Volume 71 — Illinois Reports

<p>1.. Continuance—diligence to obtain witness. A motion for a continuance is properly refused when the application is based on the absence of a material witness, and it does not appear that the party exercised reasonable diligence to have the witness subpoenaed to appear on the day the cause was set for trial.</p> <p>2. Evidence—secondary, on, notice to produce original. There is no error in admitting as evidence copies of letters relating to a contract, upon proof that they are copies, and of a notice to the opposite party, to whom they were sent, to.produce the originals.</p>

<p>1. Statute of Frauds—effect of full payment, alone. Full payment of the purchase money for real estate verbally agreed to be conveyed, is not of itself sufficient to take the agreement out of the Statute of Frauds. There must also be possession taken of the property.</p> <p>2. Same—subsequent act, whether a recognition of agreement. Where a party owning lots authorizes another to sell the same to pay a judgment against him, and no sale can be made, and such other person sells his own lots, and pays the judgment, and the first party afterwards conveys a portion of the premises, for the expressed consideration of §1, and for assistance rendered and money advanced in settling the judgment, this will not be sufficient to take a verbal agreement to convey several lots to the party settling the judgment, out of the Statute of Frauds.</p> <p>3. Specific performance—hard and unreasonable contract will not be enforced in equity. Where a party has already received a liberal compensation for the use of his money for a short time, a contract to convey to him certain lots, for the advance made by him, will not be specifically enforced, as to do so would be inequitable, if not oppressive.</p>

<p>Appeal from the Circuit Court of Kendall county; the Hon. -Silvanus Wilcox, Judge, presiding.</p> <p>This was an action of replevin, by Seymour Potter against Joseph D. Kern, for 1800 pounds of wool. The plaintiff recovered judgment for the property, and costs.</p>

Silvanus Wilcox, Judge, presiding. This was an action, brought by John Warne against Gunner Anderson and one Paul Brusher, before a justice of the peace, and taken by appeal to the circuit court. There was no service on Brusher, the principal in. the note. The opinion of the court states the material facts of the case.

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

<p>1. Injunction—damages on dissolution. Upon the dissolution of an injunction enjoining the collection of a judgment at law, the court is in no event authorized to assess damages be3-ond ten per cent on the amount enjoined. It has no power to include the amount of the judgment in the damages assessed. A reasonable attorney’s fee may also be included.</p> <p>2. Court of Common Pleas of Elgin—no jurisdiction beyond the city. The Court of Common Pleas of the City of Elgin has no jurisdiction be3rond the limits of the city of Elgin, and an injunction restraining the collection of a judgment of a justice of the peace, recovered beyond the limits of the city, is a nullit3'.</p>

<p>1. Injunction—to restrain the collection of taxes. A bill in equity to restrain tlie collection of taxes is not looked upon with favor by courts of chancery, and it may be laid down as the settled rule of this court, that a court of equity will not take jurisdiction, except in certain specified cases.</p> <p>3. A court of equity will not interfere to restrain the collection of a tax, except where the tax is unauthorized by law, or where it is assessed upon property not subject to taxation, and even in such cases, it will not take jurisdiction except under special circumstances showing that the collection of the tax will be likely to produce irreparable injury, or cause a multiplicity of suits. When levied by officers or persons authorized by law to levy the same, the collection of the tax will not be restrained on the ground of irregularities and informalities in its levy or collection; but if the levy shows on its face that it was made for an unauthorized purpose, or for fraudulent purposes, it has been held that a court of equity may stay its collection by injunction.</p> <p>3. Taxes—interest on back taxes. The statute providing for the extension and addition of uncollected back taxes to those of the current year, authorizes the extending of interest on such back taxes, but fails to state the rate of interest. Under this statute, the county clerk is not warranted in computing the interest at ten per cent; it should be computed at six per cent.</p> <p>4. The fact that the county clerk has computed ten instead of six per cent interest on back taxes, will not justify a court of equity in enjoining the collection of the whole tax. A party seeking to enjoin on this ground must show in his bill that he has tendered all of the levy except such unauthorized interest, and offered to pay all except that, under the principle, he who seeks equity must do equity.</p> <p>5. Chanceby pbactice—dismissing bill on motion. According to the correct chancery practice, a demurrer should be filed when it is sought to have the bill dismissed; but where a motion to dismiss is treated as a demurrer, and the bill dismissed, it will be so treated in this court.</p>

Writ of Error to the County Court of Cook county; the Hon. M. E. M. Wallace, Judge, presiding. This was an application for judgment against certain lands for delinquent taxes due the city of Chicago. The county court rendered judgment, and refused to allow appeals therefrom without the owners depositing the amount of the judgment, as required by the statute. The land owners thereupon prosecuted this writ of error.

<p>1. Action—failure of consideration—counterfeit land, warrants. If a person purchases land warrants which prove to be counterfeit, and he gives notice to, and offers to return the same to his vendor in a reasonable time after he discovers them to be counterfeit, he may recover the price paid, with six per cent interest from the date of payment, as for money paid upon a consideration which has failed.</p> <p>3. Same—action of government officials does not affect right to recover. The fact that the warrants are received by the government officials as genuine, in the entry of lands, and afterwards by issuing patents for the land, will not affect the purchaser’s right of recovery, where he is after-wards required to procure other warrants in their place upon discovering that they were counterfeit.</p> <p>3. Measure op damages. In a suit to recover on a total failure of consideration, the measure of damages is, the money paid, with interest from the day of payment to the time of recovery.</p> <p>4. Warranty of genuineness of the instrument sold. It is a general, if not a uniform, rule that a person passing bank bills, or commercial paper, or making sale of a chose in action, guarantees or warrants the genuineness of the instrument, and this, whether he does so in terms, or is silent when the transfer is made.</p> <p>5. If a person sells and transfers land warrants, the law will imply a warranty that they are genuine, and an obligation to restore the purchase money to the purchaser when it is ascertained they are counterfeit and an offer is made to return them in a reasonable time.</p> <p>6. Patents—issued on counterfeit warrants. Where patents are issued on counterfeit land warrants, if the government has not the right to withdraw the same and cancel the entries, it has the right to file a bill and have them canceled, or to sue the patentee who made the entry, and recover the price of the land.</p> <p>7. Estoppel—by receiving paper as genuine. If individuals, or private corporations, receive spurious paper purporting to be issued by them from an innocent holder, and treat it as genuine, they are estopped from afterwards questioning its validity, but such is not the rule with government officials, who have no power to waive the rights of the government.</p>

William W. Farwell, Judge, presiding. This was a bill in chancery, by the appellee against the appellant, claiming the right of way occupied by the defendant over a tract of land, and charging that no steps had been taken to condemn the same. The court below dissolved the temporary injunction, and dismissed the bill, from which the complainant appealed.

<p>Writ of Error to the Superior Court of Cook county.</p> <p>This was a bill in chancery, bv Louis Brizzolara and Guiseppe Botto, against William H. Mosher, David Cole, and Charles D. Cole, to remove a cloud from the title to certain real estate. The facts of the case are stated in the opinion.</p>

This was an action of assumpsit, by George Browning, against John B. Young, upon a bill of exchange accepted by the defendant. The opinion of the court states the other necessary facts.

The first of these cases' is a Writ of Error to the Circuit Court of Rock Island county, the Hon. George W. Pleas-ants, Judge, presiding, and the second an Appeal from the Circuit Court of Mercer county, the same Judge presiding.

<p>Appeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding.</p> <p>This was a proceeding under a distress warrant issued by the appellee against the goods and chattels of Robert Fergus, George H. Fergus, John B. Fergus, and W. Scott Fergus, partners, filed . in the circuit court. The defendants were duly summoned to appear and answer unto the plaintiff on the first day of the term. On the third day, there being no appearance, the default of the defendants was taken, and the rents due were found by the court without a jury.</p>

<p>1. Chancery jurisdiction—matters of fraud and trust. Where a party enters into possession of land as mortgagee and trustee of the owner, and in fraud of the owner’s rights, while holding the land in such position, acquires tax titles on the same, a court of equity will have jurisdiction of a bill by the owner for redemption, and for an account of the rents and profits, and to.remove the adverse title so acquired. In such a case, the main issue is one of fraud in the discharge of a trust, and not the technical validity of the tax titles.</p> <p>2. Trust—title acquired by trustee in possession. Where land was left by the owner in the possession of one as tenant and agent, to look after the same and to acquire the title to a part, and such agent, after the owner’s death, procured a third person to advance $100 to secure the title for the benefit of the widow and heirs of the deceased owner, and gave him possession of the whole of the land out of which to reimburse himself, and such third person, while so in possession, suffered the lands to go to sale, and thereby acquired tax titles to the same: Held, that he became a trustee for the heirs, and that the titles so acquired by him inured to the benefit of his cestuis que trust, but that he had a lien on the lands until reimbursed for all moneys advanced by him.</p> <p>3. One in possession of land as trustee can not buy in an outstanding title, or purchase the land for taxes, and set up the title thus acquired to defeat the title of the cestui que trust, in equity.</p> <p>4. Estoppel—to claim adversely to title under which a party enters. It is a familiar rule of law, that a tenant or trustee who enters into possession of lands, can not claim adversely to the title under which he enters, without first surrendering the possession.</p> <p>5. Limitation—seven years—good faith. A tax deed acquired by a trustee while in the possession of the land, by suffering it to go to sale, can not be set up by him as color of title acquired in good faith, to defeat a bill filed by the cestui que trust for an account and for redemption.</p> <p>6. Laches—must he relied on in answer to defeat suit in equity. Where the answer to a bill in chancery does not set up and rely on the laches of the complainant in bringing suit, the defendant can not rely on such laches in this court on appeal or error.</p>

Josiah McRoberts, Judge, presiding. This was an action brought by Frank Deisch and Paul Deisch, minors, by their next friend, against Marcus Lachman, to recover damages for an injury to the plaintiff’s real estate by the construction of a drain. The suit was originally commenced in the county court, and appealed to the circuit court, where a trial was had affirming the judgment of the county court, which was for $500, in favor of the plaintiffs.

<p>1. Compromise—mistake as to amount. Where a party, after a full and careful investigation of his affairs, makes out lists of his indebtedness, and proposes to pay a certain per cent thereof, which is accepted by his creditors, and payments are made accordingly, he can not recover back from one of his creditors a part of the sum so paid him, on the ground of an alleged mistake as to his liability.</p> <p>2. Sale—when conditional one becomes absolute. Where a person purchases goods, with an agreement that for all he uses or disposes of, he shall pay at ten per cent below the invoice price, and has the privilege of returning such as are not used or disposed of by him, if he refuses, on demand, to return the goods not used or sold, to the vendor, he will thereby make the sale absolute, and he will be liable for the same, according to the contract price.</p> <p>3. Demand—sufficiency. Where a party has the right to make goods purchased by him on conditions, his own, on giving notice or by refusing to deliver the same on demand, no formal demand by the vendor will be necessary'to make the goods the property of the purchaser on his refusal to re-deliver them. It will be sufficient, if the vendor says enough to satisfy the purchaser that he wants the same, and the latter refuses to give them up.</p>

<p>Juror—competency—opinion on construction of a resolution. Where a juror was challenged as having formed an opinion as to the construction of a written resolution of the directors of an insurance company, which had been offered in evidence on the trial of a former case similar to the one on trial, and in which former case the person had served as a juror, and the court disallowed the challenge: Held, that, as the construction of the resolution was a question of law, the court did not err in holding the juror competent.</p>

<p>1. Law and fact. Whether certain facts constitute a sale or not, is a question of law, and it is proper to instruct the jury, if the facts were so and so, then there was a sale.</p> <p>2 Sale—condition may be waived. Although a sale may be dependent upon a condition, the condition may be subsequently waived by the party imposing it, and thus render the sale absolute, and this may be determined from the subsequent circumstances.</p> <p>3. Evidence—preponderance does not depend, altogether on number of the witnesses. Although the testimony may be equally balanced, so far as the number of the witnesses is concerned, that alone is not sufficient to prevent a recovery, for the surrounding circumstances to be considered may turn the balance one wa)r or the other.</p>

Edwin S. Leland, Judge, presiding. This was a bill in chancery, filed by Leonora W. Temple-ton, Ferdinand Horton and Thomas M. Woodruff, wardens, and Edward Harris, L. R. Jerome and Levi Allen, vestrymen of the Church of the Redeemer, against the town of Princeton, to restrain and enjoin the town from removing certain fences, etc., to widen Peru street, under a claim of a dedication by a former owner of the land proposed to be taken.

<p>!• Administration—right of executor to compensation for time and trouble in defending suits. An executor being a trustee for the estate he represents, can receive no compensation for his time and trouble in organizing and working up a defense to a suit against the estate, or a claim for dower, nor can he receive compensation for professional services, as an attorney at law, in defending such suit.</p> <p>2. Same—statute construed. The section of the statute relating to executors and administrators, which, after allowing commissions, provides that they shall receive “such additional allowances for costs and charges in collecting and defending the claims of the estate, and disusing of the same, as shall be reasonable," means that the executor or administrator shall be allowed only for moneys and costs actually paid by him to others in the discharge of his duty, and not for his own services as agent or attorney of the estate.</p> <p>3. Trustee—compensation. A trustee can make no profit out of his office, for the reason that he shall not be placed in any position where his interest may be opposed to his duty. Hence the rule, that one occupying the position of trustee can have no allowance or compensation for his time and trouble in the execution of the trust. This rule applies not only to trustees, strictljr so called, but to all who hold a fiduciary relation, as, executors, administrators, mortgagees, receivers, guardians, and officers, directors and trustees of corporations.</p> <p>4. Interest—as against an executor—at what rate. An executor, who was authorized by will to sell real estate and invest the proceeds for the benefit of the devisees, held monej-s so obtained, without making any investment, and without rendering the annual account required by statute, for several years. It did not appear, however, that he had put the money out at interest, or that it was put, to use in any trade or investment on his own account: Held, under the circumstances, the executor was chargeable with interest at the rate of six per cent only, with annual rests, or compounded.</p> <p>o. Ten per cent interest per annum is not a rate which courts can allow in the absence of agreement.</p>

<p>Appeal from the Superior Court of Cook county; the Hon, William A. Porter, Judge, presiding.</p> <p>This was an action of trespass, by William Wells, against James Shanley, to recover damages for an assault, beating and false imprisonment. The opinion of the court shows the material and leading facts. The plaintiff recovered §100 in the court below, and the defendant appealed.</p>

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

John G. Rogers, Judge, presiding. This was an action of trespass, by James Hamilton against John W. Scott and Daniel Leonard, for an assault and battery alleged to have been committed by the defendants upon the person of the plaintiff. Scott, alone, appealed from the judgment.

<p>Appeal from the Superior Court of Cook county; the Hon. Josiah McRoberts, Judge, presiding.</p> <p>This was an action on the case, by James F- Gettins against Moses L. Scudder. The opinion of the court states the nature and facts of the case.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>This was a bill in chancery, by Johann Lembca against Louis Warnecke, Johanna Warnecke, his wife, Conrad Warnecke and Walburga Bauscher, to redeem certain real estate from a sale under a trust deed. The opinion of the court states the grounds upon which the relief was sought. The court below allowed the redemption.</p>

Joseph E. Gary, Judge, presiding. This was an action on the case, by Aaron Cahn, Louis Wampold, Bernard Cahn, Charles Cahn and David Wallach, against the Michigan Central Eailroad Company, to recover damages for the loss of goods shipped. The opinion of the court states the necessary facts.

<p>1. Evidence—m mitigation of trespass to the person. Where the tie fendants, without any process, went to the house where the plaintiff was sleeping, searched the house, made her get out of bed and dress in their presence, and took and lodged her in a police station, on a charge of larceny, which proved to be wholly unfounded, the defendants offered to prove, by one of themselves, that when he came home in the evening his wife informed him that §200 were stolen, she having the same day discharged the plaintiff" as a servant, which the court refused to admit in mitigation of damages in trespass by the plaintiff: Held, that while the evidence might have been proper on the question of damages, yet, as the court could see that its exclusion worked no injury, it would not reverse the judgment on that ground.</p> <p>2. Instruction—abstract proposition. The giving or refusing of instructions containing mere abstract propositions of law, is not error.</p> <p>3. Same—modifying. Where a party asks an instruction which should not be given at all, but the same is modified and given, he will not be in a position to complain of the modification.</p> <p>4. Error—where substantial justice is done. Where substantial justice has been done, and the jury could not have reached any other result from the evidence, a reversal will not be given for the refusal of instructions or the rejection of testimony that might, with propriety, have been given or admitted.,</p> <p>5. Excessive damages—in trespass to the person. Where the plaintiff, a young woman aged about sixteen years, was discharged as a servant by the wife of one of the defendants, and on the same evening the wife missed $200, and informed her husband that it had been taken from the house, and the husband and another person went, after night, to the house where the plaintiff lodged, and without any warrant or process searched the house, made the plaintiff" get out of her bed and dress herself in their presence, and notwithstanding her protestations of innocence, caused her to be lodged in a police station until the next dai-, when the money was found by the defendant’s wife in her own pocket, it was held, in an action of trespass by the plaintiff, that a verdict of $775 was not excessive, there being no probable cause shown for the act, to relieve it from the imputation of malice.</p>

William A. Porter, Judge, presiding. This was an action of replevin, by Levi M. Haverstiok against Robert Fergus, George H. Fergus, John B. Fergus and W. Scott Fergus, for the recovery of a steam boiler which the plaintiff claimed to have bought. The court found for the defendants, and rendered judgment accordingly, from which the plaintiff appealed.

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

Josiah McRoberts, Judge, presiding. This was an action of debt, brought by David Henry and John A. Van Buskirk. partners, under the name of David Henry & Co., against Rosa D. Gleason, administratrix of the estate of John Gleason, deceased, upon a sealed promissory note. The execution of the note was put in issue by a plea verified by oath. A trial was had, resulting in a verdict and judgment in favor of the plaintiffs.

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

William A. Porter, Joseph E. Gary, and John A. Jameson, Judges, presiding. The opinion of the court contains a statement of the material facts of the case, except that the bill of exceptions was signed by the Hon. William A. Porter.

Henry Booth, Judge, presiding. This was an action of assumpsit, by Henry J. Rogers against William F. Durant. The opinion of the court presents the necessary leading facts of the case. The plaintiff recovered in the circuit court, and the defendant appealed.

Arthur A. Smith, Judge, presiding. This was a citation against John Curts, administrator of the estate of Horatio Curts, deceased, to show cause why he should not distribute the funds in his hands belonging to the estate, to the heirs of the said intestate. The county court, on the motion of the administrator, dismissed the citation, from which order Eliza Brooks, one of the heirs of the deceased, appealed.

Arthur A. Smith, Judge, presiding. This was an action of assumpsit, by Hubbard against Bankin, upon a promissory note, which was indorsed to the plaintiff. The defendant, in his pleas, set up that the execution of the note was procured through fraud and circumvention. The other material facts are sufficiently stated in the opinion of the court. The defendant recovered judgment for costs, and the plaintiff appealed.

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

<p>1. Contract—third person to make estimates and determine quantity and quality. Where a contract for grading and work on a railroad provided Unit the work should be done under the direction and supervision of the chief engineer of the company, and his assistants, bj-whose measurements and calculations the quantities and amounts of the several kinds of work should be determined, and whose decision should be conclusive: Held, that a measurement by an assistant engineer, estimating the embankments made by the contractors, was not conclusive upon the employers that the work was done according to the contract, and that the contractors were entitled to pay for the price thereof.</p> <p>2. Where a party voluntarily enters into a contract that a third person shall measure and estimate the work done, and pass upon its quality, with power to reject and condemn all work and materials which, in his opinion, do not conform to the spirit of the contract, he can not evade or disregard it, except for fraud clearly proved.</p> <p>• 3. Where parties agree to abide by the estimates of a third person, as to the quantity of work done, and his decision whether it is according to the contract, the estimates of such person maybe set aside for fraud; but fraud can not be presumed merely because his estimates for work done pursuant to the contract are less than the measurement of the work actually done. A mistake or error of judgment, in condemning some of the work, affords no ground to impeach his estimate.</p> <p>4. The fact that more work was done than is included in the estimate, may be shown as a circumstance tending, in some degree, to establish fraud, but it is not conclusive. The evidence must show that such party knowingly and wilfully disregarded his duty, and rejected or condemned work which he knew, or at least should have known, .fully conformed, in all respects, to the contract.</p> <p>5. Where a contract to perform certain work provides that a suspension of the work by the employer shall give the contractor no claim for damages, etc., a suspension of the same, in good faith, will not relieve the contractor from his undertaking to abide by the award of an engineer as to the quantity and quality of the work done.</p>

<p>Contract—/or the delivery of hedge plants to agent for sale on commission, construed. Where a party, having on hand a large quantity of hedge plants, contracts to furnish a certain number to an agent, to be sold on commission, without any warranty as to their quality, he will not be bound to deliver different plants than those he has.</p>

<p>1. Ikjunction—of the collection of taxes far fraudulent purposes. If a bill to restrain town officers from the collection of a tax alleges fraud in the levy of the taxes to pay a judgment fraudulently recovered against the town, this will give the court jurisdiction to grant the relief prayed.</p> <p>3. Parties defendant to hill to enjoin tax. On bill to restrain town officers from the collection of taxes fraudulently levied to pay an unauthorized judgment, the parties to whom the taxes are to go, if collected, are not necessary parties, and it is not error to dismiss them from the case, where they have not filed a cross-bill.</p>

Josiah McRoberts, Judge, presiding. This was an action of assumpsit, by John F. Smith against Charles A. Knight, William Baker, Walter F. Cobb, and James Hennersheets. The opinion of the court states the material facts and questions involved in the case.

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

Writ of Error to the Circuit Court of Peoria county; the Hon. Sabin D. Puterbaugh, Judge, presiding.

Writ of Eeeor to the Superior Court of Cook county. This was a bill in chancery, by William Smith, against Snel Wright, Patrick Rourke, the Trustees of Schools of Township 34 north, range 6 east, and James M. Adsit. The court below dismissed the bill, and the complainant prosecuted this writ of error. The defendants in error pleaded, in bar of the writ, the former decision of this eonrt.

William A. Porter, Judge, presiding. This was an action of assumpsit, by the appellees against the appellant, for the price of goods sold and delivered. A trial was had, in which the plaintiffs recovered.

<p>Evidence—acts of parties, when inconsistent with their claim. In a proceeding to foreclose a mortgage, the mortgagor set up as a defense that the notes and mortgage were given merely to secure the performance of an agreement to conve3r to the mortgagee certain property, and were to be canceled when such conveyance was made, and that he made such conveyance, and therefore the consideration of the notes had failed. On the trial it appeared, that, after said notes and mortgage were executed, the mortgagor made three different contracts with the mortgagee, at three different times, in each of which contracts he' recognized the validity of these notes, and, in part, provided for their payment; that in performing these contracts he incurred great expense, knowing, at the time, that the only reimbursement he was to get was by way of credit on these notes, and that he, on one or more occasions, stated that he was performing these contracts to pay off this mortgage: Held, that whilst these facts were not absolutely conclusive against the defense set up, they could only be overcome by clear and satisfactory proof.</p>

Arthur A. Smith, Judge, presiding. This was an action, brought by Philip Pence, against the Toledo, Peoria and Warsaw Railway Company, to recover damages for the killing of plaintiff’s cow.

William Brown, Judge, presiding. This was an action on the case, by Alonzo Cragin, administrator of the estate of Martin Standwich, deceased, to recover damages for the alleged killing of the deceased by the defendant, the Illinois Central Eailroad Company, at Dunleith, 111., on September 26, 1869. Martin Standwich, at the time of his death, was a resident of Dunleith, JoDaviess county, Illinois, and had no property in Dubuque county. Iowa, to be administered upon.

Charles H. Wood, Judge, presiding. This was a bill in chancery, filed by David K. Cremer, Joseph Cremer, William A. Chatfield, Elizabeth Cremer, Joanna Cremer, Sarah Cremer and Margaret Cremer, against Nathan G. Smith, to enjoin an ejectment suit, and to have a certain deed declared a mortgage, and for redemption therefrom.

<p>Former judgment—whether a bar to second suit. Where a former suit was brought upon the same cause of action before a justice of the peace, and a verdict returned against the plaintiff, and the docket showed a motion for a new trial and continuance, and a subsequent continuance, and then a dismissal of the suit, without showing a disposition of the motion: Held, that the former suit was no bar to the second, as no judgment was rendered on the verdict.</p>

Arthur A. Smith, Judge, presiding. This was an action, originally brought before a justice'of the peace, by John Logan against the Toledo, Peoria and Warsaw Railway Company, to recover damages for the killing of three hogs and injuring a mare of the plaintiff. The case was taken by appeal to the circuit court, where a trial was had, at the March term, 1873, resulting in a verdict and judgment of §30.25, in favor of the plaintiff. The defendant appealed.

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

William Brown, Judge, presiding. This was an action of assumpsit, by William C. Warriner against David B. Dewey, upon a bill of exchange, drawn by the defendant, in his own favor, upon T. N. McLean, and indorsed by him to W. H. Dedrick, and by him to F. C. Goss, and by the latter to the plaintiff. The plaintiff recovered in the circuit court, and the defendant appealed.

<p>1. Officers of railway company—right to compensation for services. The president and directors of a railway company, occupying the position of trustees of the funds and property of the company, are not entitled to .-my compensation for their ordinary services as such officers, unless the salary is fixed by the by-latv's or a resolution of the board, before the services are performed.</p> <p>2. If the finance committee of a railway company audits an account of the president of the company for ordinary services, and draws an order for its payment, where no compensation has been provided before the services were rendered, it will be illegal, and no recovery can be had upon the same.</p> <p>3. If the president of a railway company or a director performs extraordinary duties, not pertaining to his office, or expends money of his own while discharging the duties of his office, he will be entitled to recover for the same.</p>

<p>1. Federal court—removal of cause. If the petition and affidavit of a defendant for the removal of a cause from the State to the United States court, fails to show that the plaintiff, at the time of the commencement of the suit, was a citizen of this State, and that the defendant was a citizen of another State, there will be no error in refusing to transfer the cause. An affidavit showing such facts at the time of its filing, is clearly defective, under the act of Congress of 1867.</p> <p>3. Same—bond of petitioner for removal to United States Court, with sureties, must be filed with petition. The act of Congress of 1867, relating to the removal of causes from the State to the federal courts, requires the petitioner to file a bond, signed by himself, with the petition, and proof should be made of the sufficiency of the sureties. If the bond filed is signed by strangers only, and no proof offered of the solvency of the sureties, there will be no error in refusing to transfer the cause.</p>

<p>1. Evidence—record of suit in, court not competent as against strangers to it. In an action for slander, which consisted in charging the plaintiff with having committed a certain crime, the defendant pleaded the truth of the words spoken. On the trial, the court permitted the plaintiff to read in evidence theirecord of an indictment against him for the same crime, and of his trial and acquittal: Held, that this was error.</p> <p>2. So far as the plaintiff and the people are concerned, that record can speak anywhere and everywhere, but it is not binding upon any one not a party or privy, and if the plaintiff was guilty of the crime charged to him, the defendant had the right to make the charge and prove it under his plea of justification, notwithstanding the record of acquittal, and that record was not competent evidence against the defendant for any ¡mrpose.</p> <p>3. Slander—failure to prove plea of justification. It is error to instruct the jury, in an action for slander, that the defense of justification is odious when not sustained by the evidence, and such an instruction can not but influence the jury against the defendant.</p> <p>4. Under the statute, a defendant has a right to plead as many matters of fact, in several pleas, as he may deem necessary for his defense, and this being a right secured to him by law, it can not be odious for him to interpose a plea of justification, in a suit for slander, although it is not sustained by proof.</p> <p>5. Same—what evidence required to sustain a plea of justification. In an action for slander, in charging the plaintift' with the commission of a crime, if the defendant pleads justification, he must prove the truth of the charge beyond a reasonable doubt. The same testimony that would be required to convict the party on the criminal charge should be adduced. This rule is not changed by the act of 1867 concerning evidence.</p>

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

<p>1. Contract—mutual and dependent covenants. "Where the plaintiff purchased cattle of the defendant, to be delivered at a certain time, and to be paid for by the assignment of notes, and a mortgage securing them, executed by a third party to the plaintiff, the delivery of the cattle and the assignment and delivery of the notes and mortgage were mutual and dependent acts, to be performed simultaneously, and neither was obliged to perform until the other did, nor could either put the other in default without performing or being able to perform, and tendering performance.</p> <p>2. By such a contract, the defendant did not contract merely for the paper upon which the mortgage was written, but for the security represented thereby, and if, after the execution of the mortgage by the mortgagor, and before it was recorded, he had conveyed to an innocent purchaser without notice, a portion of the mortgaged property, and that conveyance was in full force and uncancelled at the time for the delivery of the cattle by the defendant, and the delivery of the notes and mortgage to him by the plaintiff, then the plaintiff was not in a condition to comply with his contract, and the defendant was not obliged to deliver the cattle.</p> <p>3. Instruction—measure of damages. The refusal of the court to give an instruction asked by the plaintiff as to the measure of damages only, although it may contain correct propositions of law, is not ground for reversal, when the jury find that there are no damages at all.</p>

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

<p>Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Contested election—constables. Under the law of 1873, the county court is empowered to hear and determine contests of the elections of constables, and any elector of the township or precinct may make the contest.</p> <p>3. Such contests are placed upon the same footing as cases in chancery, and the contestant may placehis contest upon any ground he chooses, and the opposite party may interpose, by answer, any matters which show7 that the contestant is not equitably entitled to the relief he seeks.</p> <p>8. Where the election of a constable is contested on the ground of a mistake in counting the votes, it is not material whether the cause of the mistake is alleged as proved or not. The question to be determined is, was there a mistake in counting the votes, and'if so, to what extent. The cause of the mistake is unimportant.</p> <p>4. Election—where a party is voted for by his surname alone. Where one Joseph Talkington was a candidate for constable, it was held that ballots cast for “Talkington” for that office, should he counted for Joseph.</p>

<p>1. », Negligence — degree of care to be exercised by plaintiff. Where a party knows that a sidewalk is defective, or dangerous, and there is another sidewalk over which he can pass, which is in good repair, and safe, if he chooses to pass over the dangerous one, he should do so in a careful and guarded manner, and if he fails to do so, but passes over it in a hasty and reckless manner, and. in so doing, is injured, a jury may very reasonably conclude that he is himself responsible for the injury.</p> <p>2. Same—a party has no right to recover who knowingly exposes himself to danger, which he could avoid. An instruction to the effect that the plaintiff' was not bound to travel on another sidewalk than the one on which he received the injury complained of, even though he knew that the one on which he was injured was out of repair, was properly refused. A party has no right to knowingly expose himself to danger, and then recover damages for an injury which he might have avoided by the use of reasonable precaution.</p> <p>3. Ebbob will not always reverse. A judgment will not be reversed on account of an instruction given which is not applicable to the case, where it appears it could do no harm, and the party objecting to it has not been prejudiced by it.</p>

<p>1. Intoxicating liquoes—act of January 13, 1873, in relation to sale of to he strictly construed. The statute in relation to the sale of intoxicating liquors, being highly penal in its character, and introducing remedies unknown to the common law, in which the person prosecuting has decided advantages over the party defending, should receive a strict construction.</p> <p>2. Same—rule of damages in suit by the wife for injury occasioned by intoxication of husband. The statute only contemplates injury sustained bjr the wife in person, property or means of support, by reason of the intoxication of her husband, and mental pain suffered by her is not an element of damages to be considered.</p> <p>3. Exemplary damages—can not be awarded, unless actual damages are proved and found. In an action by a wife for injury sustained by reason, of the sale of intoxicating liquor to her husband, she is not entitled to recover exemplary damages unless actual damage is proved and found.</p> <p>4. Same—can not be awarded as punishment. Whilst it is true that the statute allows exemplary damages to be awarded to the wife in a suit for injury occasioned by the sale of intoxicating liquor to the husband, such damages can only be by way of example, or as a warning to deter the defendant and others from similar transactions, and not by way of punishment, and aggravating circumstances must be shown.</p> <p>5. Means oe support—interpretation as used in the statute. The means of support referred to in the statute embraces all those resources from which the necessaries and comforts of life are or may be supplied, such as lands, goods, salaries, wages or other sources of income.</p> <p>6. Where the proceeds of a man’s labor in cultivating land are the only means of support of his wife, any injury by which his capacity to cultivate land is sensibly diminished, is an injury to the means of support of the wife, and if such injuiy is occasioned by the sale of intoxicating liquor to the husband, the seller will be liable to the wife for such, injury to her means of support.</p> <p>7. But it is necessary to prove that the injury to the husband did incapacitate him from contributing as usual to the support of the wife.</p>

<p>1. Venue—when application for change of, should he made. The statement in a petition for a change of venue that the defendant did not know of tlie commencement of the suit in time to have made the application at the first term of the court, when, from the whole record, it is apparent that the reason he did not know of it was, that he had absconded from the State to avoid legal process in relation to the same subject matter on which the suit arose, is not sufficient to obviate the necessity of his showing that the cause for the change asked for, has arisen or come to his knowledge subsequently to that term.</p> <p>2. An application for a change of venue at the second term of bourt after suit was brought, which commenced on the 5th day of August, was based upon the prejudice of the inhabitants of the count)’, and stated that the defendant did not know that such prejudice existed to the extent it did, until after the 25th of July: Held, that this statement implies that defendant knew, previous to July 2oth, that the inhabitants were prejudiced against him, and that he should have applied to the judge at chambers, for the change, so as to save trouble and expense on the part of the plaintiff in preparing for trial.</p> <p>8. Pleading—what the plea of not guilty in an action for seduction puts in issue. The plea of not guilty puts in issue, both the fact of seduction, and tlie fact that the person seduced was the servant of the plaintiff.</p> <p>4. Costs. It is discretionary with the court to certify the number of witnesses a party is entitled to have costs taxed for, and even if the court should abuse its discretion in this respect, it would be no ground for re. versing the judgment for damages.</p> <p>5. Evidence—pecuniary circumstances of parties. In an action by a father for debauching his infant daughter and getting her with child, it is competent to show the pecuniary circumstances and position in society of(boih)plaintitt‘(and defendant^</p> <p>6. But this is not for the purpose of ascertaining what amount of damages the defendant is able to pay, but with a view of ascertaining the extent of the plaintiff’s injury, perhaps fixing a standard of exemplary' damages.</p> <p>7. Seduction—evidence of an abortion proper in an action for. The father has a right to bring either an action in trespass, or case, for the seduction and getting with child his infant daughter, and, in an action on the ease, where the declaration, in addition to the seduction and getting with child, charges that the defendant produced or attempted to produce an abortion on the plaintiff's daughter whom he had so got with child, it is competent to introduce evidence to prove such fact.</p> <p>8. If the action were in trespass, it tvould be competent for the plaintiff to charge the seduction in one count, and the abortion in another, and if they were both charged in one count, without averments connecting the abortion with the original trespass, it would be demurrable for duplicity; but if the defendant, without demurring, took issue, he could not exclude evidence of the abortion.</p> <p>9. Same—consent of infant daughter of plaintiff. The infant daughter of a plaintiff is incapable of consenting to carnal intercourse, and she is equally- incapable, without regard to the criminal law, of consenting to an abortion.</p> <p>10. Same—general cha,racier for chastity of the party seduced is involved, in a suit for. The general character of the daughter for chastity- is involved in the issue, where the father sues for her seduction and consequent pregnancy, and the testimony- of others than herself may be introduced to show their own criminal intercourse with her, and the time and place; but, notwithstanding such evidence, if the jury- are satisfied from the whole evidence that the defendant is the father of the child, their verdict must be for the plaintiff, though, perhaps, for diminished damages.</p> <p>11. But evidence of particular acts of immorality or indecorum, as well as of general bad character of the party seduced, must be confined to what occurred previously to the defendant’s misconduct.</p> <p>12. Same —father may maintain suit for infant daughter though she does not reside at home. The rule that required actual residence of the daughter with her father at the time of seduction, to enable him to maintain a suit therefor, does not prevail in this country. It is only necessary- to show that the parent has the legal right, at the time, to command the services of the daughter, and very slight evidence of loss will suffice.</p> <p>13. If the father, by a valid contract, has divested himself of all lawful control over the services of his daughter, he can not maintain an action against one for getting her with child, but if the contract is such that the father has the legal right, at any time, to control or command her services, then, notwithstanding, she may not reside in his familj', and he does not exercise the right of control, he may maintain the action.</p> <p>14. Statute of frauds—verbal contract to support and maintain infant child until of age for its services. If the father of an infant daughter makes a verbal contract with another to support and maintain her until she is of age, in consideration of her services, the contract is valid, and not within the Statute of Frauds, and the father can not maintain an ■ action for the debauching and getting with child such daughter.</p> <p>15. Instructions—questions of law should not be left to the jury. Where it appeared that there was a verbal contract between the plaintiff" and another, in regard to the services of the plaintiff's daughter, the question as to what the contract was, was one of fact, for the jury; but the question as to what the legal effect of it was, was a question of-law, and it was error to submit both these questions to the determination of the jury by instruction.</p> <p>16. Mitigation of damages—offer of marriage by a defendant in a suit for seduction, not competent evidence. An offer of marriage made by the defendant, in a suit by the father of an infant daughter, for debauching her and getting her with child, is not proper to be considered- in mitigation of damages.</p>

John G. Rogers, Judge, presiding. This was a suit, brought by The City of Chicago against the appellants, to recover a penalty for a violation of a city ordinance. The ordinance, so far as applicable to the case, is given in the opinion of the court. The appellants were wholesale merchants in the city of Chicago, and the owners of twelve two-horse wagons and teams, driven by drivers employed by appellants by the month, at fixed wages.

<p>Appeal from the Circuit Court of Coles county; the Hon. Oliver L. Davis, Judge, presiding.</p> <p>This tvas an action brought by Sarah Addis against Maurice Emory, to recover damages on account of the death of her husband, caused by intoxication produced by liquor sold to him by Emory. The plaintiff recovered $2000 in the court below, and the defendant appealed. The facts are stated in the opinion.</p>

<p>1. Bastardy—appeal does not lie to the circuit court. The act of 1871-2 to increase the jurisdiction of county courts, limits appeals and writs of error which are thereby allowed, to cases under that act; and jurisdiction in bastardy cases not being conferred by that act, but by another, which gives no right of appeal, such cases can not be taken by appeal from the county court to the circuit court.</p> <p>2. Jurisdiction—can not be conferred by consent on courts in which the law does not rest it. The fact that a defendant in a bastardy proceeding takes an appeal from the county court to the circuit court, can not confer jurisdiction on that court. Consent of parties can not confer jurisdiction upon a court in which the law has not vested it.</p> <p>3. Same—effect of reversal of judgment for want of, in the circuit court, on appeal from county court. Where a judgment of the circuit court, on an appeal from the county court, is reversed, for want of jurisdiction in the circuit court to entertain the appeal, the judgment of the county court is left in force.</p>

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

<p>Writ of Error to the Circuit Court of Champaign county; the Hon. S. L. Richmond, Judge, presiding.</p>

<p>1. Circuit judge—holding court in another circuit. Where the record shows that the court was held by the judge of another circuit, and nothing is shown to the contrary, it will be presumed that he was presiding by request of the judge of the circuit where the court was held.</p> <p>2. Christian name-—suit brought in one. and judgment rendered in another. Where a suit ivas instituted by a plaintiff by one Christian name, and judgment was rendered before the justice of the peace in his favor by another Christian name, aud no objection on that account was made before the justice, and it appears, from the record, that he was as well known by the one name as the other, the objection was properly overruled in the circuit court.</p> <p>3. Statute of Frauds—promise to pay the debt of another. Where a tenant executed to his landlord a chattel mortgage on the crop, to secure his rent, and then formed a partnership with the plaintiff, whereby plaintiff was to help raise the crop, and to have one-fourth thereof, when raised, which plaintiff did, and it appeared that the tenant liad other creditors who might cause trouble if any question was raised about the chattel mortgage, and the landlord agreed with the plaintiff that, if he, plaintiff, would not interfere with the landlord’s claim under the chattel mortgage, he, the landlord, would pay plaintiff for his work: Held, that there was a good consideration for the promise to pay the plaintiff, and that it was not within the Statute of Frauds and Perjuries.</p> <p>4. Minor—effect of suit by, for his wages, without objection by his father. Where a minor worked for the defendant, and, after lie bécame of age, brought suit for his wages, and the father was called as a witness on behalf of his son, and made no claim to the wages, and spoke of the transaction as his son’s, the presumption is, that he had emancipated his son at the time the services were rendered, and a recovery, under these circumstances, by the son, would be a bar to any claim by the father for the son’s wages.</p>

<p>Wills—construction of a devise of real estate to one, and to the heirs of her body, and to their heirs. A testator left surviving him a daughter, who was an only child. His will contained this clause: “I will, give, bequeath and devise unto my daughter, Maiy Gamble, and to the heirs of her body, and to their heirs and assigns, all of my real estate, of whatever description and wherever situated; and in case the said Mary Gamble shall die without issue, then the real estate hereby willed, bequeathed and devised unto her, shall go to and descend unto my brothers and sisters, and to their heirs and assigns, in equal proportionsHeld, that Mary Gamble took, under this devise, a simple life estate, with a remainder over to the heirs of her body, in fee simple absolute, and that the limitation to her heirs was valid and binding.</p>

<p>1. Master and servant—duty of former to provide safe machinery. It is the duty of a railroad company to furnish suitable and safe machinery, and the law imposes upon them a high decree of care in this regard.</p> <p>3. The machinery and cars furnished by railroad companies, for use, ought- not to be so unskillfully constructed that the slightest indiscretion on the part of the operatives would prove fatal; and where they are so constructed, it is such negligence as will render them liable for damages occasioned thereby to an employee who is ignorant of such unskillful construction.</p>

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

<p>1. Practice— affidavit showing Tinture of demand and amount due—effect of when filed with declaration. The only purpose subserved by the affidavit of the plaintiff showing the nature of his demand, and the amount due, filed with his declaration, is, to entitle him to a judgment, as in case of default, unless the defendant shall file an affidavit of merits with his plea; and in case of such default, the affidavit so filed with the declaration may be taken as prima facie evidence of the amount due, but even this is discretionary with the court.</p> <p>3. Whether the plaintiff will file such an affidavit, is entire]}' optional with himself, and if he does not do so; or files an insufficient one, the only effect such failure can have upon the suit is, that the defendant is entitled to plead without accompanying his plea with an affidavit of merits.</p> <p>3. But, if proper service is had, and the declaration is filed in apt time, the suit stands for trial, and the defendant must enter his appearance and plead, or a judgment may be taken against him by default.</p> <p>4. Presumption in favor of regularity of judgment. Where the court has jurisdiction of the parties and of the subject matter of litigation, every presumption of law is in favor of the regularity of the judgment.</p> <p>5. Evidence — must be preserved by bill of exceptions. In cases at law, evidence can only be preserved in the record by bill of exceptions, and the correctness of the finding of the court below will not be examined in the Supreme Court unless all the evidence upon which the court below acted is thus preserved, and the same principle applies to circuit courts in reviewing the decisions of the county court,</p> <p>6. Appeal from county court to circuit court—remanding order. When a judgment of the county court is affirmed by the circuit court, it is not necessary to remand the cause to the county court for further action. The order affirming the judgment is all that is necessary, and upon filing a copy of that order with the clerk of the county court, execution will issue on the judgment, as rendered by that court, without any further order.</p>

<p>1. Married."women.—separate property—what proof necessary to protect it, under act of 1861, against husband's creditors. At common law, the husband is presumed to own all the property in the possession of the wife while they are living together, and the act of 1861 was not designed to overcome this presumption. If the wife claims the benefit of the act, she must bring herself within its provisions by proof. She holds the affirmative of the issue, and must prove it.</p> <p>3. It is not sufficient for the wife to prove that she purchased the property from a person other than her husband, during coverture, to enable her to hold it as against her husband’s creditors, under the act of 1861, but she must also show, by evidence, that she obtained the consideration ■which she paid for it from a source other than her husband, in good faith.</p>

<p>1. Mechanic’s men—tow in relation to, does not apply to work done for the State. The Mechanic’s Lien Law refers to individuals and private corporations, and does not apply to labor done or materials furnished for the State, or general or local public, or even for those who hold property of the State in trust, and are improving it for and under the direction of the State.</p> <p>3. The fact that a State institution is managed by a board of trustees, who may sue and be sued, does not authorize the special and restricted remedy against the property of the State under their control, provided by the Mechanic’s Lien Law against individuals and private corporations, especially where the trustees are expressly prohibited from binding the State bejrond the amount appropriated for the use of the institution.</p> <p>8. Same—work only partly done. A workman who undertakes to perform an entire contract can not quit when he chooses, without cause, and enforce a lien for such portion of the work as he may have performed. Nor can he enforce a lien for each week’s wages. He has no power to split up an entire demand, and maintain several suits, and enforce several liens.</p> <p>4. Pleading—petition for a mechanic's lien by sub-contractor. A petition to enforce a lien by a sub-contractor, which fails to set out the terms of the contract with the principal contractor, and that the sub-contract was within the power of the principal contractor to make, so as to bind the owner of the property, or that there was a sufficient fund due the principal contractor to pay the petitioner, or that he had performed his contract, is substantially defective.</p> <p>5. The Illinois Industrial University, is a State institution, and not subject to tlio Mechanic’s Lien Law.</p>

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

<p>1. Taxation by private corporations—and herein, what is a private corporation. It was not in the power of the legislature, under the constitution of 1848, to confer upon private persons or private corporations the authority to levy and collect taxes or special assessments on real estate.</p> <p>2. Where the object of the creation of a corporation is not declared in the law creating it, but it appears that it was to advance the private interests of land-owners in the district incorporated, and none others are embraced in its provisions, although it may incidentally enhance the general prosperity of the whole community, it is none the less a private corpora tion.</p> <p>3. By an act of the legislature, certain persons were appointed a board of directors to locate and superintend the construction of a levee on the Wabash river, within certain townships, and were made capable to contract, sue and be sued, by a given name and style. The act further provided that all the owners of real estate within the townships named, at certain stated periods, should elect three resident freeholders of the ter ritory, to succeed the board appointed by the act, and that the board should appoint two freeholders to assess the benefit such improvement would be to each tract or farm, and makes such assessment a lien upon the real estate until paid, and provides for proceedings by summons, in the nature of a scire facias, against each delinquent, and a judgment for the sale of the land to pay the assessment and costs: Held, that the board created by this act is a private corporation, and that the assessments made under the power therein contained are void, as being in conflict with section 5 of the 9th article of the constitution of 1848.</p> <p>4. Such a law can not be maintained on the principle that, where the public exigency requires it, the General Assembly may establish districts by the union of two or more municipal corporations, and place the government entirely under the control of the corporate authorities of such' districts, bestowing upon .them, amongst others, the taxing power, for the reason that that principle, though recognized by the courts, rests upon the distinct ground that the people subjected to the burden must consent to the formation of such district with the attributes of municipalities, whilst this law affords them no opportunity to express either assent or dissent.</p>

<p>1. Homestead—embraces fhe whole lot of ground on which the dwelling house is, if it does not exceed the limited value. The homestead occupant may claim as his homestead the whole lot of ground upon which his dwelling house is situated, if it does not exceed the limited value, although his other improvements may be in part or in whole upon another lot of ground.</p> <p>3. A quarter quarter section is a legal subdivision of land, and, as such, is marked as a lot of ground.</p> <p>3. Same—release of, in one lot of ground, no bar to claim, of in another. The widow of one who died seized of a quarter section of land, on one quarter of which was his dwelling house, is not estopped from claiming homestead in the lot on which the dwelling house is situated, by executing a release of homestead and dower in the balance of the land. The operation of the deed of release is confined to the land described therein.</p>

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

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

<p>1. Specific performance—can not he claimed as a matter of right. A specific performance can not be claimed as a matter of right, but rests in the sound discretion of the court, and must be sustained bjr satisfactory-proof.</p> <p>2. Same—of parol contract to sell real estate, made by agent of the owner. A parol contract to sell real estate, made by an authorized agent, where acts are done by the purchaser sufficient to take it out of the operation of the Statute of Frauds and Perjuries, will, generally, be enforced in a court of equity.</p> <p>3. The owner of real estate authorized his son, as he claimed, to sell it at a certain price, and the son sold it at that price, by a parol contract, and received a part of the purchase money down, and gave credit for the deferred payments, all of which were subsequently made to him. The purchaser took possession and broke and fenced the land. The owner executed a deed to the purchaser, but never delivered it. He and the purchaser had frequent conversations relating to the land, and the purchase thereof, in which he neither denied nor repudiated the sale, or the authority of his son to make it, but claimed that his son had cheated him, and said that he would do what was right, but that he did not want to do anything until his son did something: Held, that a specific performance ought to be decreed, and that the owner should convey the land to the purchaser.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Clay county; the Hon. J. C. Allen, Judge, presiding.</p>

<p>1. Master’s report op sale—need not set out the notice of sale. It is sufficient for the master in chancery, in his report of a sale made under a decree of court, to state that he gave the notice required by the decree, without stating what that notice was.</p> <p>2. Master’s sale—certificate of purchase, or deed. It is the duty of the master in chancery, when he makes a sale of real estate under a decree of court, for the payment of money, instead of executing a deed, to give a certificate of purchase, showing when the purchaser will be entitled to a deed.</p> <p>3. Where a decree for the sale of real estate in default of the payment of money, directs the master in chancery to make the sale and execute a deed, the proper construction of the decree is, that the deed is not to he made until after the expiration of the period allowed bylaw within which redemption may be effected.</p> <p>4. In such case, the master has no authority to make a deed at the date of sale, and if he does so, and reports that fact to the court, that part of his report should not be approved, but the execution of the deed, instead of a certificate of purchase, in no manner affects the regularity of the sale, and it is error to set the sale aside on that account.</p>

<p>1. Right of way—assessment of damages, on condemnation of land. Where a' petition is filed to condemn land for the right of way, and there is no cross-petition to include other land with it, it is improper to permit evidence to be introduced in regard to land adjoining that described in the petition, and belonging to the same owner.</p> <p>2. The fact that, by the construction of a railroad through a man’s farm, a part of it is cut off, ami he has to travel a greater distance to get to the part so cut off, ns well as the danger to which the owner and his famih', and stock, are exposed, in crossing the track from one part of the farm, to the other, are elements of damage, under the statute, for the consideration of the jury, in a proceeding to condemn land for the right of way.</p> <p>3. Same—compensation, Juno ascertained. It is not improper to instruct the jury, in a proceeding to condemn land for the right, of way, under - the act of 1872, to fix the compensation from the evidence, for, even if the jury should examine the land in person, the facts derived from such examination would be a part of the evidence from which to make a verdiet, and such an instruction could nut mislead them.</p> <p>4. Error will rot always reverse—admission of improper evidence. The admission of improper evidence can not he regarded as a cause for a reversal, unless the party against whom It was admitted has been injured or prejudiced by it.</p>

<p>1. Expert testimony. The question whether a sidewalk made of rough plank, laid on stringers, is properly constructed or not, is not a question for an expert altogether, only to be put to and answered by one who has a reputation for skill in such work, and in the handling of tools, and quality and adaptation of materials.</p> <p>2. Any man of common sense and ordinary observation and experience, can pronounce as satisfactorily, upon such a question as the most accomplished mechanic, and it is error to exclude such testimony from the jury.</p> <p>3. Instructions—erroneous, where there is no evidence on which to found them. An instruction that the jury should find in a particular way, if they believe certain specified facts, is erroneous, if there is a want of evidence of the existence of any material part of such specified facts.</p> <p>4. Municipal corporations — notice of the condition of its sidewalks defectively constructed. Where the injury complained of is occasioned by reason of the negligent and improper manner of constructing a sidewalk, no notice of its condition is necessaiy to make the town liable for the injury, as it is the duty of the town to take notice of the condition of its own sidewalks when they are so defectively hnd improperly constructed.</p>

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

<p>1. Amendment after plea, in abatement for variance between writ and declaration. A plea in abatement for a variance between the writ and declaration is effectually disposed of by an amendment, made by leave of court, which removes the objection, and makes the writ and declaration conform to each other.</p> <p>2. Same—the Practice Act of 1872 should be liberally construed. The Practice Act of 1872 should be liberally construed, so that mere technical mistakes shall not operate to delay the administration of justice, and there is no reason why, under,that act, a plaintiff' may not, on his own motion, be permitted to amend the summons to conform to the declaratioh where there is a variance and a plea in abatement filed setting up that fact.</p> <p>3. Judgment by nil (licit. Where there was a plea in abatement for variance between the writ and declaration, and, at the same term of court, the writ was, by leave of court, on motion of the plaintiff, amended so as to conform to the declaration, and a rule on the defendant to plead ten days before the next term of the court, and at the next term a replication was, by inadvertence, filed to the .plea in abatement, but, by leave of court, withdrawn before issue was joined on it, and the defendant having failed to plead as he was ruled to do, it was proper to render judgment against him as upon nil dicit, notwithstanding the plea in abatement was not formally disposed of.</p>

<p>1. Vendor’s lien—may be enforced for money necessarily expended by ■vendor for improvements, which, by the terms of sale, the vendee was to make. Where a party sells an interest in real estate to another, in consideration of the undertaking by the vendee to make certain improvements, and the vendee places in the hands of the vendor funds, to be applied toward paying for such improvements, and the necessary cost of such improvements exceeds the amount furnished by the vendee, and the vendor pays it, the amount of such excess may be regarded as unpaid purchase money, for which the vendor may enforce a lien, by sale of the interest of the vendee in the property.</p> <p>2. Same—proof of the value of the improvements. Where a vendor seeks to enforce a lien for the cost of improvements paid by him, which, by the terms of sale, the vendee was to pay, proof of the amount so paid, without am- evidence as to the value of the improvements, is not sufficient, when tlio proof made b}r the vendee is, that the whole cost of making the improvements which vendee should have made ought to have been much less than the amount paid by the vendor. "Under such circumstances the vendor should not only show what lie paid, but he should make some proof in regard to the value of the improvements for which lie paid.</p> <p>3. Same—rents and profits. In a proceeding to enforce a vendor’s lien, where the vendor has had the possession and control of the property, the vendee should be credited with a share of whatever the vendor may have received, in respect to the use and enjoyment of the property, proportioned to the amount he may have paid on his purchase..</p>

<p>1. Estoppel—-fraud necessary to an equitable estoppel. The doctrine of equitable estoppel is based upon a fraudulent purpose and a fraudulent result, and if the element of fraud is wanting, there can be no estoppel.</p> <p>3. There must be deception, and change of conduct in consequence, in order to estop a party from showing the truth.</p> <p>3. Same—infants receiving money after tliey become of age, for land. A party died intestate, but, prior thereto, requested that certain of his children should have specific tracts of land belonging to him, and .that others should have certain specified sums of money, in lieu of their interest therein, and all who were of age carried out the request by coiweying and receiving money respectively, and the money specified was paid to the guardian of the younger children, who, upon coming of age, received it from their guardian, but there was no evidence that, when they so received it, they were informed, or knew, that it was intended to be in lieu of their interest in the land of their father. After they had received the money, deeds were demanded of them for tlieir interest in the land, which they refused to execute, and still retained the money, and made no oiler to return it: Held, that there was no ratification of the arrangement proposed by their father, aud that they were not estopped from claiming their interest in the land.</p>

<p>1. Public schools. The free schools of the State are public institutions, and in their management and control the law contemplates that they should be so managed that all children within the district, between the ages of six and twenty-one years, regardless of race or color, shall have equal and the same right to participate in the benefits to be derived therefrom.</p> <p>3. Same—-powers of directors in the management and control. While the directors very properly have large and discretionary powers in regard to the management and control of schools, in order to increase their usefulness, tlie)' have no power to make class distinctions, nor can they discriminate between scholars on account of their color, race, or social position.</p> <p>3. Same—colored children. The directors have no power to keep and maintain a separate school solely to instruct three or four colored children of the district, when they can be accommodated at the school house with the other scholars of the district.</p> <p>4. And if the directors attempt to do so, any tax-payer of the district has a right to interfere to prevent the public funds from being used in such unauthorized manner.</p>

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

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

<p>T. Parol girt—title to the proceeds of sale by the donee, with the permission of the donor. Whilst it is true that a parol gift of a chattel is incomplete without delivery, yet where the donor permits the donee to sell the gift, and the donee, with the proceeds of such sale, purchases from the donor other property, the title to such property is perfect.</p> <p>2. So, where one gave to his minor step son, who was living with him as a member of his family, a calf, and permitted him to sell it, and then sold a horse to him, and took the proceeds of the sale of the calf in payment therefor, it was held, that the title to the horse passed by'purchase, and not by gift, and was perfect in the son.</p> <p>3. Error—will not always reverse. Even if it appears that some improper testimony lias been admitted, still, if the legitimate evidence in the case fully sustains the verdict, and it is apparent that, upon another trial, with the improper evidence excluded, the result would necessarily be the same, the judgment will not be reversed.</p>

<p>1. Misjoinder of plaintiffs. Where a written contract was executed in the name of one of the plaintiffs by another of the plaintiffs, and the proof was, that, although in form it was in the name of the one, it was, in fact, executed for all the plaintiff's, and money was paid by the plaintiffs on the contract to the defendant, and the defendant made default in performing his part of the contract, it was held, that, notwithstanding the form of the contract, the plaintiffs were properly joined in a general indebitatus assumpsit count to recover the money advanced.</p> <p>2. Contract—of readiness and willingness to perform. Where a party is, by the terms of a contract, required to pay money upon performance by the other party, and he is ready and willing to give his check for the money, and he has the money in the bank, and that has been the usual mode of making payments of money between the parties, and the party who is to receive the money makes no objection to the check, these facts show a sufficient readiness and willingness to comply with the contract by the one party to entitle him to recover for non-performance by the other.</p> <p>3. Instruction. Even if the court instructs the jury as to the amount of their verdict, in such a way as ignores a plea and claim of set-off, yet, if it appears, from the evidence, that the finding of the jury was not too much, even if they had allowed all the set-off proved, the instruction .will form no ground of error.</p>

<p>1. Trespass for an assault, etc.—recovery must be on the ground alleged. In an action of trespass, where the injury complained of was an assault by the defendant upon the plaintiff, and having sexual intercourse with her, against her will, and the defense interposed is, that the intercourse was with her consent, and the evidence shows that the plaintiff and defendant had such intercourse on frequent occasions, and that the result was the birth of a child, it is proper to instruct the jury that the plaintiff is not entitled to recover for sexual commerce with the defendant, or its consequences, if had with her consent.</p> <p>2. Instruction should apply to the case. In such case, it is improper to define, in an instruction, the crime of rape, and instruct the jury to find specially whether the defendant did or did not commit a rape on the plaintiff. The result of such practice is necessarily to confuse and mislead the jury.</p> <p>3. Error will not always reverse—improper instructions. A new trial will not be granted merely on the ground that improper instructions have been given, when it appears that substantiaLjjistige has been done.</p>

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

<p>1. Contract—when entire, it must be fully performed. To recover for wages under a contract to work for a specified length of time, a plaintiff must show full performance on his part, or a release by his employer, or some justifiable cause for leaving.</p> <p>2. Same—what is an abandonment. Where a plaintiff, who had engaged to work for a certain length of time for the defendant, got the consent of his employer, before his time expired, to absent himself for a short time, and was absent a few days longer than he expected to be, but held himself subject to his employer’s control, and returned and worked for him again until after the expiration of the time for which he engaged, it was held that there was no abandonment of the contract, and that plaintiff was entitled to recover on it.</p>

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

<p>Chancery—will not afford relief against a judgment at law obtained through the negligence of defendant. A bill in chancer}--, filed for relief against a judgment at law, alleged that, when the summons in the suit at law was served on the complainant, he at once employed a reputable attorney, but. who was pecuniarily irresponsible, and exhibited to him a receipt against the claim upon which the suit at law was brought; that the attorney told him the receipt was a good defense to the action, and that he, the attorney, would attend to it, and that complainant need not give himself any further trouble about it, and that complainant heard no more of the suit until the execution was served upon him. The bill also showed a complete defense to the suit, at law: Meld, that the negligence of the attorney was the negligence of the party, and that he was guilty of such laches that he could not invoke the aid of a court of equity to relieve him against the judgment.</p>

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

<p>Promissory note—proof of the execution of.; when put in issue. It is not essential, when the execution of a note is put in issue, to prove its execution by an eye-witness.</p> <p>3. By delivering a promissory note, with his signature to it, a party' adopts the signature, and is bound by it, whether written by himself or not, and proof of such a state of facts is sufficient foundation for the introduction of the note in evidence, when the execution of it has been put in issue by plea verified by affidavit.</p> <p>3. Signature—comparison of, with another, when permitted. Whilst the genuineness of a signature can not be proved by comparing it with another signature, admitted to be genuine, yet, where a witness testified that he was acquainted with the defendant’s handwriting when young; that he had been absent from him for eighteen years, but had seen him write during the last four years, and that he would not take the signature in dispute to be his, it was proper, on cross-examination, for the purpose of testing the accuracy of the witness’ observation and memory, to show him the signature to the plea putting the execution of the note in issue, about the genuineness of which there was no question, and ask him whether it was the genuine signature of the defendant. This would not be proving a signature, but would enable the witness to determine how-reliable and accurate was the impression of the defendant’s signature, as fixed in his memory, with a view to confirming or modifying his previously expressed opinion in regard to the signature in controvers3r.</p>

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

<p>Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Cabbiebs of stock—negligence. Where live hogs are shipped by railroad, it is the duty of the railroad company to apply water to them when heated and in danger of dying from the want of such an application ; and it is gross negligence on the part of the company not to do so.</p> <p>2. If water is scarce on the line of a railroad, so that it can not be provided for the purpose of applying to live hogs shipped in its cars when necessary, it is the duty of the company to inform shippers of the fact before they ship; and if such information is withheld, and hogs are shipped and die on the route for want of water, the company will be liable.</p> <p>3. Where live hogs are shipped in railroad cars, and are doing well, and not suffering for water at a given point or station on the route, it is not negligence on the part of the shippers not to water them at that point or station, in the absence of information that water can not be had at tire next station; aucl if it is a fact that water is scarce at the next station, it is the duty of the company to inform the shippers of the fact, and it is gross negligence not to give such information.</p> <p>4. It is prima facie evidence of negligence for a railroad company to permit its pump at a station to be out of repair, so that water can not be provided for live hogs on its train, and it is for the company to explain why the pump is so out of repair, and show that it is not by their negligence.</p> <p>5. Variance—between the declaA'ation and evidence. The averment of a declaration in a suit for the value of hogs, which were shipped on defendant’s railroad, and died through the fault of defendant, was, that the train was stopped and permitted to stand for a long space of time in a piece of timber, where the air could not circulate. The evidence showed that the train did stop in a piece of timber, as averred, but it further showed that it was in a cut on the road as well as in the timber: 3eld, that there was no variance.</p>

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

<p>1. Rescission oe contract—when complete rescission rendered impossible by act of defrauding party, apa/rtial rescission may be decreed. Where a party, by false and fraudulent representations as to the character and quality of his land, induces another to exchange other lands for it, and then conveys a portion of the land thus obtained to an innocent purchaser, so that it is out of Ills power to re-convey it, and thus wholly rescind the contract, it is competent for a court of equity to decree a partial rescission, and to require the party in fault to pay to the oilier, in money, the price at which the land taken by him ivas estimated in the exchange, and take a re-conveyance of the same, and to make the amount of money so decreed to be paid a lien upon that portion of the land conveyed to the defrauding party which he still holds.</p> <p>2. Same—of the diligence required, when asked for on the ground of fraud. Where a contract Avas made in this State for the exchange of lands in this State for land in Missouri, in December, 1868, and, in the following spring, the owner of the Illinois land learned that iands in that part of Missouri where the land taken by him in exchange was situated were not of much value, but learned nothing about his land in particular until in February, 1870, when he went to see it, and, on the •</p> <p>28th of February, 1870, filed a bill to rescind the contract, on the ground of false and fraudulent representations as to the quality and character of the Missouri land: Held, that there was reasonable diligence used for the discovery of the fraud, and that suit was brought within a reasonable time after its discovery.</p> <p>3. Chancery practice—iohat relief may be granted under a general prayer. Where a bill contains a prayer for general relief, and also a prayer for specific relief, the complainant may have other specific relief, provided it be consistent with the case made by the bill and with the proof, although it differs from that specifically prayed for.</p> <p>4. Fraudulent representations—effect of, on principal, when made by his agent in the transaction. Where the complainant was, by the false and fraudulent representations of one of the defendants, induced to make an exchange of lands, and, in doing so, conveyed his lands to the other defendants, and received a deed from them for the land he was to get in the trade, it was held, that the other defendants having received the deed and reaped the benefits of the fraudulent representation made by their agent, they are liable, and, they having put it out of their power to ro-convey, must respond in damages.</p>

<p>1. Error will not always reverse—excluding evidence. Even if the court commits an error in refusing to permit a question to he answered by a witness, yet, if it appears that the witness gave all the evidence that was sought to he elicited by the question, which in any view of the case was material, the judgment will not be reversed.</p> <p>2. Costs—defective abstract. Where the appellant omits material parts of the evidence from his abstract, and thus imposes the necessity upon the appellee of filing an additional abstract, and the judgment is affirmed, the appellant must pay for the additional abstract, and it will be taxed as costs against him.</p>

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

<p>Writ of Error to the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Horatio M. Vaxdkveer, Judge, presiding.-</p>

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

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

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

<p>1. Chancery—referring issues of fact to a jury is discretionary with the court. The granting or refusing a motion to refer issues of fact on a bill to foreclose a mortgage, is a matter in the discretion of the court.</p> <p>3. Same—effect of amending bill by consent and waiving oath to answer, after sworn answer filed. Where the defendant in a chancery suit, after filing his answer under oath, stipulated that the complainant might amend his bill, and waive the oath to the answer of defendant, and complainant made the amendment under this stipulation, and the defendant filed an answer not sworn to, it was not necessary for the complainant to overcome the sworn answer by evidence equal to two witnesses.</p> <p>3. Foreclosure of mortgage—note and mortgage must be produced or their loss or destruction proved. It is error for a court to render a decree of foreclosure of a mortgage, without the note and mortgage are produced or their non-production accounted for, notwithstanding the answer of the defendant may admit their execution.</p> <p>4. Secondary evidence of the contents of the note and mortgage would not be admissible without first making proof of the loss or destruction of the originals.</p>

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

<p>Appeal from the Circuit Court of Macon county; the Hon. Aethue J. Galla ghee, Judge, presiding.</p>

<p>1. Criminal law—power of the court where prisoner pleads guilty to an indictment for murder. The only limitation placed upon the power of the court by the act of 1867, in relation to capital punishment, is, that, it shall sentence no person convicted of murder to death, unless the jury have so returned, as a part of their verdict; and the 18Ud section of the Oripiinal Code of 1845 not being inconsistent with the act of 1867, is not repealed by it; and under tills, the last named section, the court has the power, when a person indicted for murder pleads guilty, to sentence him to imprisonment in the penitentiary for life.</p> <p>2. The act of 1869, amendatory of the law of 1867, so far as it applies to the power of the court to sentence a prisoner to imprisonment in the penitentiary upon a plea of guilty to au indictment for murder, conferred no new power. It simply re-enacted the law as'it then stood.</p>

Arthur J. Gallagher, Judge, presiding. This was an action on the case, brought by appellee against appellant, to recover for injuries received from being run against by a switch engine in appellant’s yard, at Decatur, a short distance north of the crossing of the Toledo, Wabash and Western railway.

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

<p>1. Husband and wife—husband not liable for necessaries furnished his wife when she lives separate from him without his fault. The law requires the husband to furnish the wife with all necessaries suitable to his condition in life, including medical attendance in case of sickness, but it gives him the right to procure these necessaries himself, and to decide from whom and from what place they shall come. And where the husband has provided a home for his wife, together with the necessaries of life, and she receives kind treatment from him, but, disregarding this, voluntarily, and without any good and sufficient cause, deserts him and lives apart from him, then the duty and obligation resting upon him, to furnish necessaries, ceases.</p> <p>8. Same—party furnishing necessaries to a wife living apart from her husband, bound to know whether she has cause. Where a physician rendered medical services to a wife whom he knows to be living separate and apart from her husband, he is bound to know whether she has cause for so doing or not, and if she has no cause, he can not hold the husband liable for such services.</p> <p>3. Same—husband liable for necessaries furnished the wife when he refuses to furnish them. If the husband fails to furnish his wife with the necessaries of life at his residence, or if he abuses her and fails to discharge his duties as a husband, so that she can no'longer reside with him, she has the undoubted right to seek a residence elsewhere, and procure necessaries at his expense.</p>

<p>1. New trial—verdict against the evidence. Whilst it is true that, where there is a conflict of evidence, the decision of the jury will not be disturbed, especially where the court can see, from the whole case, that justice has been done, yet, where that decision is so clearly against the preponderance of the evidence as to amount to a perversion of justice, it will be set aside.</p> <p>2. Contributory negligence — leaping from a train when in rapid motion. Where a passenger on a railroad train, having a ticket entitling him to stop at a given station, leaps from the train whilst in rapid motion, . under the apprehension that he would be carried past his stopping place, his want of care in so doing is such as to prevent his recovering damages for an injury occasioned thereby.</p> <p>% 3. Railroads—liable for carrying passengers past stations.. If a railroad company carry a passenger beyond a station to which he is ticketed, without his consent, and without affording him a reasonable opportunity to leave the train, he has a right of action for whatever damage he may sustain by reason thereof.</p>

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

<p>1. Redemption from sale on foreclosure—by whom, and udthin what time. Where a part}' purchases real estate at a sheriff’s sale under execution, upon which there is a mortgage executed by the judgment debtor prior to the judgment upon which the execution issued, and obtains a deed from the sheriff" upon such sale, all he acquires by virtue of the sheriff's deed, is the equity of redemption of the judgment debtor, and this right he is bound to exercise within twelve months after a sale under a decree of foreclosure of the mortgage, to which he is made a party; and if he fails to do so, a judgment creditor of the mortgagor may rightfully redeem at ant- time after the expiration of twelve months and before fifteen months from the date of the sale under the decree of foreclosure, and subject the land to sale under execution upon his judg> meut.</p> <p>2. Same—what constitutes. An assignment of a certificate'of purchase to one entitled to redeem is not a redemption from the sale, and he will not be permitted to use it as a certificate of redemption. If such party intends to redeem, he must do so absolutely, and have the evidence recorded in the proper office.</p> <p>3. The purchaser of the equity of redemption of the mortgagor in a tract of land, conveyed the land to another bjr a deed containing the usual covenants of warranty, and afterwards, and within twelve months from the sale of the land under a decree of foreclosure of the mortgage upon it, paid to the holder of the certificate of purchase under the mortgage sale, who was the mortgagee, the amount of the mortgage debt, and took an assignment of the certificate of purchase to himself. After the expiration of twelve months, and before fifteen mouths from the date of the mortgage sale, a judgment creditor of the mortgagor caused an execution to be issued on his judgment, and placed in the hands of the sheriff, and also placed a sufficient sum of money in the sheriff’s hands to redeem the land from the sale under the decree of foreclosure. The sheriff' then levied on the land, and issued the usual certificate of redemption from the mortgage sale, which was filed and recorded in the proper office: Held, that the assignment of the certificate of purchase to the grantor in the warranty deed did not operate as a redemption, and that the redemption by the judgment creditor was legal, and it was error to enjoin the sheriff from selling the land.</p>

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

Cyrus Epler, Judge, presiding. This was a proceeding by mandamus in the court below, where a peremptory writ was awarded, and the respondent appealed.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p> <p>This was a petition for a mandamus, to compel a justice of the peace to issue a writ of restitution upon a judgment rendered by him in an action of forcible entry and detainer. The petition sets out the rendering of the judgment by the justice on the 6th of June, 1873, and that the defendant, on the 11th of the same month, filed an appeal bond with the clerk of the circuit court, who took, accepted and filed the same, and issued a summons and supersedeas, which were served on the justice; that on the 27th of June, 1873, and more than twenty days after the rendition of said judgment, a demand for a "writ of restitution was made, and the justice . refused to issue one; that an application had been made to the circuit court to dismiss the appeal, which it refused to do, and retains the same on its docket for trial.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.</p>

<p>1. Conveyance op real estate—token for school purposes, must he so used. ' When real estate is conveyed for school purposes, and it is so expressed in the deed, the land must be so used, and the directors and trustees would have no right to sell the land and apply the proceeds 1o school purposes, as in such case, although the proceeds of the land would he used for school purposes, the land itself would not.</p> <p>3.' They might occupy the land as a school site, or they might hold and rent it and apply the rent to the general school purposes of the district.</p> <p>3. . .Parties — in ehaneery. Two pieces of land were conveyed for school purposes, one of them to the trustees of schools, and the other to the school directors of the district. On hill filed to set aside and cancel the 'deeds on the alleged ground that the grantees were about, to sell the premises to he used for other than school purposes, it was held, the school.directors were necessary parties defendant.</p>

<p>1. Jurisdiction—pi’esumption in favor of, in superior courts. Nothing will be intended to be out of the jurisdiction of a superior court. Such courts will be presumed to be acting within the limits of their jurisdiction until the contrary is made to appear.</p> <p>3. If it is possible for the court to have jurisdiction, it will be presumed the state of facts existed which authorized it to render the judgment it does render.</p> <p>3. Service in foreign county—in lohat manner questioned. Where a defendant seeks to raise the question of jurisdiction, in a case where the summons has been served in a foreign county, he must do so by plea in abatement-. He can not avail of it by demurrer, or by writ of error after default.</p>

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Clay county; the Hon. J. C. Alleh, Judge, presiding.</p>

<p>Forcible entry and detainer—waiver of objection to complaint. Where a complaint, in an action of forcible entry and detainer, had no jurat attached to it, and the defendant went to trial before the justice of the peace without making any objection to the complaint, and look an appeal to the circuit court, and there, for the first time, entered a motion to dismiss the suit on account of the defect in the complaint, and, upon that motion being overruled, went to trial without excepting to the ruling of the court, and the transcript of the justice showed that the complaint was sworn to, it was held, that, although the filing of a complaint was jurisdictional, the defendant had waived the defect that existed in the complaint.</p>

<p>1. Mandamus—to compel trustees of schools to form new school districts. A party petitioning for a mandamus to compel the trustees of schools to form a new school district, must show that he is a resident of the district proposed to be made, before the writ can be allowed.</p> <p>2. Where it appears that a petitioner for a writ of mandamus is presenting a matter in which he has a direct personal interest, the petition should contain the proper allegations to bring himself favorably before the court, to give him a status in court.</p> <p>3. School districts—petition for division of must show a case clearly within the law. A petition seeking to effect a division of a long established school district, should make a case within the express provisions of the statute before the trustees can be required to act.</p> <p>4. And a failure to show, in the petition, that the school district sought to be divided has no bonded debt, and that-the boundary of the new district does not come nearer than one mile to a school house, and that the petition is signed by all the voters of the new district, and that such new district contains not less than five families, is fatal to the petition, and the trustees can not be required to act upon it.</p>

<p>1. Practice—assigning special causes for new trial. To avail himself of an objection to a verdict on the ground that the damages are exces- . ° sive, a party should, in some way, either by general or special objection, make that a ground for granting a new trial, and if he fails to do so, he must i)e regarded as having had no objections to the amount of the finding, or if he had, that he waived them.</p> <p>3. Trespass—a pwrty who uses more force than is necessary to eject another from, his premises, is a trespasser. When a person directs another t0 leave his house, who refuses, he has the right to use all reasonable and necessary force to compel him to go, but no more than is necessary to effect the end, and if he does use more force than is necessary he becomes a tresPasser «6 initio.</p> <p>3. Instructions—need not he repeated. It was not error to refuse an instruction to the effect that the defendant had a right to use such force in exPeU*n£ plaintiff from his premises as an ordinarily prudent and cauii°ns ™an would have done under the circumstances, when, by another instruction, the jury had been told that the defendant had a right to use such force as was reasonably necessary, as the instruction given, in substance, contained all that was embraced in the one refused, and the court was not required to repeat it.</p> <p>4. Measure op damages in trespass to the person. The plaintiff, in an action of trespass for injury to his person, is entitled to recover such an amount of damages as will compensate him for the injury sustained, and if the acts on the part of the defendant were wanton and wilful, the jury may give punitive damages.</p> <p>5. Punitive damages—what the jury may consider, in awarding. The jury, in awarding punitive damages for a wanton and wilful trespass, may take into consideration the pecuniary circumstances of the defendant, and the age, sex, position in society of the plaintiff', and the injuries received, with all the circumstances in evidence.</p> <p>6. Costs. Where a summons was falsely returned served, and a default had thereon, which was afterwards set aside, and the return quashed, and, upon a trial, the plaintiff recovered judgment, it was proper to tax the costs of both the writs against the defendant.</p>

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

<p>Railroad—when not required to fence their track and make cattle-guards. A railroad company is not bound to fence its track or make cattle-guards within the limits of a village; and a place where there is a station house, a warehouse, a.store, a blacksmith shop, a postoflice and five or six dwelling houses, whether the)' arc situated upon regularly laid out streets and alleys or not, comes fully up to the requirements of a village, for the purpose of excusing a railroad company from fencing its track within the ' limits thereof.</p>

<p>1. Constitutional law—bringing Texas cattle into this State. The constitutionality of the act to prevent the importation of Texas or Cherokee cattle into this State, approved Feb. 27, 1867, has been frequently affirmed and recognized b3r this court in numerous cases, and as there is nothing in the amendment to that act, .approved April 16, 1869, to which the reasoning in these cases is not equally applicable, it seems that the question of the constitutionality of the amendment is settled.</p> <p>2. Railroad company—liable for injury occasioned by bringing Texas cattle into this State. A railroad company is not bound, as a common carrier, to receive for transportation that which the law prohibits it from carrying, and it is liable for any injury occasioned by its bringing Texas or Cherokee cattle into this State as such common carrier, the same as an individual is.</p> <p>8. And -whether a railroad company acts in good or bad faith in violating the law, the extent of the injury resulting from the violation to the property of individuals or other corporations is manifestly the same, and the burden should be borne by the party whose act causes or contributes to the loss or injury, rather than by the owner who is without fault.</p>

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

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

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

<p>Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

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

Charles Turner, Judge, presiding. The appellee, together with Eichard Yates, James L. Beggs, William Greene and John Bennett, by deed dated April 25, 1860, but in fact executed on the 4th of June, 1860, conveyed 200 lots in the town of Ashland, in Cass county, to M. Stacy, Wesley Mathers and W. T. Beekman, trustees, as is recited in the deed, for and in consideration of the benefits to be derived by the grantors from the construction of the Tónica and Petersburg railroad,…

<p>1. Pbactice—where there is a general verdict and several special findings. Under tlie act of 1872, in regard to practice, where there is a general verdict and several special findings by the jury, the general verdict should not be set aside because some of the special findings are inconsistent with it, but the court should examine and construe the special finding of the juiy as a whole, and if, when thus considered, it is not inconsistent with, the general verdict, judgment should be rendered on the general verdict.</p> <p>2. Negligence—the same degree of ca/t;e not required of a child as of a person of mature age. The rule of law in regard to the negligence of an adult, and the rule in regard to that of an infant of tender years, are quite different. The adult must give that care and attention for his own protection that is ordinarily exercised by persons of discretion and intelligence, and if he fails to do so, and is injured, his injury is the result of his own folly, and can not be visited upon another. Of the infant of tender years, less discretion is required, and the degree depends upon his age and knowledge. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of the case.</p> <p>3. Damages—whether excessive. Where the plaintiff, a girl of seven years of age, was run over by a railroad car, and had one leg cut off and her right hand so crushed as to cause the amputation of two fingers, besides being otherwise injured, a verdict for §8100 was held to be not unreasonable.</p>

<p>1. Slander—words spoken to be taken in their common and, reasonable sense. Words spoken, when an action is founded upon them, are to be taken in the sense which men of common and reasonable understanding would ascribe to them.</p> <p>2. Declaration in slander—when sufficient. A declaration, in an action for slander, which alleges that the defendant, in a certain discourse which the defendant had concerning the plaintiff, and of and concerning the burning of a dwelling house, not the property of the plaintiff, but the property of the defendant, which had been wilfully and maliciously burned and destroyed by Are, by some means unknown, and not by the owner, said that the plaintiff burned it, and did thereby charge the plaintiff with the crime of arson, is sufficient.</p> <p>3. Special verdict. It is wholly discretionary with the court to require the jury to find a special verdict upon any fact of the case.</p>

<p>1. Equity pleading—when merments upon information and belitf are suficient. It is a general rule that, where facts are within the. knowledge of a party, he must state them positively in his pleading; but where matter essential to the determination of the claims of a complainant in chancery is charged to rest in the knowledge of the defendant, or must, of necessity, be within the knowledge of the defendant, and is consequently a part of the discovery sought by the bill, it may be stated upon the information and belief of the complainant followed by a statement that he therefore charges the fact to be true.</p> <p>2. A bill to enjoin the supervisor of a town from issuing, and a railroad company from receiving, the bonds of the township, charged, “ on information and belief, that, said company will soon demand of the supervisor of said town all or a part of said bonds, and that there is danger, unless said supervisor is enjoined from issuing said bonds, and the said company restrained from receiving the same, that said bonds will be issued and registeredHeld, that this was a specific and positive charge that there was danger that the bonds would be issued and registered, unless the supervisor was restrained from issuing, and the company from receiving, the bonds, and clearly entitled the complainant to an answer.</p> <p>3. Subscriptions to railroads—by whom, to be made. A clause in the charter of a railroad company which says, “it shall be lawful for all persons of lawful age, or for the agent of any corporate body, to subscribe to the capital stock of said company,” manifestly refers to private corporations, and confers no power upon municipal corporations to subscribe for such stock.</p>

<p>Negligence in railroad—injury to stock. Where a mule escaped from an in closure without the fault of the owner, and got upon a railroad track at a point not fenced, but where it was the duty of the company to have had a fence, and the mule is injured by a train, the company will be liable.</p>

<p>Railroads—liable for damage occasioned by obstructing the natural flow of water. A railroad company lias no right, by an embankment or other artificial means, to obstruct the natural flow of the surface water, and thereby force it in an increased quantity upon the lands of another, and if it does so, it is liable for any injury that the owner of the land may sustain by reason thereof.</p>

<p>1. Insurance—of the application. When an application for insurance is prepared, signed and presented by the owner, the company has the right to rely upon its correctness, and if incorrect in any material part it avoids the policy.</p> <p>2. It is competent to show, by parol, that an application for a policy of insurance, signed by the assured, was filled out by the agent of the compauy, with full knowledge of all the facts, for in such case it would be the act of the company as well as of the assured, and its representations are then as conclusive upon the company as upon the assured. All charge °f fraud and deception on the part of the assured might then be refuted.</p> <p>3. Same—as to title of assured. When an applicant for insurance fully discloses to the company or its agents the necessary facts as to the title to the property, or the company is otherwise cognizant of the facts, and they dispense with any act on the part of the assured, they are estopped from denying the description adopted in the policy. If, from all the facts in the case, they erroneously determine that the assured has one kind of interest in the premises, when he has another, they can not be heard to say that they were mistaken, and by that means escape liability.</p> <p>4. Same—fraud or false swearing. Where a policy of insurance contained a clause, that “ if there appears any fraud or false swearing, the assured shall forfeit all claim under the policy,” and on the trial of a suit brought upon the policy, the assured, in his deposition, stated that he owned the property at the time it was insured, under a certain deed, a copy of which he attached to his deposition and made a part of it, and it appeared by the deed that he only had a life estate, it was held, that this was not such false swearing as to preclude a recovery upon the policy.</p> <p>5. Same—assured entitled to recover to the extent of damage to property, without regard to the extent of his title. In the absence of fraud or mistake, and when' not otherwise limited by the policy, the assured is entitled to recover, where he has an insurable interest at the time the policy is obtained and also at the time of the loss, whether that interest is a title in fee simple, for life, or only merely equitable, the whole amount of damage done not exceeding the amount for which it was insured.</p> <p>6. Same—limitation as to time of bringing suit—pleading. A limitation of twelve months within which to bring a suit upon a policy of insurance is a reasonable one, but where the assured forbears bringing the suit at the instance of the company, and whilst negotiations for a settlement are in progress, it will afford a sufficient excuse for not bringing the suit pending the negotiations.</p> <p>7. And in a suit brought after the expiration of the twelve months, it is not necessary for the plaintiff to allege any excuse for not bringing it within the time, but the same rule of pleading applies as to other limitations of actions. If it is insisted upon, it must be set up by the defense, and the plaintiff may then reply the facts relied upon as his excuse for not bringing his suit within the time limited.</p> <p>8. Error will not always reverse. The giving of an instruction which is clearly erroneous, can not be allowed as cause for a reversal, where it appears that it worked no injury to the party complaining.</p>

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

<p>1. Intoxicating liquor—damages which the wife can recover on account of sale to her husband. In a suit by a wife, to recover damages on account of the sale of intoxicating liquor to her husband, she must show that she has been injured either in her person, her property or means of support, before she can recover.</p> <p>2. Same—when wife may recover exemplary damages on account of sale to her husband. Before a wife can recover exemplary damages in a suit against a party for selling intoxicating liquor to her husband, she must not only show that she has sustained actual damage to her person, her property or her means of support, but also some aggravating circumstances accompanying the transaction, on the part of the party selling the liquor.</p>

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

<p>1. Negligence in railroads—injury to stock running at large. Where a domestic animal, running at large by the sufferance of the owner, gets upon a railroad track at the crossing of a highway, where the company is not required to fence, and is injured by a passing train, the company is not, in general, liable, unless its servants, after they discover the animal, might, by the exercise of proper care and prudence, have prevented the injury.</p> <p>2. In such a case, it is not sufficient, to entitle the owner to recover, to show that the train was running at an unreasonable rate of speed, or without proper care in other respects.</p> <p>3. Former decisions. The decisions of this court in regard 1o animals injured by railroads, made under the law permitting cattle to run at large, do not apply fully under the law as it now is, and where no neglect on the part of the railroad company in fencing is involved.</p>

<p>Writ of Error to the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. O. L. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. O. L. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>