted to be expressed in writing, but which is void for uncertainty. Where a contract, as reduced to writing, is void or unintelligible from any cause, parol evidence may be-received under appropriate special counts, to prove the verbal contract.</p> <p>4. Same—of the verbal understanding aside from writing. The rule holding, when parties reduce their agreement to writing, that all ante- • cedent verbal agreements in reference to the matter are merged, and it must alone govern, has reference to legal and valid agreements, and not' to those which are void or wholly unintelligible.</p> <p>5. This is not the case where the contract is required to be in writing, as, under the Statute of Frauds. '</p> <p>6. Coktbact—waiver of condition by subsequent pcert performance. If a contract to deliver a lot of brick is to be of no account unless the seller is permitted to commence delivering by a certain day, and he, after such day, delivers a part, this will be a waiver of his right to avoid the agreement, and when sued for not delivering the balance, he can not avoid liability on the ground he was prevented from commencing on the day named.</p> <p>7. Same—performance not excused by direction of an agent having no authority. A party will not be excused for not delivering brick to another under his contract, from the fact that such other party’s foreman directed him to stop, without authority from his employer to do so.</p> <p>8. Instructions—must be applicable to the evidence. It is not erroneous to refuse an instruction not applicable to the evidence, though it may contain a correct legal propositions</p>

William W. Farwell, Judge, presiding. This was a bill, in the nature of a bill of interpleader, filed by Frederick W. Newhall, against John Woolacott, Louis Beinhardt, Louis Hastens, and several others. The leading facts of the case may be found in the opinion of the court.

Writ op Error to the Circuit Court of Whiteside county; the Hon. William W. Heaton, Judge, presiding. This was an action on the case, by Fanny B. Burns against Henry Utley, to recover damages for an alleged unskillful treatment of a broken arm of the plaintiff. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for §800. The defendant brings the record to this court on writ of error.

John G. Rogers, Judge, presiding. This was a suit brought by George W. Brethauer against Charles F. Happel and Frederic Happel, before a justice of the peace. The demand indorsed on the justice's summons was $200. The other facts of the ease appear in the opinion of the court.

<p>1. Garnishment—truth of answer—whether material. Where á garnishee, in his written answer, denies his liability, and he testifies as a witness in the case, and his testimony is uncontradicted, it is a matter of no consequence whether his answer is wholly true or not, and it is not proper to submit the question to the jury to find whether the answer is true.</p> <p>2. Same—liability of mortgagee in possession, to garnishee process. Where a mortgagee of chattels reduced them to possession one or two days before he was garnisheed for a debt of the mortgagor, but had not sold the property, it was held, that he was not liable to the process on the ground that the property in his hands exceeded in value the sum in which the mortgagor was indebted to him.</p> <p>3. In case the mortgagee had sold the mortgaged chattels, and had an excess in his hands over his debt, or had refused to sell according to the terms of the mortgage, and converted the property to his own use, a different question would be presented as to his liability.</p> <p>4. Special verdict. Where the j ury find a general verdict in favor of the garnishee, and also find, specially, that his written answer is not true, this will not authorize the court to set aside the general finding and render judgment against the garnishee, as the special finding is not necessarily inconsistent with the general verdict.</p>

Charles.H. Wood, Judge, presiding. This was a bill in chancery, by Lydia Sturman, against Jacob Streamer, Eichard Evans, Alfred E. Harding, and William Sturman, to compel Jacob Streamer to release a mortgage which he bought of Evans. The opinion of the court states the leading facts.

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

William Brown. Judge, presiding. This was a proceeding commenced by the appellant to condemn the right of way over certain land belonging to the appellee. The petition was for the right of way over the north-west quarter of section 27, township 29 north, range 1 west of the fourth principal meridian, of which the defendant owned 123J acres.

William A. Porter, Judge, presiding. The opinion of the court contains a statement of all the facts necessary to an understanding of the case.

<p>Writ oe Error to the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.</p>

<p>1. Hotice—of pendency of suit, when conclusive and to what extent. If one carrier is sued for the loss of goods, and notifies a second carrier, to whom he delivered the same for transportation, of the pendency of the suit, and requires him to defend, the judgment against the first is not conclusive as to the question of the liability of the second. It is only conclusive on such privies as are liable over, and then only as to the fact that the judgment was recovered, and that it was for the value of the goods lost; but the judgment is not so far conclusive of the question of privity, as to fix the liability of the person served with notice.</p> <p>3. Judgment—binding efectos to privies. A person holding a covenant running with the land, when sued for the title or upon his covenant, may give notice to a prior grantor, in the chain of title, to sustain the same, and on his failure to do so, the judgment may be read in evidence, against Mm, to show the recovery, and the amount the last covenantor had to pay; but the remote covenantor may show that the recovery was not a breach of Ms covenant, and his undertaking or liability must be shown otherwise than by the judgment</p> <p>3. Gabbier—liability to first carrier for loss of goods. If a carrier undertakes to transport goods to a given point, and, at the end of its line, delivers the same to a packet company, who agrees to deliver the same at a certain point to a railway company, which it does, and the goods are lost by the fault of the latter company, and the first carrier is compelled to pay for the goods, it can not recover over of the packet company, which has performed its contract, but must look to the railway company to whom they were last delivered.</p> <p>4. Same—when bill of lading is binding as a contract. Where a carrier delivers goods to a forwarder, who is its agent and the agent of the company to whom the same are delivered, and he gives a bill of lading limiting the duty of the latter to deliver the goods to another company, this will make the bill of lading a contract, binding upon the first and second carriers, and the second carrier will not be responsible for the delivery of the goods to the consignee by the last carrier.</p> <p>5. Same—liability when, he ships over intermediate lines. If goods are lost by one carrier, in a line of carriers composed of several, the first to whom the goods are delivered, and who agreed to transport them to their destination, will be liable to the owner, and the latter will not be required to sue the carrier who lost the same, but this rule applies only in favor of the owner of the goods. The first carrier, if he sues to recover what he has paid, must sue the carrier in default.</p>

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

<p>1. Seevxce—return showing service on one of different name. The sheriff made a return upon a summons in chancery, against May Louisa Ismon, that he had served the same upon Mary Louisa Ismon: ■ Held, that, in the absence of proof to the contrary, this court must hold the names to indicate two distinct persons, and, consequently, that there was no service on May Louisa Ismon.</p> <p>2. Chancery-—record must show evidence to justify the finding. Where the court, in its decree, refers to the evidence upon which the facts are found, and it fails to support the finding, the decree will be reversed.</p> <p>3. Thus, on a creditors’ bill to set aside certain conveyances as in fraud of creditors, where the decree recited that the cause was heard upon the bill, answer, replication and exhibits, “ and also the proofs taken in the cause, to-wit,” naming the record in a partition suit, certain deeds, which were described, a recorded town plat, and then proceeded, “ and the court being fully advised, etc., and finding, from the proofs in the case, that the said deeds of conveyance from,” etc., to, etc., were made to hinder and delay, etc: Reid, that, as the decree professed to state the proofs, and there being no proof shown of the fraud, or that there were any creditors at the time of the execution of the deeds, the decree could not be sustained.</p> <p>4. In chancery causes, it is not to be presumed that any evidence was given in the cause, in the court below, except what appears in the record; and as to infants, strict proof is required, and the record must furnish evidence to sustain a decree against them, whether the guardian answers or not.</p>

<p>Weit of Ebbob to the Circuit Court of De Kalb county; the Hon. Theodobe D. Mubphy, Judge, presiding.</p> <p>This was a petition for a mandamus, filed by the Chicago and Iowa Railroad Company against James F. Glann, supervisor of Squaw Grove township, and others, to compel the issue and delivery of the bonds of the township, to the amount of §25,000, in pursuance of a vote of the people. The opinion of the court states the necessary facts of the case to a clear understanding of the opinion delivered.</p> <p>The court sustained a special demurrer to the petition.</p>

Writ of Error to the Circuit Court of Woodford county; the Hon. Samuel L. Richmond, Judge, presiding. This was a bill in chancery, by the trustees of Eureka College, against Nancy Terry and N. B. Terry, her husband, to foreclose a deed of trust. The opinion states the necessary facts.

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

<p>1. Specific pebfobmanoe. A party can not have a specific performance of a contract, in equity, unless he can show he has performed it in all its parts, or can show a just excuse for non-performance; and the burden of proof is on the complainant to show his right to the relief he seeks, by a clear preponderance of evidence.</p> <p>2. Same—refused for laches. Where a party, seeking a specific performance of a contract, delays filing his bill for eight years, and the delay is unexplained by any equitable circumstances, he can have no relief.</p> <p>3. Forfeiture—in contract of purchase. If parties under no disabilities choose to contract for a forfeiture in the sale and purchase of land, in the absence of any fraud or improper practices on the part of the vendor, a court of equity can afford the vendee no relief against the same.</p>

<p>Appeal from the Superior Court of'Cook county; the Hon. William A. Porter, Judge, presiding.</p> <p>This was a petition filed by Henry Linnemeyer against John Miller, Charles W. Eigdon and George F. Whitney, to enforce a mechanic’s lien, as a sub-contractor. The opinion presents the facts necessary to an understanding of the questions decided.</p>

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

William Brown, Judge, presiding. This was a bill filed by the Farmers’ Loan and Trust Company, against the Eacine and Mississippi Eailroad Company and others, to foreclose a mortgage of $700,000. There was a cross-bill filed, and the court decreed the sale of the mortgaged property.

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

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

William W. Heatost, Judge, presiding. This was an action of ejectment, by Leonard J. Nichols by his next friend, Charles C. Nichols, against Charles Mitchell, for the recovery of the northeast quarter of section 13, township 21 north, range 5 east, in Whiteside county, Illinois. The cause was tried by the court without a jury, who found for the defendant.

William W. Heaton, Judge, presiding. . This was a petition for partition, filed by William H. Bennett against Susan A. Turner, Amos W. Simpson, Mary F. Simpson and William E. Ellis. The petitioner acquired his title by a conveyance from Algernon B. Ellis, one of the heirs of Emmitt Ellis, deceased.

<p>Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p> <p>This was an action on the case, for negligence, by John Heaney, against Samuel B. Chase, Horace G. Chase, Charles C. Chase and John B. Adams, to the July term, 1872.</p> <p>The plaintiff, on April 26, 1866, purchased of James O. Humphrey a part of lot 4, in block 40, in the original town of Chicago, which was conveyed by Humphrey and wife on the same day. On August 12, 1867, the land was sold for taxes, and on September 8, 1869, a deed was made for the same to Asahel Gage, by the sheriff of the county. In the spring of 1869, the plaintiff employed the defendants, who were then engaged in the business of making examinations, searches and abstracts of title, to continue and bring down the plaintiff’s abstract of title to the tract above named, with others, for which a fee of $25 was paid.</p> <p>The other material facts are stated in the opinion of the court. The plaintiff recovered judgment for $1300, from which the defendants appealed.</p>

<p>Negligence — injury at street-crossing. In a suit against a railroad company for injury to the plaintiff, alleged to have been occasioned by the negligence of the defendant, it appeared the plaintiff was injured by a collision while attempting to cross the defendant’s track upon a public street; that there were two or more main tracks at the place of the accident, and that the plaintiff was detained with his horse and wagon by a train of cars of another company, on the track next to him, and that as soon as this train passed, he started to drive across the track, there being a train of defendant backing across the street on one of the other tracks, which struck his horse and wagon. It also appeared that this train was moving at the speed of four or five miles per hour, that the bell was being rung, that a sufficient number of men were in charge of the train, and that there was a flagman at the crossing in the discharge of his duty. The weight of evidence also showed that the flagman hallooed to plaintiff to stop, and made efforts to keep him from crossing. It was held, that, under this state of facts, a verdict in favor of the plaintiff and against the defendant could not be sustained.</p>

Charles H. ¡Wood, Judge, presiding. This was an action of ejectment, by ¡Richard P. Morgan, against Edward Gooding. The opinion of the court states the necessary facts.

W. W. Heaton, Judge, presiding. This was an action on the case, by Catharine E. Clark against The Chicago and Northwestern Railway Company, to recover damages for causing the death of Horace Clark, the plaintiff’s intestate, through negligence. The opinion of the court contains a summary of the facts.

William A. Porter, Judge, presiding. This was an action of debt, by Asa D. Waldron and others against Joseph Moffitt and Samuel Simons, upon an appeal bond. The trial resulted in a verdict and judgment in favor of the plaintiffs for $1260.50, from which the defendant, Simons, appealed.

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

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

<p>1. Practice—objection to evidence, and, exceptions. A party can not assign for error the admission of testimony to which he has not objected, and excepted to the ruling of the court overruling his objection.</p> <p>3. Error will not always reverse. The admission of improper testimony, against objection, which is immaterial to the issue, and is not calculated to mislead the jury, is not ground for the reversal of a judgment.</p> <p>3. Evidence—materiality. Where a plaintiff had testified, without objection, that his firm had charged the defendant with thirty-three plows, and then testified that, in settlement, defendant said he did not know any thing about the number of plows received; that his son said seven plows were charged which he never received; that they had been credited with part of the money, and they paid for all but the seven plows they never got, and the witness then testified, under objection, that the seven plows were charged to the defendant: Held, that the evidence objected to could not prejudice the defendant, the question being whether the thirty-three were all delivered, and the testimony objected to not tending to prove a delivery of the seven which were disputed.</p> <p>4. New triaIi—finding as to the facts. The mere fact that this court is not free from doubt as to which way the preponderance of the testimony is, upon a disputed fact, does not authorize it to disturb the verdict.</p>

<p>1. Trespass by Aminas—defective division fence. Where parties own adjoining lands, separated by a division fence, and the defendants’ horses and cattle break through defendants’ portion of the fence, which is defective, and damage, the plaintiff’s crops, the latter may maintain an action against the defendants to recover the damages done by such stock, and this notwithstanding his part of the fence is also defective.</p> <p>2. Parties defendant—when owners of stock in severalty may be sued, jointly for trespass. Where the horses trespassing upon the plaintiff were owned by several defendants, not jointly, but severally; were kept together in a common herd on the owners’ farm, and were under the joint control of all of the owners, and they broke through the defendants’ portion of a division fence, which was out of repair, and damaged the plaintiff’s crops, it was held, that the plaintiff might maintain an action against all the defendants, jointly.</p> <p>3. Trespass by stock—who liable for. The party in possession of stock, and who has control over them, is liable for damage done by them, in the same manner as though he were the owner. The owner who hires his stock to pasture in the field of another, when the latter puts them in a field adjoining one, into which they break and do damage, is not liable to the party injured.</p>

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

Charles H. Wood, Judge, presiding. This was an action of assumpsit, by James A. Roche against Leonard W. Volk, John Feeny and Edward Burk-hard t, upon a promissory note. The opinion of the court contains a statement of the points involved. The defendants appealed.

<p>Appeal from the Circuit Court of Grundy county; the Hon. Josiah McBoberts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Silvanus Wilcox, Judge, presiding.</p> <p>This was an action of trover, by Alpheus Badger against The Batavia Paper Manufacturing Company and William M. Van Hortwick, to recover for the conversion of a rotary boiler and attachments. A trial was had, resulting in a judgment in favor of the defendants, from which the plaintiff appealed.</p>

Thomas H. Tipton, Judge, presiding. This was an action of assumpsit, brought by James Duquid and James Crichton against Maurice Dwyer, for the price of ■coal sold and delivered under the following special contract: “Chicago, July 9, 1872.

Joseph E. Gaby, Judge, presiding. This was an action of assumpsit, by Jacob E. Shipherd and Benjamin J. Sweet, for the use of Jacob E. Shipherd, against William H. Hoyt. The opinion of the court gives the facts of the case in substance. The plaintiffs recovered judgment for $1200 and costs, in the court below, and the defendant appealed.

William A. Portee, Judge, presiding. This was an action of forcible detainer, brought by Joseph E. Moss, against John Snowell and Plenry Snowell.

<p>1. Removal of cause—to Federal courts. Where a decree is reversed in this court, and the cause remanded with specific, directions to the court below to dismiss the bill, this is a final disposition of the cause, and it can not subsequently be removed to the Federal Court, under the act of Congress of March 3, 1869.</p> <p>3. Reversal—with specific directions. Where a case has been tried in this court upon its merits, and remanded with specific directions to dismiss the suit, or to do some other act, the court below has no power to do anything but to carry out the specific directions.</p> <p>3. Error—a decision in conformity to mandate of this court, can not be assigned as error. Where a cause is reversed in this court, and remanded with directions to do a certain act, which is done, the action of the court below can not be assigned for error. The decision can only be reviewed by a rehearing in this court.</p>

Edwin S. Leland, Judge, presiding. This was an action of trespass, by Thomas Haverty and a number of others against the appellants, for breaking and entering the plaintiffs’ close, etc. A trial was had, resulting in a verdict of $1100 in favor of the plaintiffs, upon which the court rendered judgment, refusing defendants’ motion for a new trial. The essential facts of the case appear in the opinion of the court.

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

<p>1. Eminent domain—damages to property not taken. Where a railroad is located over a tract of land, and compensation is allowed the owner for the land actually taken, he can not recover damages as to a small part of the tract, not taken, if the whole is not damaged, when taken together.</p> <p>2. The jury, under the act of 1872 relating to right of way, are not required to assess the damages to a strip of land lying within a few feet of the right .of way of a railroad, hut the damages, if any, to the entire tract, by reason of the construction and operation of the road. The effect must be considered upon the market value of the entire tract, and not a distinct part.</p> <p>3. Same—measure of damages. The true measure of compensation for land not taken by a railway company for a right of'way, is, the difference between what the whole property would have sold for, unaffected by the railroad, and what it would sell for as affected by it, if it would sell for less. The damages must be for an actual diminution of the market value of the land, and not speculative.</p>

E. S. Williams, Judge, presiding. This was a bill for specific performance, filed by William H. Hoyt against George W. Tuxbury, George W. Gerrish and George M. Gibson. The opinion of the court states the necessary facts.

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Charles H. Wood, Judge, presiding.</p> <p>This was an action of replevin, brought by Ebenezer Harris and John Worden, against Irwin E. Bliss, for certain goods and chattels. The defendant, among other pleas, justified the taking and detention of the property under executions issued upon the judgments mentioned in the opinion of the court.</p> <p>The plaintiffs, among other things, replied that there was no valid judgment rendered against said William Mower.</p> <p>The court below held the judgments to be void, and a recovery was had in favor of the plaintiffs. The defendant appealed.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Henby Booth, Judge, presiding.</p> <p>This was a proceeding to condemn lots 11, 12 and 17, in block 4, and lots 3, 4 and 5, in block 3, in Eberhart & Wedge’s addition to Chicago. The appellant was the owner of 73 lots in this addition. The appellee, being about to construct a railroad diagonally through them, filed its petition to condemn the lots above named, they being the only lots which the road touched or structurally injured in passing through the addition. The appellant (defendant below,) filed his answer and cross-bill, in which he claimed to own 68 lots adjacent to the road, besides those sought to be condemned, and asked that there be awarded to him, in the same proceeding, such damages as the jury should find those other lots would sustain by the location of the road. Under the instructions of the court, the jury gave $6000 for the lots taken,and nothing for those not taken. The defendant appealed, making no question as to the damages allowed for the lots taken, but complaining as to the finding as to the others.</p>

<p>' 1. Notice. Whatever is sufficient to put a party upon inquiry which would lead to the truth, is, in all respects, equal to, and must be regarded as, notice.</p> <p>2. Same—who we chargeable with. If a subsequent purchaser acts in bad faith, and wilfully or negligently shuts his eyes against those lights which, with proper observation, would lead him to a knowledge of facts affecting the subject of his purchase, he will be held to have notice of such facts.</p> <p>8. Same—recitals in a deed. The recitals in a deed in the chain of title, are such notice to a purchaser as would put him on inquiry as to the nature and extent of the matters referred to in the recitals.</p> <p>4. Same—to what extent recitals in a deed put a party on inquiry. In this case, the owner of a tract of land had, in his lifetime, executed a trust deed to secure the payment of an indebtedness, with a power of sale upon default in payment. The indebtedness was paid after the death of such owner, but the trustee afterwards sold under the deed, to parties who had notice of such payment. Before any sale was made by the purchaser, there were put upon record, in the office of the recorder of deeds of the county where the land was situated, a power of attorney from one to another of the heirs, in which was a recital that by the act of one of the purchasers at the trustee’s sale, naming him, and others, the rights of some of the heirs had become involved; also, two mortgages on said premises, executed by a part of the heirs, in both of which it was recited that a suit had been commenced by such heirs to recover their interest in the land, giving the title and purpose of such suit, and that such suit had been dismissed by agreement of counsel, without adjudication: Held, that the recitals in the power of attorney and mortgages were sufficient to put subsequent purchasers upon inquiry as to the truth of the recitals, and to charge them with notice of everything disclosed by the records, in the proceedings mentioned in such recitals, and of everything which they could have reasonably learned by inquiring in the direction to which the recitals pointed.</p> <p>5. Trust deed—effect of sale before default. Where a deed of trust confers upon the trustee power to sell, upon default in payment of the debt thereby secured, a sale made without such default to one who has, or who is chargeable with notice that there has been no default, can not confer anything bej'ond the legal title in trust for the benefit of the grantor in the trust deed, or, if he be dead, of his heirs.</p> <p>6. Under a deed of trust, with power of sale upon default in payment of the debt thereby secured, the power of sale does not become operative until there is such default, and a sale, made after the debt has been paid, is voidable as against a purchaser with notice, or the grantee of such purchaser with like notice.</p> <p>7. Same—who may become purchasers. When a party executes a deed of trust to secure the payment of money, and dies, leaving children, some of whom are adults and some minors, and the property is sold under the deed of trust in default of payment of the debt thereby secured, there is no reason why the adult heirs may not purchase the same at such sale, and acquire title thereby, unless prevented by occupying a fiduciary relation to the other heirs. '</p> <p>8. Minors—power of next friend in a suit. A next friend can only claim and pursue the rights of a minor, and is powerless to yield or cede them to others, and the same is true of an attorney.</p> <p>9. Where a suit is brought by a minor by his next friend, and, by agreement of the attorneys in the case, it is dismissed, the rights of the minor are not affected, nor is he thereby estopped from afterwards suing upon the same cause of action.</p> <p>10. Same—laches. A delay of four years after minors have become of age, is not such laches as to prevent their obtaining relief against a fraudulent sale of their real estate, made while they were minors, where no rights have been acquired by other persons, or material change in the property occurred, after they arrived of age and before suit brought.</p> <p>11. Estoppel. A party, who was an adult, claimed an interest in certain land, and executed to his brother-in-law a power of attorney, authorizing him to sue for and recover his interest in such land, and to mortgage and incumber the same, and also executed a mortgage to an attorney at law, reciting that such attorney had brought suit for the recovery of his interest in the land, in and by which mortgage he agreed to give said attorney a certain portion of whatever interest was recovered. Afterwards, by consent and agreement of both the said attorney in fact and attorney at law, on the one side, and the parties and attorneys on the other side, the suit was settled, and the land in controversy was sold under a mortgage, which was one of the subjects of controversy in the suit, and the claimant received a portion of the proceeds of such sale: Held, that he was bound by this arrangement made by his attorney at law and in fact, and could not afterwards set up any claim to the land.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. E. S. "Williams, Judge, presiding.</p>

John G. Eogees, Judge, presiding. This was a proceeding in the nature of a quo warranto. The information charges that the defendant usurped the office of a commissioner of the board of police, in the county of Cook, and State of Illinois. The defendant pleaded to the information that he was rightfully acting as one of the commissioners of the board of police, by virtue of an appointment made by the mayor of the city of Chicago.

This was a bill in chancery, by Benjamin F. Quimby, against Henry M. Shepard, administrator of Charles W. Ricketson, and other parties, for the purpose of perfecting the title and ascertaining the interest of the estate of Ricketson in the lands described in the bill, and to enjoin the administrator from selling the same to pay debts, until such title and interest was settled and ascertained.

<p>1. Malicious prosecution—of the neeessary elements. The one most important element is, want of probable cause. Malice is unimportant, if there be probable cause. Malice and want of probable cause must both be present. The gist of the action is, that the prosecutor, or party suing out the writ, acted maliciously, and without probable cause. If there is no malice, or if there be, and there was probable cause, the action will not lie.</p> <p>2. Probable cause—what constitute§. A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged, constitutes probable cause.</p> <p>3. Where the plaintiff had been, for several years prior to January, 1869, engaged in an extensive mercantile business, and had received large shipments of goods during the latter part of December, 1868, and up to January 2d, 1869, through the defendants, as common carriers, on which he failed to pay the freight, and had received, through the hands of the defendants, as common carriers, packages containing very considerable sums of money, being the returns from goods shipped by him to his customers, and had given checks to defendants for freight at several different times, all of which were dishonored at the bank on which they were drawn, for the reason that he had no funds there to pay them; and, on the second or third day of January, when the defendants demanded payment of their bills for freight, told them he had no money, and that since the first day of January he had been doing business as agent: Held, that these facts constitute probable cause for swearing that the plaintiff had, within two years, fraudulently conveyed or assigned his property and effects, so as to hinder and delay his creditors, and to cause an attachment on that ground to be issued against his property.</p> <p>4. Same—acting upon, advice of counsel. In an action for malicious prosecution in respect to the suing out of an attachment against the plaintiff’s property, it seems, if the defendant acted upon the advice of competent counsel, and in good faith, in suing out the writ, he will be relieved from liability to respond in damages, for want of probable cause, for his action in the premises, the same as in a case where the prosecution was on a criminal charge.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>The facts in this case will be found in 55 Ill. 362, as they were presented in a prior bill filed, which should be taken in connection with those set up in the new bill, as stated in the opinion.</p>

Lambert Tree, Judge, presiding. The action was trespass quare clausum fregit, by appellees against appellants, to recover damages for a forcible ouster of the former by the latter from premises described as No. 24 West Madison street, Chicago.

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

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

<p>1. Trust—redemption of land with one's own, money. Where the owner of land borrowed money, and gave an absolute conveyance of the same as a security for its re-payment, with interest, and afterwards, getting into a difficulty, left the country for parts unknown, and, on his way, wrote to his father and brother-in-law to redeem the land and it should be theirs, and the father did redeem the same on the faith of such letter, paying all the land .was then worth, taking a deed to himself, and improved the same, arid finally sold it, investing the proceeds in Other land: Held, that the father was not a trustee for the son, and, as such, liable to account for the rents and profits, especially after a lapse of eighteen years unexplained. '</p> <p>2. Mortgage—election to treat the conveyance as absolute. If a party makes an absolute conveyance of land as a security for the payment of money, he may abandon the payment of the debt, and cancel the secret agreement, and treat his conveyance as absolute, instead of a mortgage, and he will be bound by such election.</p> <p>3. Laches—as affecting relief in equity. A court of equity will refuse its aid to stale demands, where the party has slept upon his rights, or acquiesced for a great length of time. Nothing can call forth the aid of the court but activity, good faith and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Geo. W. Pleasants, Judge, presiding.</p> <p>This was a bill in chancery, brought by Elizabeth L. Davenport against John Karnes and John B. Hagin, to set aside a sale of a tract of land made under execution against Thomas E. Davenport, the complainant’s husband. The opinion of the court states the grounds upon which the relief was sought.</p>

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

<p>Res adjthjicata—decisions of Supreme Court. The Supreme Court has no power to review its own judgments, except upon a petition for a rehearing, presented in accordance with the rules established for that purpose.</p>

<p>1. Jurisdiction. The power to hear and determine a case, is jurisdiction ; it is coram judice whenever a case is presented which brings this power into action.</p> <p>3. Same—judgment by confession. Where a declaration, the warrant of attorney, and affidavit of its execution, the note and cognovit by the attorney authorized, are filed, the defendant is before the court, and there is enough to set the court in motion to hear and determine. • 1</p> <p>3. If, in such case, the court proceeds, and, in rendering judgment, acts without sufficient evidence, without the oral testimony required by the 3d section of the act of 34th of February, 1859, concerning confessions of judgment, having been produced, a case will be presented, not of want of jurisdiction, but one only of error in the exercise of jurisdiction.</p> <p>4. The production of the evidence required by that act to authorize the judgment is not a jurisdictional fact, where the court has before acquired the right to proceed to hear testimony and determine the case.</p> <p>5. Cognovit—warrant of attorney to confess judgment. A warrant of attorney to confess judgment, is a familiar common law security, and the entry of judgment by cognovit thereunder is a proceeding according to the course of the common law, which courts have ever entertained, in the ordinary exercise of their authority as courts of general jurisdiction.</p> <p>6. And the fact that the statute has regulated the mode of procedure, does not convert the proceeding into one of such a special statutory character, that the same presumptions do not obtain as in the case of ordinary judgments of superior courts of general jurisdiction.</p> <p>7. Although, by the declaration, the action may appear to be prematurely brought, a confession of judgment will cure the defect.</p>

<p>1. Makriage —presumption of. The cohabitation of two persons of different sexes, and their behavior, in other respects, as husband and wife, always afford an inference, of greater or less strength, that a marriage has been solemnized between them; yet such inference is destroyed by evidence that no marriage, in fact, ever was solemnized.</p> <p>2. Same—whether valid if entered into according to common lam. Where the statute does not prohibit or declare void a marriage not solemnized in accordance with its provisions, a marriage without observing the statutory regulations, if made according to the common law, will still be valid.</p> <p>3. Same—evidence of, at common law. By the common law, if the contract is made per verba de presentí, it is sufficient evidence of a marriage. If it be made per verba de futuro cum copula, the copula is presumed to have been allowed on the faith of the marriage promise, and that the parties, at the time of the copula, accepted of each other as husband and wife; hut this is only a rule of evidence, and it is always competent, in such cases, to show that the fact was otherwise.</p> <p>4. If the woman, in surrendering her person, is conscious that she is committing an act of fornication, instead of consummating her marriage, the copula can not be connected with any previous promise, and marriage is not thereby constituted.</p>

<p>Replevin—does not lie for property taken for taxes. The action of replevin does not lie to recover property levied on for taxes, although, it may he seized on a warrant against one not the owner of the property. The owner’s remedy in such case is hy an action of trover or trespass against the officer.</p>

Richard G. Montony, Judge, presiding. This was an action brought originally before a justice of the peace, by Mary Ann Tripp against Daniel Freese and others, to recover damages for selling liquor to her husband, William Tripp. The opinion of the court states the essential facts of the case.

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

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

<p>1. Former adjudication—decision of this court conclusive of second, appeal.</p> <p>2. Same—not conclusive as to points not decided,. On bill to declare a trust, and for partition of land, a decision of this court establishing the trust, and remanding the cause with directions that a partition be made according to the rights of the parties in interest, and an account be taken, will not preclude the parties from showing that the ancestor’s title was divested under a deed of trust, given by him in his lifetime.</p> <p>3. Redemption—acquiring title under deed, of trust, -by one heir, is not a redemption. When land is sold under a deed of trust given by a party in his lifetime, and a stranger becomes the purchaser, and afterwards conveys the land to another in trust for one of the heirs of the deceased grantor, this will not operate as a redemption from the trust deed, and inure to the benefit of all the heirs of the grantor.</p> <p>4 Partition—where premises a/re incumbered, the incumbrances to be ascertained by the court. Where partition is sought of premises on which there are incumbrances, the court should ascertain the incumbrances by proof, and apportion them according to the rights of the parties, and not intrust this duty to the commissioner.</p> <p>5. Same—disposition of funds belonging to the estate. Where there is money due for insurance on account of injury to the property hy fire, and there are incumbrances on the property, on a bill for partition and an account, the court should direct the insurance money to he applied to the removal of all the matured incumbrances, before making any distribution thereof.</p>

<p>1. Mechanic’s lien—decree—time for payment. Since the act of 1872, allowing redemption from sales in mechanic’s lien cases, it is no longer necessary that the decree for the sale of the premises should give time in which the defendant shall pay the sum found to be due.</p> <p>2. Former decisions. The ground of the decisions in Link v. Architectural Iron Works, 24 Ill. 551, and Rowley v. James, 31 Ill. 298, that the decree in a proceeding to enforce a mechanic’s lien should fix a time for the payment of the money, was that there was then no redemption from the sale under such decree, but as redemption is now allowed, the rule in those cases no longer obtains.</p> <p>3. Default—setting aside. Where the defendant in a proceeding to enforce a mechanic’s lien, fails to answer on or before the day on which the cause is set for trial on the docket, and his default is taken, in the absence of sufficient cause shown it is not error to refuse to set aside the default, either at the same, or the next succeeding term. And in such case, if the court imposes terms as a condition to opening the default, it is no error.</p> <p>4. Set-off—under what state of pleadings. In a proceeding for a mechanic’s lien, where the defendant has failed to answer, and a default entered against him, he has no right to have a distinct debt due him from the petitioner, in nowise connected with the subject matter of the suit, set-off against his indebtedness. Under such a state of pleadings a set-off can not be allowed.</p>

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

<p>1. Malicious prosecution—burden of proof. In an action for malicious prosecution for causing the plaintiff’s arrest, the burden of proof is upon him to show clearly, by a preponderance of evidence, that the defendant did not have probable cause to institute the criminal prosecution against him.</p> <p>2. Same—what is probable cause. Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.</p> <p>3. Where a party is arrested on a charge of larceny, and the circumstances are such as to cause a reasonable suspicion of his guilt, a verdict, finding the prosecution to be malicious, will be set aside.</p> <p>4. Same—legal advice, If a party, before commencing a criminal prosecution, makes a full and fair statement of the facts of the case to his legal adviser, with an honest view to learn if they will warrant the prosecution, and is advised by his'attorney that they will, this will go far to show probable cause, and that he acted without malice.</p>

<p>1. Debt—when it lies. The action of debt lies whenever indebitatus assumpsit will lie, and is a concurrent remedy. To maintain debt upon a specialty, the instrument must show upon its face an undertaking to pay a sum certain to a specified person, and at a certain time.</p> <p>2. An action of debt will not lie upon an ordinary chattel mortgage which contains no promise, undertaking or covenant, by the mortgagor, to pay the money secured by it.</p>

<p>1. Injunction bond—damages, when and how assessed. Where the condition in an injunction bond was, that the obligors should pay or cause to be paid to the obligee all such costs and damages as should be awarded against the obligors in case the injunction should be dissolved, it was held, that the damages must be assessed by the chancellor after the dissolution of the injunction and before the bill in chancery was disposed of, to authorize a recovery on the bond in an action at law.</p> <p>2. Where such assessment is not made by the chancellor, damages can not be assessed in an action at law on the bond, and no recovery can be had beyond the amount of costs growing out of and connected with the injunction.</p> <p>3. Pbactice. When an injunction is dissolved, and the defendant is unable to procure his evidence to prove the damages sustained, the court would continue the case until he could do so, and if it is not practicable to have damages assessed at the term when the injunction is dissolved, he can file his claim, and have them assessed at the next or some subsequent term.</p>

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

Joseph E. Gary, Judge, presiding. This was a bill in chancery, brought by Charles H. Weaver against William A. Poyer and Timothy M. Bradley, to enjoin the collection of a judgment which had been rendered against the complainant in the Superior Court of Cook county, by default, on the 16th day of May, 1872, in favor of Poyer, for the sum of $1446.50 damages, and' costs, on which an execution had been issued and placed in the hands of Bradley, the sheriff of Cook county, to…

<p>1. Removal of cause from State to United States court. A petition by a corporation for the removal of a cause from a State to a United States court, under the act of Congress of July 37, 1868, should state that the defendant is a corporation organized under a law of the United States, or that there is a defense arising under the constitution of the United States, or some treaty or law of the United States.</p> <p>3. To entitle a defendant corporation to have a Cause removed from a State court to the circuit court of the United States, under the act of Congress of March 3, 1867, the petition should show that all the corporators are non-residents of the State.</p> <p>8. Witness—impeachment—by contradictory statements. When a written statement, made by a witness, which is materially different from his testimony about the same subject matter, is shown to him on cross-examination, and an opportunity thus afforded for explanation of the discrepancies, it is proper to let the paper be read in evidence, as a contradictory statement, for the purpose of impeachment,</p> <p>4. Negligence. The question of negligence is one of fact, which must be left to the jury for determination.</p> <p>5. Instructions—modification. Where, in the modification of an instruction, the court but repeats at the end what is said in the body of it, it is not admissible for the party asking the instruction to assign such modification for error.</p> <p>6. Same—considered as a series. In an action by a passenger against a steamboat company for damages, claimed to have been caused by the negligence of the company, an instruction that, before the jury can find the defendants guilty, they must believe, from the evidence, that the defendant was guilty of greater negligence than the plaintiff, when taken by itself is calculated to mislead the jury.</p> <p>7. But if other instructions are given on the same side, stating clearly what acts of negligence on the part of the plaintiff will prevent his recovery, so that the jury can, from a consideration of the entire series, obtain a correct apprehension of the law applicable to the case, the misleading-feature of such instruction will be thereby corrected.'</p> <p>8. Damages—whether excessive. Where the plaintiff had both the bones of the lower part of his right leg broken, by reason of the negligence of the defendant, and was for several months wholly incapacitated from labor, was subjected to considerable expense, and his injury is permanent, §2500 is not outrageously excessive damages.</p>

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

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

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

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.</p>

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

<p>1. Tbttstee—presumed to perform his duty. The presumption is, that parties charged Avith a trust perform their duty, until the contrary appears; and when an act is susceptible of two opposite constructions, one consistent with innocence and fidelity to duty, and the other the reverse, the law presumes in favor of innocence and fidelity to duty.</p> <p>3. Same—right to deal with trust property for his own benefit. A trustee is only prohibited from dealing with the trust property for his own benefit so long as the trust continues, and as soon as the trust ceases, he occupies the same relation to the trust property that a stranger to the trust does, and, acting in good faith, may become the owner of the property, by purchase or otherwise.-</p> <p>3. Same—duties under a mortgage with power of sale. When the mortgagee, in a mortgage authorizing a sale and conveyance by him, makes such sale in compliance with the terms of the mortgage, and conveys the premises to the purchaser in good faith, and without any previous arrangement between him and such purchaser for a reconveyance, his duties as trustee, in regard to the mortgaged property, are ended, and he is at liberty to deal with the purchaser in relation to the property in good faith, the same as if such purchaser had derived title through some other source.</p> <p>4, Same—title acquired under sale made by him—whether void or merely voidable. If the mortgagee, with power of sale, sells and conveys under the mortgage to another, with the understanding that the purchaser is to convey to him, and the purchaser does so convey, the title thus acquired will not be absolutely void, but voidable only; and in such case, if steps are not taken by the owners of the equity of redemption, upon knowledge of the fact coming to them, ratification of the sale will be implied.</p> <p>5. Sale heder a mortgage, with power to selh and convey— whether it can he made in the-absence of the mortgagee. When a sale under a mortgage is conducted by the attorney of the mortgagee, in his absence, and the mortgagee, in whom the legal title as well as power of sale, coupled with an interest, is vested by the mortgage, subsequently ratifies the sale by making the necessary deed for the property, the mere fact that the sale is conducted by the attorney in the absence of the mortgagee will not render the title derived therefrom absolutely void.</p> <p>6. The mortgagee may convey to the purchaser in his own name, when the mortgage expressly authorizes him to do so.</p> <p>7. Notice—recitals in.a deed, of facts which may or may not amount to a fraud. The recitals in a deed, of a fact which may or may not, according to circumstances, amount to a fraud, will not affect a purchaser for a valuable consideration, denying actual notice of the fraud, nor will circumstances amounting to a mere suspicion be deemed notice.</p> <p>8. Same—possession of land—notice. The possession of land is notice of the extent and character of the claim of those holding possession, and nothing more.</p> <p>9. In a suit between two parties in relation to the title to land in the possession of a third party, who claims adversely to both of them, such adverse possession is notice of nothing more than the extent and character of the claim of such adverse occupant.</p> <p>10. Laches. In 1856 the complainant executed to one of the defendants a mortgage, to secure the payment of certain promissory notes, the last of which became due in four years; the mortgage contained a power of sale. Default was made in the payment of the last note, and the mortgagee gave notice and sold, in compliance with the mortgage, in 1862. A short time after the deed was executed to the purchaser, he reconveyed to the mortgagee, who, from that time forth, claimed to own the property, and sold portions of it at different times to other parties, who have held, occupied and improved it—of all which complainant had notice. In 1869 the complainant filed his-bill, asking to be allowed to redeem from the mortgage, on the ground that the sale by the mortgagee to the purchaser, and the reconveyance by the purchaser to the mortgagee, were made in pursuance of an agreement entered into between the mortgagee and purchaser before the sale; that such conveyances were to be so made with the view of fraudulently depriving the complainant of his equity of redemption, and that the same were for that reason void: Held, that without reference to any other questions involved in the case, the complainant had been guilty of such laches, in asserting whatever rights he may have had in the property, as must, of itself, preclude his right to recover.</p>

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

<p>1. Construction—of legislative grants. All grants by the legislature must, in eases of doubt, be construed most favorably to the government.</p> <p>3. When an enactment will bear two constructions, one injurious to the public and the other not, the courts must adopt that which will not work injury.</p> <p>3.. There is always an implication connected with grants to corporations, that, in performing their functions and exercising their powers, they shall only employ lawful and honest means.</p> <p>4. When a grant of power is conferred on such bodies, and the means of its exercise are not specified, they may employ the most natural and appropriate legal means to accomplish the end; but they are not thereby authorized to employ any means they choose, without regard to the rights of others, the interests of individuals, or the welfare of communities. The means adopted must be suitable to the end, and in conformity with the maxim, sic utere tuo ut dlienum. non Irndas.</p> <p>5. Police power of the State—who subject thereto. All persons possess their rights, whether to things tangible or intangible, subject to the general police power of the State; and corporate bodies are not, nor can they be, a privileged class in this regard.</p> <p>6. The exemption of an individual or a class of individuals from punishment for crimes and misdemeanors, by an act of the General Assembly, would not prevent that body from the repeal of such law, and bringing them under the general law punishing crimes and misdemeanors; and the same rule applies to a body corporate.</p> <p>7. The charter of the village of Hyde Park authorized the town authorities to determine what were nuisances, and to abate the same, with a proviso that nothing therein contained should authorize the town or its officers to prohibit, interfere with, hinder or obstruct parties engaged in carrying offal from the city of Chicago to a designated point in the town, and from manufacturing the same into an agricultural fertilizer, etc. In 1869 this charter was revised, and the same powers as in the original conferred, with the proviso that such powers should not be exercised against the Northwestern Fertilizing Company until the lapse of two years after the passage of the act: Held, that such inhibition from exercising the police power against such company did not inure to such company as a grant; that it was only a police regulation operating upon and controlling the village government, and that the company could claim no privilege under it after the expiration of the two years.</p> <p>8. The enactment hy implication fully authorized the village to enact appropriate ordinances to abate nuisances, and to enforce the same after the expiration of the two years.</p>

William A. Porter, Judge, presiding. Daly and the Mahons had been co-partners in the wholesale millinery business, and, August 27, 1872, they entered into an agreement, under seal, for a dissolution of their co-partnership, Daly thereby transferring to the Mahons all his interest in the partnership property, and they agreeing to indemnify him against all the liabilities of the firm.

John G. Rogers, Judge, presiding. This was an action of assumpsit, brought by Robert Clark and John T. Raffin, surviving partners, etc., against Stephen W. Rawson, to recover a sum claimed to be due from the defendant, for certain materials furnished and labor performed by the plaintiffs. A trial was had, which resulted in a verdict and judgment in favor of the plaintiffs for $206, the price of the materials. To reverse this judgment, the defendant appealed to this court.

<p>Appeal from the Circuit Court of Kane county; the Hon. Silvanus Wilcox, Judge, presiding.</p> <p>This was a bill in chancery, filed by Jeremiah Goodwin and a number of other tax-payers of Aurora township, in Kane county, against Martin B. Miller, collector of that township, and Henry C. Paddock, county treasurer of Kane county, to restrain the collection of a tax levied to pay interest and a portion of the principal of $10,000 in bonds, issued by the town of Aurora on a subscription to the capital stock of the Ottawa, Oswego and Fox Elver Valley Bailroad Company. The opinion of the court states the grounds upon which the relief was granted.</p>

<p>1. Counter affidavits, on a motion to set aside the forfeiture of a recognizance supported by affidavit, are not admissible.</p> <p>2. Forfeiture of recognizance — grounds for setting aside. Where it is shown that the failure of a party to appear, according to the condition of hi-s recognizance, was not for the purpose or with intent to evade the law, and that he is guilty of no laches or negligence in appearing at the earliest opportunity after the cause which kept him away is removed, he will be entitled to be discharged from a judgment of forfeiture, upon the payment of costs.</p> <p>. 3. Where- a party, entering into recognizance to appear and answer to a criminal charge, fails to appear at the time required, in consequence of being under bond to appear at the same time in a foreign court, and to save his security in such bond, this will afford good cause for setting aside a forfeiture of his recognizance, if he in good faith surrenders himself as soon as he can after being released from attendance in the foreign court, and within a reasonable time after the forfeiture.</p> <p>4. Same—of the discretion of the court to relieve against forfeiture. The statute giving the circuit courts discretion to relieve against a forfeited recognizance does not mean an arbitrary discretion, but a sound legal one, and if abused or improperly exercised, this court will review and correct its exercise.</p>

Writ of Error to the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding. This was a motion to set aside a sheriff’s sale of land on execution, by Robert T. Cassell, the defendant -in execution. The notice of the motion was served on John Clark, the attorney of the plaintiff in execution. The opinion of the court states the other necessary facts, and the grounds of the motion.

<p>1. Witness—credibility. When a witness testifies that he previously made an affidavit relating to matters in dispute, simply on the information of others, without stating that it was made on information, and it further appears that his memory is defective, or that he is unfair and biased in his testimony, and he is flatly contradicted in some of his most important statements, by other witnesses, the jury will be fully warranted in disregarding his testimony.</p> <p>3. Assignment—of stock of railway company. Certificates of stock in a railuTay company, unlike negotiable paper, can only be assigned by an act of the company, or in pursuance of a by-law.</p> <p>3. Same—issue of new certificate of stock. If the purchaser of stock of a railway company applies to procure a transfer of the same to him, and the directors order the transfer to him, and new certificates to be issued to him, he will become an innocent holder, if he acts in good faith, and the company w'ill be estopped to deny that the stock thus issued is valid.</p> <p>4. Same—issue of new, without taking up old, certificates of stock. If the secretary of a railway company issues new certificates of stock to one claiming to have purchased shares therein, without taking up or cancel-ling the original, the new certificates w'ill be invalid.</p> <p>5. Evidence—certificate of stock, prima facie. The certificate of stock in a railway compan)', issued by its secretary, is prima facie evidence that it was regularly issued, but this presumption may be overcome by other evidence, as, by showing that no order was passed for its issue. If the order was passed, and not entered of record, that may be shown by the holder.</p>

<p>1. Landlord's lien—on property other than crops lost by sale and removal from demised premises. The lien of :i landlord on the property of his tenant, other than on crops, is superior to all junior liens, so long as it remains on the premises occupied by the tenant, but can not prevail over prior liens, or over the rights of bona fide purchasers, after the property has been removed.</p> <p>2. The rights of a purchaser of personal property from a tenant, after its removal from the demised premises, for a valuable consideration, as, in payment of a pre-existing debt, is not affected by the fact that he knew there was rent due the landlord, and that he was about to distrain for the same.</p>

<p>This was an application, in this court, for a mandamus, as stated in the opinion.</p>