Volume 72 — Illinois Reports

<p>1. Pbactice—setting aside a continuance when no objection is made, is not error. The plaintiff took leave to amend his declaration, and thereupon an order of continuance was entered. On the next day the order of continuance was set aside, the defendant filed a demurrer, and also a plea of the general issue, and the parties went to trial before the court without a jury; no exception was taken to the order setting aside the continuance: Sold, there was no error.</p> <p>2. G-uabantob—extent of the liability. A guarantor of a promissory note is one who engages that the note shall be paid, but is not an indorser or surety, and he is regarded as an original promisor, and he is liable as well for the payment of any damages stipulated for in the note as for the amount of the note itself.</p> <p>3. So, where a promissoiy note provided for the payment of twenty per cent per annum, if not paid at maturity, as liquidated and agreed damages, and the guaranty was, “for value received, we guarantee the payment of the within note when due,” it was held, that the guarantor was liable for the stipulated damages as well as for the amount specified in the note.</p>

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

<p>1. Contracts—executed on Sunday. The execution of a promissory note is not complete until it is delivered to the payee, or some one for him, and it will not be void, though signed on Sunday, if delivered on another day.</p> <p>2. It is not sufficient, to avoid a contract, that it may have grown but of a transaction on Sunday.. It must have been finally closed on that day to avoid it.</p> <p>3. Same—executed on Sunday, valid if ratified afterwards. Although a contract may be entirely closed on Sunday, yet, if ratified by the parties upon a subsequent day when it is lawful to make contracts, it is valid.</p> <p>4. Where a promissory note made by two, one of whom signed it on Sunday, was, on a subsequent day, delivered by one of the makers to the payee, who was ignorant of the fact that it had been signed on Sunday, it was held, that such delivery was a subsequent ratification of the note, and made it valid. °</p> <p>5. A promissory note was signed by one of two makers, on Sunday, in a State where the statute made a note executed on Sunday void. It appeared that the note was written on another day and signed by one maker on Sunday, and on Monday the other maker delivered it to the payee, who had no knowledge of its having been signed on Sunday: Held, that, in such case, the note was within the. control of the makers until delivered, the possession of one being the possession of both, and that the delivery of the note on Monday was a ratification of it, and rendered it valid.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. Joseph W. Cochran, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Logan county; the Hon. Lyman Lacey, Judge, presiding.</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 Scott county; the Hon. H. M. Vandeveer, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Lake county; the Hon. T. D. Murphy, Judge, presiding.</p>

<p>1. Foreign corporations—acquiring titleto real estate. A corporation created by the laws of another State, which, by the laws of such State, can not there acquire and hold title to real estate by devise, is incapable of acquiring title to real estate, by devise, in this State.</p> <p>3. The American Bible Society being incapable, under the laws of the State of Hew York, where it was incorporated, of acquiring title to real estate by devise, can not acquire title to real estate in this State by devise; and real estate devised to it in this State is intestate estate, and descends to and vests in the heirs of the testator.</p> <p>3. Chancery—has no power to convert real estate into money, to enable a corporation to realize benefits. Where real estate is devised to a corporation incapable of acquiring title in that way, a court of chancery has no power to convert such real estate into money, and direct the payment thereof to such devisee.</p>

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

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

<p>1. Contintjakce—will not he granted where there is want of diligence., Where an affidavit shows that the witness whose testimony is required resides in an adjoining county, and it appears that no effort has been made to procure his testimony by deposition, or his appearance in court by subpoena, a motion for a continuance on account of the absence of, such witness should be overruled.</p> <p>3. Practice—judgment on appeal from the county court to the circuit court. The circuit court, in cases of appeal or writ of error from the county court, has power to reverse, affirm, or enter final judgment and award execution.</p>

Horatio M. Vakdeveer, Judge, presiding. This was an action of debt, brought by the appellees against the appellants, upon an appeal bond. Judgment was rendered against appellants for the sum named in the bond as debt, and also the sum of $165.90 damages.

<p>1. Specific performance—barred by laches. A party purchased a tract of land in 1856, to be paid for in three annual instalments, put his con. tract on record, and took possession of the land. He paid the first and part of the second note during the first two years, and, after the third one became due, his vendor moved to another State, and took the notes with him. The purchaser made no effort to find him, to pay the notes. About the time the last one became due, the vendor confessed a judgment in favor of his creditor. An execution was issued on the judgment, the land sold under it, and the creditor became the purchaser, and acquired a sheriff’s deed in 1860, and thereupon turned the vendee out of posses, sion, and, on the 22d of February, 1861, the judgment creditor filed a bill against his debtor and the vendee of such debtor, to remove the contract of sale between them, as a cloud on his title. The vendee, in September, 1866, filed a cross-bill, to which a demurrer was sustained, and thereupon the complainant in the cross-bill dismissed it, and the complainant in the original bill dismissed that. In October, 1867, the vendee filed his bill against the various parties in interest, for a specific performance of his contract of purchase: Reid, that there was such delay, unexplained by equitable grounds of excuse, as indicated an abandonment of the pur. chase, and that he was barred by his laches.</p> <p>2. Execution—interest in land subject thereto. The interest of the vendor in such case was such an interest as could be properly levied on and sold under execution.</p>

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

<p>1. Garnishment—judgment debtor subject. Under the Revised Statutes of 1845, which provide that, where any person is indebted, or has any effects or estate of the defendant in his hands, the same may be the subject of garnishment, it makes no difference whether such person is a judgment or a simple contract debtor. In either case, the effects or estate in his hands may be taken to pay his creditor’s claim, in the mode provided by the statute.</p> <p>2. A j udgment debtor, in the circuit court, may be garnisheed, on process issued by a justice of the peace.</p>

<p>Fobmeb adjudication—will not he reviewed. When a cause is reversed by this court, on the ground that a writ of mandamus should have been awarded in the court below, and upon a remandment of the cause the circuit court, without any new testimony being heard, awards the writ in conformity with the opinion of this court, such judgment of the circuit court will not be reviewed.</p>

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

<p>1. Venue—motion for change must he made at earliest opportunity. A. ./notion for a change of venue must be made at the earliest opportunity, and if a party fails to do so, his right will be barred.</p> <p>2. Practice—special verdict discretionary. Under the Practice Act of 1872, it is discretionary with the court whether it will direct the jury to find a special verdict, and no error can be assigned on the refusal of the court to give such an instruction.</p> <p>3. ¡Negligence—party building a reasonably safe distance from railroad track not guilty. Whilst a party who erects his buildings on or near a railroad track is presumed to know the dangers incident to the use of ■ steam as a motive power, and assumes some of the hazards to which his property is exposed, yet, where a party erects his building at a reasonably safe distance from the railroad track, he can not be held guilty of negligence because his building is so situated as to be liable to be set on fire by another subsequently erected in a dangerous proximity to the' track.</p>

<p>Lost instrument. In a suit on a bond alleged to be lost, the proof of loss must be clear and satisfactory.</p>

<p>1. Appearance — waiver of service. A defendant, by appearing and pleading in bar, waives all defects in the service of process, or even the want of service..</p> <p>2. Affidavit of merits—striking flea from the files. It is not error to strike a plea from the files for "want of an affidavit of merits, in a case •where such affidavit is required by law to accompany the plea.</p>

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

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

Writ of Error to the Circuit Court of Vermilion county; the Hon. James Steele, Judge, presiding. This was an action of trover, brought by the plaintiff in error against the defendants in error, for the conversion of a promissory note belonging to and payable to the plaintiff in error.

<p>1. Bound art lines—may he settled hy parol agreement. Although the title to real estate can not be transferred by parol, yet it is well established that the owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line so agreed on, is binding and conclusive, not only upon them, but upon their grantees.</p> <p>2. Instructions—should not make improper intimations. Where the weight of the evidence in a case shows such a contract as is insisted upon by one of the parties, the court should not instruct the jury that any loose talk on the subject between the parties could have no bearing against the party asking the instruction, as to do so would be intimating to them that the evidence on the subject was mere loose talk.</p>

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

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

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

<p>1. IsTOXicATixe liqtjob—master liable for damage occasioned by sale by his clerk. In a civil action by a wife against one for selling liquor to her husband, it is not proper to instruct the jury, that if the defendant had given orders to his clerks and agents, whose employment was to sell intoxicating liquors, not to let the plaintiff’s husband have liquor, and that the defendant did not, in person, let him have liquor, but refused to do so, then the defendant would not be liable for the acts of his clerks in violation of such instructions, and without his knowledge and consent.</p> <p>2. Such an instruction might be proper in a criminal prosecution to recover the penalty. And if the defendant had, in good faith, forbidden his clerk or bar-tender to let the husband of the plaintiff have liquor, and the clerk wilfully disobeyed him, without the connivance of defendant, it seems that, in a civil action, this fact should go in"mitigation, not of the actual damages, but of the vindictive damages claimed.</p> <p>3. Same—rule as to right of recovery of wife for sale of liquor to husband. In a suit by a wife against one for selling intoxicating liquor to her husband, where there is no evidence that she has been injured by the act of the defendant, either in her person, her property, or her means of support, she can not recover actual damages, and consequently she can not recover exemplary damages.</p>

<p>1. Venue—application for change after first term of court. Where an application for a change of venue is made at a term of court after the first, ten days’ notice of such application should be-given to the other party, or the affidavit should show that the cause for the change came to the knowledge of the applicant, for the first time, less than ten days before the time of making the application.</p> <p>2. Same—change on account of prejudice of the judge. An affidavit for a change of venue on account of the prejudice of the judge, which fails to show against whom the judge is prejudiced, is insufficient.</p> <p>3. Contributory negligence—duty of servant in using machinery provided by railroad company. It is the duty of the servant of a railroad company to see that the machinery which he uses is in repair, and when it is not, to report the fact to the company, and it is negligence on his part to fail to do so; and the company will not be liable for any injury sustained by him, occasioned by such machinery being out of repair.</p> <p>4. Same—parrty injured must use diligence to home himself cured. A party claiming damages for an injury caused by the negligence of another, must, after the injury is received, act as a prudent man would under the circumstances, and use due diligence to know whether medical aid is required, and to have himself cured. He has no right to act recklessly in this regard, and then charge the defendant for the effect of such conduct; and it should be left to the jury whether the party injured has used due diligence to have himself cured or not.</p>

<p>1. Negligence—contributory. In a suit against a railroad company for causing the death of a person through negligence, where there is a question as to whether the deceased was guilty of negligence or not, an instruction which directs the jury, if they believe certain facts, to find absolutely for the plaintiff, without containing the requirement of any degree of care whatever on the part of the deceased, is erroneous.</p> <p>2. In cases of mutual negligence, the general rule is, that a plaintiff who has been guilty of contributory negligence can not recover, but where the negligence of the plaintiff is slight and that of the defendant gross, the former may recover; but this court has never adopted any such rule as that the plaintiff would be entitled to recover on account of the negligence of defendant being greater than his.</p> <p>3. Pleading and evidence—recovery should be confined to the negligence as charged in the declaration. An instruction which allows a recovery for negligence in general respects, without limitation to the particulars of negligence specified in the declaration, is too broad.</p>

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

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding. o</p>

<p>1. Pleading and evidence—the evidence must establish the case made by the pleadings to warrant a recovery. If a party recovers in an action, it must be on the case made by the pleadings, and when a declaration, in a suit against a railroad company for damages caused by burning wheat stacks, alleges that the stacks were set on lire by sparks from a locomotive belonging to the company, evidence that the stacks were destroyed by a fire which originated in another field, even though such fire was occasioned by sparks from the defendant’s engine, will not sustain the averment in the declaration, and the plaintiff will not he entitled to recover.</p> <p>2. Purchaser—whether entitled to recover for prior damage. A railroad company is not liable to a party who purchases land after the road is constructed across it, for any damage done to the land in the construction of the road. If the owner of the land, at the time of the construction of the road, does not complain of the damage done to the land, his grantee certainhr can not.</p> <p>3. Verdict—not decisive of any fact when directly conflicting instructions are given. When the jury are told, in an instruction given on behalf of the plaintiff, that he is entitled to recover, and, in one given for the defendant, that the plaintiff is not entitled to recover, their verdict can not be regarded as settling any fact in the case, and no verdict they could render, under such circumstances, would be entitled to weight in the decision of the case.</p>

<p>1. Arbitrators—must be governed by the submission. Where arbitrators consider and pass upon matters not embraced in the submission, and of which they have no jurisdiction, their award can have no binding force. Arbitrators must be governed by the submission, and all things which they may do outside of and beyond the authority thus conferred are void.</p> <p>3. Same—are judges of law and fact. Arbitrators, by the submission, become the judges, by the choice of the parties, both of the law and the fact, and there is no appeal or review from or of any decision made by them within the scope of their powers, except for fraud, partiality or misconduct.</p> <p>3. Mistake—not ground, for setting aside award of arbitrators. A mistake, either of law or of fact, by arbitrators, is not ground for setting aside their award, but a mistake in the draft of the award may be reformed so as to conform to the award actually made by the arbitrators.</p> <p>4. Award—when it may be set aside. When the arbitrators refuse to hear, act upon and decide such matters as are embraced in the submission, or go beyond it and exceed their jurisdiction, the award may be set aside.</p> <p>5. But where the arbitrators have not gone beyond their jurisdiction, and there is no evidence tending to prove fraud, misconduct or partiality on their part, even if they have taken a mistaken view as to the legal liability of the parties upon the facts before them, the award can not be disturbed.</p>

<p>1. Pbactice—when right to assign error for sustaining a demurrer is ioaived. When a demurrer is sustained to a special plea, and the defendant afterwards asks and obtains leave of the court to file a notice, under the statute, of special defenses, which notice, in substance, contains the same matter and things as were contained in the plea, it seems this would be a waiver of the right to assign as error the decision of the court sustaining the demurrer.</p> <p>2. Contract—construction—in respect to a contract to construct a railroad. A contract for grading and laying the track of a railroad, provided that the track was to be laid with a good even surface; that the contractor should fill in after the track was laid with earth from the nearest point on the side of the track, and to do all necessary grading to finish the road, to be measured in the earth work aforesaid, and that the contractor should receive twenty cents per cubic yard for earthwork done under the contract: Held, that the work of filling in between the ties with earth, after the track was laid, should be taken and measured as earth work, to be paid for at the rate of twenty cents per cubic yard, and was not embraced in the work of laying the track.</p> <p>3. A contract was entered into between a contractor and a railroad company, by which the contractor undertook to grade the road at a certain price per cubic yard for the earth work, and a certain price per mile for laying the track, the track to be laid with a good even surface. A portion of the track had previously been graded, and, at the solicitation of the company, the contractor laid the track on the old graded work in the winter time, when it was impossible to do the grading that should have been done, but afterwards graded it properly, filling in and raising the track two and a half feet: Held, that it was immaterial whether this grading was done before or after the track was laid; it was none the less grading, and should be paid for, as such, at the agreed price per cubic yard.</p> <p>4. Evidence—must be received even if unsatisfactory, and acted upon, when there is no other. When grading is done for a railroad company upon a road that has already been partially graded, and the only evidence before the jury as to the amount of the new grading is the estimates made by the engineer of the contractor, and the company refuses to have any estimate made by its engineer, and offers no evidence on the subject, the jury must be guided by the evidence before them, and the fact that it may be difficult for the engineer to distinguish between the old work and the new, can not be ground for disregarding his testimony. If the company fails to produce any testimony on the subject, and the jury are compelled to act on that offered by the contractor alone, although unreliable, it is the result of its own neglect, against which no relief can be had.</p> <p>5. Measure op damages—for failure to complete a railroad by the time fixed in the contract. The measure of damages upon the failure of a contractor to finish a railroad within the time fixed by the contract, is the value of the use of the road from the time it should have been completed, under the contract, to the time when it is in fact completed.</p> <p>6. Same—not affected by contracts between other parties. A contractor who fails to finish a railroad by the time limited in his contract, can not be held for the loss occasioned to the owner of the road by reason of another contract between him and a third party, fpr the use of the road after the time it should have been completed, even though he may have known of the existence and the terms of such other contract at the time of entering into his own, unless he expressly agrees to such a rule of damages.</p> <p>7. The private agreement between a railroad company and a third party, for the use of the company’s road, provided it is finished by a given time, is not competent evidence as to the value of the use of the road, as against a contractor, in a suit for damages occasioned by his failure to finish the road by the time fixed in his contract.</p> <p>8. Damages—;for failure to perform, contract, may be recouped, although the performance at a fixed time has been waived. Where a contractor fails to perform his contract within the time fixed for its performance, the other party may permit him to go on after the time limited, and finish the work, and then accept it, without waiving anything, except the performance on the day fixed. In such case, the contractor could recover for his work on the quantum meruit, and the other party would have the right to insist upon and recoup such damages as he may have sustained by reason of the non-compliance with the contract.</p> <p>9. Variance — whether ground for arrest of judgment, or only for new trial. A variance between the allegations in the declaration and the proofs, may constitute cause for a new trial, but it seems it can not be considered on a motion in arrest of judgment.</p>

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

<p>1. Negligence—in construction of structures on fair grounds. Individuals who hold a fair, and erect structures for the use of their patrons, are liable for any injury such patrons may receive by the breaking down or falling of such structures, if caused by the negligent or unskillful manner of their construction, and their liability can not, in any manner, be affected by their giving to such fair the name of an old society.</p> <p>3. Faihs—whether held, by society or individuals, a question of fact. Whether a fair held in the name of a society is held by such society or by individuals, is a question of fact to be determined by the jury.</p> <p>3. Instructions—objections to one may be obviated by others. Even if there be doubt as to the proper construction of an instruction given on behalf of one party, yet, if the instruction given on behalf of the other party entirely remove such doubt, there is no error.</p>

Appeal front the Circuit Court of McDonough county; the Hon. Chauncey L. Higbee, Judge, presiding. The Eockford, Eock Island and St. Louis Eailroad Company made a contract with one L. E. Saul pa ugh to do the grading of its road from Monmouth to Bushnell. Saul pan gli sub-let a portion of the grading to Hawes & Brewster, and Hawes & Brewster sub-let a portion of their work to John Eose, who commenced work under his contract.

<p>Appeal from the Circuit Court of Shelby county; the Hon. H. M. Vandeveer, Judge, presiding.</p>

<p>1. United States Marshal’s deed—successor of, may make without special order of court. A deed executed by a United States Marshal in 1858, in pursuance of a certificate of purchase, executed by his predecessor in office, upon a sale on execution made in 1856, is sufficient to pass the title of the execution debtor, without any order of the court from which the execution issued for the marshal to make such deed as was required by the act of Congress of May 7, 1800.</p> <p>3. Federal courts—process and proceedings of State courts adopted. The act of Congress of 1838 adopted the mesne process and modes of proceedings in suits at common law, then existing under the State laws of the State where the court was held, including writs of execution and final process, and the proceedings thereunder, and the act of 1843 extended the provisions of the act of 1838 to all State laws on the subject in force at the time of the enactment of 1843. Hence a sale on execution, and all proceedings thereunder, by a United States Marshal, after that time, would be governed by the State law in force at the time of such sale and proceedings.</p> <p>3. Constructive service — when decree becomes final. Under the Chancery Act of 1845, a decree rendered against a defendant not personally served is merely interlocutory, and does not become final until the expiration of three years from the date of its rendition, and all rights acquired under such decree are subject to the action of the court in relation to such decree during the three years allowed" to such defendant within which to open the same, and make his defense.</p>

<p>1. Fraud and deceit—/also representations by vendor of a patent right. Where the vendor of a new invention and patent right represents to one about to purchase territory that other parties who have purchased territory are selling the same, and doing well with it, and have made thousands of dollars, and that he had just received a letter to that effect, from one of such parties, such representations are material, and likely to influence the purchaser, and he has a right to rely upon them, and if he does so, and is thereby induced to purchase, and such representations prove to be false, the purchaser has an action against the vendor for fraud and deceit.</p> <p>2. Agent—representations of, regarded as those of principal. Where an agent is employed by the owner of a patent right, to induce parties to make purchases, and he, by representations to a party as to the quality and value of the patent, gets him to the negotiating point, and then turns him over to his principal, who closes the trade with him, the representations made b\" such agent are to be taken as those of the principal.</p> <p>3. Evidence—when proper as to transactions between one party to the suit and strangers. In an action against the vendor of a patent right,, for fraud and deceit in the contract of sale, where it appears that the vendor had represented that other-parties had purchased territory, and were doing well with it, evidence in regard to the transactions between the defendant and such other parties, and that they had made complaints of the worthlessness of the patent, to the defendant-, is proper for the purpose of showing that the defendant knew the patent was without value, and that his representations to the plaintiff", in relation thereto, were made with knowledge of their falsity.</p> <p>4. Tender—of article purchased not necessary before suit for fraud and deceit in the sale of it. A purchaser has a right to maintain a suit against his vendor for fraud and deceit in a contract of sale without tendering back the thing purchased.</p> <p>5. Payment—as between original parties. The plaintiff" in an action for fraud and deceit in a contract of sale, had given his notes for the article purchased, some of which he had paid, and one of which had been assigned, and was in judgment: Held, that the note assigned and in judgment should be regarded as paid, and that the plaintiff" was entitled to recover as to it as well as to those actually paid.</p>

<p>1. Municipal bonds—irregularities in the issue do not affect the validity, unless they go to the power to issue. Where county bonds upon subscription to a railroad have been issued and got into circulation, all reasonable presumptions will be indulged in favor of their regularity, until overcome and rebutted; and even if irregularities are shown, they will not invalidate the bonds, unless they go to the power of the county court to issue" them.</p> <p>2. It will be presumed, when such bonds are found in circulation, that the legal steps have been taken to authorize their issue.</p> <p>3. Where the county court was empowered, by law, to issue the bonds of the county, upon a vote to be taken upon the subject in' the manner prescribed by the law authorizing such vote and the issue of bonds, and such bonds were issued, the fact that the evidence of the compliance with the law in calling and conducting the election, giving notice thereof, etc., may be lost or destroyed, does not affect the validity of the bonds, if, in fact, the law was complied with.</p> <p>4. Parol evidence — to establish lost record of election.- Where the record or written evidence of the fact that a notice of an election to vote on the question of the count}’ subscribing to a railroad and issuing bonds thereto, and of the result of such election, is lost, it is competent to prove such facts by parol.</p> <p>5. Fraud—as against bona fide holders. Where there is fraud in obtaining the issuing of bonds before the completion of a railroad to a given point, when, by the terms of the agreement, they were not to be issued until the completion to that point, such fraud does not affect the consideration of the bonds or their validity in the hands of bona fide holders.</p>

This was an application to this court, at the suit of The People, for a writ of mandamus against the trustees of the lands granted to the Illinois Central Railroad Company.

<p>Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Negligence—rule as to comparative, where Tooth parties are guilty. In a suit against a railroad company for damages occasioned by the negligence of its servants, where it appears the plaintiff’s own negligence was the cause of the injury complained of, or where the negligence of the parties is equal, or nearly so, there can be no recovery. It is only where the negligence of the plaintiff" is slight, in comparison, and that of the party causing the injury is gross, that a recovery is warranted, except in cases where the injury is wilfully inflicted.</p> <p>2. Same—what constitutes. It is negligence for a person to walk upon the track of a railroad, whether laid in a street or upon an open field, and he who deliberately does so will be presumed to assume the risk of the peril he may encounter.</p>

<p>Appeal from the Alton City Court; the Hon. Henry S. Baker. Judge, presiding.</p> <p>This was an action of assumpsit, brought by the appellees against the appellant, in the Alton City Court. In the first count of the declaration it is alleged that the Hughes and Whyte Roof Tile Company was indebted to the plaintiffs, and in order to secure such indebtedness, pledged and delivered to the plaintiffs seventy squares of tile, which were of greater value than the amount of such indebtedness; that afterwards, the defendant, being president of the company, in consideration of the release by the plaintiffs of their claim upon seventy squares of tile, and the delivery of the same to him, promised to pay them the indebtedness owing by the companv to them; that, in consideration of such promise, the plaintiffs did release their claim, and deliver the same to the defendant. The written instrument referred to in the opinion as executed by the superintendent of the company, was as follows :</p> <p>“ Alton, III., September 4, 1873</p> <p>I have this day sold to Topping Bros, two car loads of tile,</p> <p>70 squares, or sufficient quantity to fill the order I now have from Messrs. E. Harrison & Co., of Irondale, Mo., the tile being now in our yard, and to be shipped to Messrs. E. Harrison & Co., Irondale, Mo., as soon as cars arrive to take it away; price’ of same to be §7 per square, less amount of freight on same to St. Louis.</p> <p>Hughes & Whyte Roof Tile Co.</p> <p>By H. S. Shown, Supt.”</p> <p>Brown, the superintendent, testified that the reason he executed this paper, was, to enable the plaintiffs to get their pay out of the proceeds of the sale thereof,and to return the balance to him for the company; that the tile remained in the company’s yard, at the factory, and never was, in fact, delivered to the plaintiffs. The plaintiffs recovered a judgment for the amount of the indebtedness of the company to them, and the defendant appealed.</p>

<p>Writ op Error to the Circuit Court of Wabash countv; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

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

<p>1. Taxes—to/tai sufficient levy of, by boa/rd of supervisors. An order of tlie board of supervisors which shows that the committee on county taxes reported that they had examined the accounts of the county, and they recommended that a tax of §35,000, for all purposes, be levied for the year, upon all taxable property of the county, and that, on motion, the report was adopted, is,'in effect, an order that the tax be levied.</p> <p>3. Same—levy in excess of per cent allowed, does not vitiate whole ta/x. A levy of taxes in excess of the per cent allowed by the constitution, does not render the whole tax void, but only so much of it as is in excess of the constitutional limit, if the tax within the constitutional limit can be separated from the portion that is in excess of that limit.</p> <p>3. Same—exercise of power to levy, always ca/refully guarded. The levy of a tax is, in its nature, despotic, and is liable to serious abuse, and hence its exercise is always guarded with care. The power in the officers making such levies being delegated by law, they must exercise it within the limits of the law, and all their acts beyond the scope of the power delegated are void.</p> <p>4. So, where the authorities of towns, townships, districts, etc., are by law required annually, on or before a day specified, to certify to the county clerk the several amounts which they require to be raised by taxation, such certificates must be filed within the time limited to authorize the extension of the tax required, on the collector’s books, by the county clerk.</p> <p>5. Same—equalization of, by boom'd of supervisors. An equalization by the board of supervisors, made by arbitrarily fixing the value of improved lands in each town, at a uniform specified valuation, is illegal, and hence, if the clerk disregards such equalization, and extends the tax on the assessor’s return, the tax is not thereby vitiated or rendered illegal.</p> <p>6. County clerk—only a ministerial officer, in eastending taxes under order of board of supervisors. The county clerk is a ministerial officer, and has no discretion, in acting under the orders of the board of supervisors, in extending taxes upon their equalization; and if he refuses to extend the tax on their equalization, he does so at his peril, and can only justify such refusal on the ground that to do so would violate the constitution of the State.</p>

<p>Consideration—subscription as a donation to educational institutions. Where a subscription to an educational society is made upon condition that a certain amount shall be obtained in cash, or promissory notes given, for the same purpose, the labor and expense necessary to obtain such amount, if it is obtained, is a good consideration for the subscription.</p>

<p>1. Judicial sale — liability of bidders. Where a constable, having a junior execution issued upon a senior judgment, acting by authority of the plaintiff in his execution, bids on property of the defendant at a sale by another constable under a senior execution, the party for whom the bid is made will have to pay it, notwithstanding both he and the constable making the bid for him understood, at the time, that the proceeds of the sale would have to be first applied to the payment of his execution.</p> <p>2. Where one bids on property at a constable’s sale, for and in the name of another, the question as to his authority to make the bid, where the evidence on the question is conflicting, is one eminently for the jury, and if they find the authority existed, then the party for whom the bid was made will be liable for the amount of the bid.</p> <p>3. Same—conditional bids. A constable is not authorized to accept a conditional bid at a sale made by him under execution.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p>

<p>1. Master and servants—who cere eo-sei’mnts. The engineer, brakemen and shovelers employed on a construction train are all co-servants, engaged in the same branch of service, and a shoveler who is injured through the negligence of the engineer or brakemen can not recover from their common employer for such injury, if the employer has used due diligence in their selection.</p> <p>2. Same—servant cannot recover against master for injuries sustained through defective machinery. Where an employee, after having the opportunity of becoming acquainted with the risks of his situation, accepts them, he can not complain if he is subsequently injured by such exposures; hence, an employee on a construction train, who is aware that the brakes on the cars are defective, or who has had an opportunity to know it, and still continues in such employment, can not recover, in a suit against his employer, for injuries sustained by reason of such defective brakes.</p> <p>3. Negligence—plaintiff guilty can not recover, unless his is slight and defendant's gross'. Although the defendant’s negligence may have been the prime cause of the injury to the plaintiff, yet, if the plaintiff, by the exercise of due care, might have avoided receiving the injury, and his negligence is slight and that of defendant gross, when compared with each other, the plaintiff can not recover.</p> <p>4. Verdict—when general and special are not reconcilable. When the general verdict of the jury is inconsistent, and not reconcilable with the facts specially found in reply to questions propounded to them by the court for special finding, the general verdict should be set aside.</p> <p>5. Instruction—must state all facts necessary to be proved. An instruction which assumes to be, in itself, a complete statement of a case which, under the law, entitles a party to recover, must state fully all that need be proved, so that, if there were no other evidence, there could be no question as to the rights of the parties.</p>

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

<p>1. Covenant—only lies against one who executes a deed. An action of covenant will not lie against the grantee in a deed executed by the plaintiff, for a failure by the grantee, after accepting the deed and taking possession under it, to perform the conditions upon which the deed, as therein expressed, was executed.</p> <p>3. Practice—time to object to form of action. When a defendant fails to raise the question in the court below as to the sufficiency of the form of action, cither by demurrer or by motion in arrest of judgment, he will be regarded as having waived the objection, and will not be permitted to raise it for the first time in the Supreme Court.</p> <p>3. Measure oe damages—for failure to fence railroad trade and erect depot in consideration of right of way. In a suit against a railroad company for a failure to erect a depot building upon .the plaintiff’s land, and also to erect a sufficient fence on each side of a strip of land conveyed by plaintiff, which it had undertaken to do in consideration of such conveyance to it, the value of such strip of land, and the damage- occasioned to the balance of the farm by the failure to fence it, would be the natural and proximate damage which the plaintiff would be entitled to recover.</p> <p>4. But any supposed damage to the farm on account of the failure to build the depot, growing out of anticipated increased value, is too remote to be considered a necessary consequence of the failure to build the depot, and for such damages no recovery can be had.</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

<p>1. Judicial sale—by whom, to be made. Where a sale under a decree of court is conducted by an agent of the commissioner authorized by the decree to make the sale, and in his absence, and á deed is made by the commissioner, this is an irregularity that would vitiate the sale, and authorize the parties interested to have it set aside, if the rights of no innocent purchaser intervened, but it does not go to the jurisdiction of the court.</p> <p>2. Jurisdiction of infant defendants cam not be acquired by entry of appearance by guardian ad litem. Where the defendant in a partition suit was a minor at the time of rendering a decree of sale, and there was no service of process, and the record show's that the appearance of the minor was entered by a guardian ad litem, appointed by the court to defend for her, it was held, that the court had no jurisdiction, and the whole proceedings were coram non judice, and the decree and sale thereunder w'ere absolutely null and void, and could be attacked by the owner of the fee, either directly or collaterally.</p> <p>3. Setting aside sale—refunding purchase money. Where infant defendants to a partition suit seek to set aside a sale of their land, made under a decree rendered in such suit by a court having no jurisdiction of their persons, and for an account of rents and profits against the purchaser at such sale, they will be required, as a condition to granting them the relief sought, to refund to such purchaser whatever of the purchase money paid by him may have come into their hands.</p> <p>4. So, also, where the purchaser has paid taxes upon the land, in the belief that he was the bona fide owner, the owners seeking to set aside the sale will be required to refund such taxes, as a condition to the relief sought by them.</p> <p>5. Tenants in common—one who appropriates whole property to his use accountable for rents and profits. Where one tenant in common appropriates the entire property to his own use, the other tenants may, jointly or severally, have an account taken, not only of the rents and profits actually received, but such as the wrong-doer could have realized by prudent management.</p> <p>6. Same—improvements by one. One tenant in common can not make improvements on the common properly, and charge his co-tenants even ratably with their value. If he makes such improvements, he does so at his peril.</p>

<p>1. Administrator’s sale—by whom to be made. The authority given to an administrator to sell real estate for the payment of debts, is a personal trust, which he can not delegate to another; and whilst a sale by an auctioneer employed by the administrator for that purpose, made whilst the admin, istrator is present, is the sale of the administrator, such a sale made, without the administrator being present, will not meet judicial sanction. See Chambers et al. v. Jones, ante, p. 275.</p> <p>2. Same—of real estate, must be subject to incumbrances. An administrator has no interest in the real estate of Ms intestate; he has but a power, and must take the estate as he finds it, and if incumbered, Ms plain duty is to sell it subject to the incumbrance.</p> <p>3. Where a deed is tendered to a purchaser of real estate at an administrator’s sale, upon which there is an incumbrance, and he refuses to take it and comply with the terms of sale, he will not be entitled to a deed upon a tender of the amount of his bid, after the incumbrance has been removed without aid from him.</p> <p>4. Administrator—has no control or power over possession of land sold by him. An administrator has no right to deal with the possession of land sold by him, and a party taking possession of such land by the consent of the administrator, can not be considered as put in possession by any one authorized to do so. Such an act by the administrator is a violation of trust, from which no one privy thereto can take any benefit.</p>

<p>1. Negligence—presumptions and burden of proof to rebut. Although the prima facie presumption from an explosion of the boiler of a locomotive is, that there was negligence, either in testing or putting the materials together, when constructed into a boiler, or that it has been negligently used by subjecting it to too high a degree of pressure of steam, yet, when suit is brought by the engine-driver who had charge of the engine, or his representatives, against the person owning the engine, there is ho presumption in his favor that the explosion was caused by defects in the boiler rather than from its negligent use, and the burden is on the plaintiff to show that the engine-driver was not himself guilty of negligence which caused the explosion, or, if guilty, that his negligence was slight and that of the defendant gross.</p> <p>2. Same—engine-driver carrying more steam than rules of company allow can not recover damages caused by explosion. In a suit by the representative of an engine-driver against the owner of the engine, to recover for the killing of the driver by the explosion of an engine in his charge, the plaintiff can not recover if it appears that the explosion was the result of the carelessness of the engine-driver in not keeping sufficient water in the boiler, and in carrying more steam than, hy the rules prescribed by the owner, he was allowed to carry.</p>

<p>Bill of exceptions—when necessa/ry. Where there is no hill of exceptions, and it does not appear in the record that exceptions were taken to the ruling of the court below in dismissing an appeal for want of a sufficient amended appeal bond, such ruling will not be reviewed in this court.</p>

<p>1. Appeal—when it lies. "Where an appeal is taken from the county court to the circuit court, an appeal lies from the judgment of the circuit court to the Supreme Court.</p> <p>2. Practice—in circuit court, on appeal from the county court. In case of reversal of a judgment of the county court, the circuit judge would, no doubt, in the order reversing the judgment, or otherwise, indicate to the county judge the grounds of reversal, but an opinion is not required to be filed by the circuit judge in such case, and is wholly unnecessary in case of affirmance.</p> <p>3. Same—on appeal from judgment of circuit court affirming judgment of county court. When a case is appealed from the county to the circuit court, and removed thence to this court, only the errors assigned in the circuit court will be looked into, unless the assignment of errors in this court questions the action of the circuit court. A party will not be permitted to assign errors on the record of the county court in the circuit court, and then assign other and diflferent errors thereon in the Supreme Court.</p> <p>4. Bill of exceptions—when necessary. A bill of exceptions is only necessary to make some matter a part of the record, which otherwise would be no part thereof, and, as the filing of the transcript of the county court in the circuit court upon an appeal makes such transcript a part of the record of the circuit court, and the judgment of the circuit court thereon is a part of the record, no bill of exceptions in the circuit court is necessary to enable the Supreme Court to look into the record sent up from the county to the circuit court and the judgment of the circuit court thereon.</p> <p>5. Pledged property—party unlawfully in possession of, hound to surrender it to the pledgee on demand. Where property in possession of one as collateral security for a debt due him from the owner is stolen from his possession, and delivered to an express company, the possession by such company is unlawful, and when a demand is made upon them for the property by the lawfully authorized agent of the one from whose possession it was stolen, they should surrender it up, and if they fail to do so, they become liable for the value of the property.</p>

<p>Appeal from the Circuit Court of Wayne county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

<p>1. Surety—extension of time to principal—Twin availed of by surety. Where an action at law is upon a specialty, a surety can not set up a parol agreement to enlarge the time of payment without his assent, as a defense. In such case, his remedy must be sought in a court of equity.</p> <p>3. Consideration for an agreement to extend time of payment. Where the holder of a specialty for the payment of money agrees to enlarge the time of payment in consideration of money paid to him, he can not after-wards set up the usury, and allege the invalidity of his agreement to enlarge the time of payment.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding.</p>

<p>1. Chancery—jurisdiction in matters of account. A court of chancery has jurisdiction in matters of account; but it is not every account which will entitle a court of equity to interfere. It must be such an account as can not be taken justly and fairly in a court of equity.</p> <p>3. Same—accounting, how avoided. Where a bill for an account, filed by a party against his attorney in fact, alleges that the property and money of which an account is sought came into the hands of the defendant as the attorney in fact of complainant, and there is no mention that the defendant ever received anything under or by virtue of any other power or authority, a plea which states an accounting and final settlement of all matters under the power of attorney, and a new arrangement by deed, whereby the defendant was created a trustee for the complainant, and held whatever was in his hands as such trustee, presents a sufficient defense to the case made by the bill.</p> <p>3. Same—objection that plea is not sworn to, is one of form only. Where a motion is made in the court below to strike out a plea to a bill for an account, on the ground that it presents no bar to the relief prayed for, and that it does not fully answer the bill, but no objection is made on the ground that it is not sworn to, that objection can not be taken advantage of at the hearing as to the sufficiency of the plea, such defect being one of form only.</p> <p>4. Notice—taking an account before the master. The general rule, that all persons having an interest in the result of the proceedings should have notice of the attendance before the master, extends to cases in which a defendant, after appearance, has allowed the bill to be taken against Mm pro confesso, and a decree to be made for want of an answer.</p> <p>8. Master’s report—where an account is stated, the items should appear. A master’s report where a cause is referred to him to state an account, should in some way show the items of the account as stated by him. He should state facts, and not general results.</p> <p>6. Where the master reports upon accounts, the usual way is, to state results in the body of his report, and refer to schedules as to the particular items, wherein sufficient of the details should appear to show the ground of his decision as to the results stated.</p>

Tazewell B. Tanner, Judge, presiding. The declaration in this case, after the caption, is as follows: “Hail Storms, sheriff, and John Diddle, deputy sheriff of White county, Illinois, who sue for the use of Samuel B. Sacks and Joseph Sacks, partners, trading by firm name of J. & S. B. Sacks, complain of Thomas Matthews and Bobert Stanley, of a plea that they render to the said plaintiffs, for the use aforesaid, the sum of $2400, which they owe to and unjustly detain from the…

<p>1. Trust—executory, not enforced in equity. Although a court of chancery will not lend its aid to complete a voluntary agreement establishing a trust, nor hold it binding and obligatory while it is executory, yet, if it is executed, although voluntary and without consideration, it will be sustained and enforced in all its provisions.</p> <p>2. Same—whether executed or executory. In determining whether a trust is an executed or only an executory one, the intention of the parties at the time of creating it, is an important and controlling element, and equity, dis. carding unmeaning and useless forms, will look to the substance of the act done, and the intention with which it was done, and carry out that intention.</p> <p>3. Executed trust—cun not be changed by will. Where a party places property in the hands of a trustee for the use of his children, to be disposed of as directed by a will executed by him at the same time, the trust will be executed in accordance with such will, notwithstanding the will may be revoked and another one executed. The right of the party to make another will is not affected by such trust, but the right to dispose of or change the terms of an executed trust by will, does not exist.</p> <p>4. A father transferred to his son a large amount of notes and other securities, and took from him an agreement to pay $2000 per annum for his father’s support during his life, and to pay to certain parties named two-thirds of the proceeds of such notes and securities, upon the death of the father, for the use of a brother and sister named, ■which amount, so paid to such trustees, they were to dispose of as directed by the last will and testament of the father. At the same time, and as part of the same transaction, the father executed his last will and testament, and it and the son’s agreement were all placed in the hands of one of the trustees named, for safe keeping. It appeared, from oral testimony, that the intention of the father at the time was, to divide the notes and securities equally between his three children: Reid, that the trust created by the agreement between the father and son was an executed one, and that the two-thirds to be paid to the trustees named was to be disposed of by them as directed by the will of the father made at that time, and that he had no power to change or otherwise dispose of the property by a subsequent will.</p>

<p>Writ of Error to the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Chancery—granting new trial at lajw. Courts of equity never decree a new trial in a suit at law, when the complainant has been guilty of laches in defending. He must use all reasonable efforts to make his defense at law, and must be prevented by accident, mistake or fraud. If he is guilty of negligence in making his defense- at law, he has no claim to equitable relief.</p>

<p>1. Landlord and tenant—when tenant may dispute landlord’s title. As a general proposition, a tenant can not dispute his landlord’s title, but he may show it has terminated either by its own limitation or by his own conveyance.</p> <p>2. Conveyances—reservation of right to streets. Where the owner of property which is platted in lots and streets sells a lot, and reserves the right to vacate the streets, it is equivalent to a reservation of all his title thereto, and the purchaser of the lot will not acquire title to any part of the street on which it abuts, in case it is afterwards vacated.</p> <p>3. Same—when the law vests fee in city, purchaser takes no title. Where the law vests the fee of streets in the municipality, the purchaser of a lot abutting on a street takes no interest in the street, other than what he has in common with the public; and if the street is afterwards vacated, the fee will return to the original proprietor.</p>

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

<p>Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Practice—time to dbject'to evidence. The objection that the record of a judgment of the county court, offered in evidence, does not show a convening order of court, can not be made for the first time in this court.</p> <p>2. Admissions—by failure to plead, in full. All the material averments in a declaration, not denied or controverted by plea, are admitted.</p> <p>3. Hence, in a suit upon an administrator’s bond, for the failure of the administrator to pay a judgment rendered against the estate, in due course of administration, a plea that the plaintiff’s claim was not exhibited within two years after the granting of administration, does not put in issue the existence of the judgment, and the plaintiff is not required to make proof of such judgment.</p> <p>4. Judgment op county court. When a judgment rendered by a county court for the payment, in due course of administration, of a claim exhibited against an estate, does not provide for its payment from assets of the estate not then inventoried, the presumption is, the claim was exhibited within two years from the time of granting letters of administration.</p> <p>5. Same—presumption in fmor of validity. When the county court is adjudicating upon the administration of estates, over which it has a general jurisdiction, as liberal intendments will be granted in its favor as would be extended to the proceedings of the circuit court, and it is not necessary that all the facts and circumstances which justify its action shall affirmatively appear upon the face of its proceedings.</p>

<p>1. Negligence—in respect to persons passing over depot grounds. Railroad depot grounds and passenger houses are quasi public, and a person going to such houses and passing over such depot grounds in a proper manner, is not a trespasser, but where persons go upon or pass over the grounds connected with railroad depots, they are presumed to know that the place is dangerous, and hence are required to use care and prudence commensurate with the known danger of the place.</p> <p>3. On the other hand, the servants of a railroad company, knowing the enhanced danger at depot grounds on account of persons constantly passing and repassing, are required to exercise a greater degree of caution and prudence for the preservation of life and limb, than at other places where persons have no right to be and the employees of the company have no right to expect to find them.</p> <p>3. It is negligence for a person to travel on the track of a railroad at its depot grounds, where all must know that cars are constantly passing, and engines switching cars, and it is also negligence on the part of the company to have flying switches passing on a track without an engine attached, or a bell ringing, or a whistle sounding; and where both parties are at fault in these respects, it is for the jury to determine, from all the circumstances, whether the negligence of the plaintiff is slight, and that of the defendant gross, and if it is not, the plaintiff can not recover.</p> <p>4. Comparative negligence. A plaintiff, free from all negligence, may recover from a defendant who has failed to use such care as ordinarily prudent men generally employ; or a plaintiff who is even guilty of slight negligence, may recover of a defendant who has been grossly negligent, or whose conduct has been wanton or willful.</p> <p>5. Instructions—should be plain and explicit. In a case where there is doubt in regard to an important question, instructions should be plain and explicit, free from all doubt, and announce legal principles, so that there shall be no question as to what the law is.</p> <p>6. Punitive damages—private corporations not liable to, for mere negligence of servants. A private corporation can not be liable to punitive damages merely for gross negligence of its servants. If a company employs incompetent, drunken or reckless servants, knowing them to be such, or, having employed them without such knowledge, retains them after learning the fact, or after full opportunity to learn it, the company would be liable to punitive damages; or if the servants of a company, whilst engaged in its business, should wilfully or wantonly produce injury to others, the company would be liable to such damages.</p>

<p>1. Recording act—effect of destruction of records. Where a mortgagee places his mortgage upon record, his rights under it me fixed, and it is notice for all time, and the destruction of the record books does not extinguish or destroy such notice, nor affect the rights of the mortgagee injuriously.</p> <p>3. Same—mortgagee not obliged to incur expense of restoring, unden' act for restoring burnt records. The fact that the records have been destroyed by fire, and an act of the General Assembly passed to restore them, imposes no obligation upon a mortgagee, whose mortgage was duly recorded before such destruction, to incur the trouble and expense of the restoration of his mortgage.</p> <p>3. A mortgage was duly recorded, and afterwards the records were destroyed by fire, and an act of the General Assembly passed providing for the restoration of the lost records, but the mortgagee took no steps to have the record of his mortgage restored. After the destruction of the records, the mortgagor sold and conveyed the mortgaged premises to one who had no knowledge or information of the existence of the mortgage, and who took possession of the premises, claiming to have a perfect title thereto, of which fact the mortgagee had notice six years before a bill was filed to foreclose the mortgage, but such purchaser was not induced to make such purchase by anything done or said by the mortgagee: Held, on a bill to foreclose the mortgage, that although there wore equities on the side of the defendant, they were not superior to those of the mortgagee, and that he was entitled to have his mortgage foreclosed to pay the mortgage indebtedness.</p>

<p>1. Replevin—when suit should not he dismissed on appeal from justice. Where a defendant in a replevin suit appeared at the trial thereof before the justice of the peace, and after being found guilty appealed to the county court, it was his duty, as appellant, to file the papers, and he could not properly move the court to dismiss plaintiff's suit, because of the omission of the replevin bond from the papers filed with the transcript.</p> <p>2. Same—evidence on assessment of damages on dismissal of suit. When a replevin suit is dismissed, and the court proceeds to assess the defendant’s damages for the detention of the property, it is competent for the plaintiff to prove that the defendant is the mere pledgee of the property to secure a debt from the plaintiff, as in such case the defendant would not be entitled to recover anything for the value of the use of the property.</p>

<p>1. Contracts—in restraint of competition in trade to be strictly construed. Contracts which are, to a greater or less degree, in restraint of competition in trade, will be strictly interpreted as against the party complaining of their infraction, and will not be enlarged beyond what is written.</p> <p>3. Contract construed—as to exclusive right of ferry company to ca/i'ry freight and passengers for railway company. A contract between a railway company and a ferry company, bound the railway company to employ the ferry company to transport for it across the Mississippi river, at St. Louis, all persons and property which should be taken across the river either way by the railway company, to or from Bloody Island, either for the purpose of being transported on the road eastward, or which had been brought to the river over the road, destined to St. Louis or points beyond: Held, that the operation of the contract was confined to the territorial limits of Bloody Island, and that the railway company was not prohibited from extending their track to another point oh the river, and then employing another ferry to transport passengers and freight across the river, from such point to St. Louis and from St. Louis to such point.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Writ of Error to the County Court of Marion county; the Hon. John G-. Yaughan, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Parties—in chancery—generally. It is a rule of equity pleading, that all persons having an interest in the subject matter of a suit in equity, which may be injuriously affected by its determination, are necessary, and must be made parties.</p> <p>2. Where the answer of a defendant to a bill in equity discloses the fact that there are other parties claiming, as his assignees, the interest sought to be affected by the suit, and whose rights will be so affected by the decree sought, if rendered, as to drive them to their bill in equity to protect their rights, the complainant should obtain leave to amend his bill, and make such persons parties defendant.</p> <p>3. Same—person having interest in subject matter of suit, not bound, to become defendant on his own motion. Whilst there are cases in which persons who have an interest may, by petition, become parties defendant, on leave of the court, yet they are not concluded by the decree of the court if they fail to thus become parties.</p> <p>4. Same—effect of want of proper parties. It is the duty of a complainant to see and know that he has before the court all necessary parties, or his decree will not be binding, and it is the policy of the law to prevent a multiplicity of suits; and where a complainant takes a decree without making the necessary parties defendants to his bill, when the necessity of their being made parties is disclosed to him by the answer of those who are made parties and by the evidence in the case, the decree will be reversed.</p> <p>5. Corporation—through what agencies it must act. A corporation can only act through its officers, or by expressly delegating its power to others. A stockholder, even though he may own a majority of the stock, can not, as such, sell the property of the corporation.</p>

<p>1. Draft—liability of the drawer when he appropriates the fund drawn upon. An intestate, in his lifetime, caused his agent to draw a draft against funds which he had provided for the purpose of meeting such draft, and afterwards, having occasion to use such funds for other purposes, induced the holder of the draft not to present it for payment, and then appropriated all the funds in the hands of the drawee: Held, that this was an appropriation of the money of the holder to the amount of the draft, and that the holder was entitled to recover against his estate the amount of the draft, with legal interest from the time the money was appropriated by the intestate.</p> <p>2. In such a case, the recovery is not upon the draft, but for money of the claimant had and received and appropriated to his own use by the intestate, which, in equity and good conscience, his estate ought to repay.</p>

<p>Damages—when not excessive in an action of trespass. Ia an action of trespass for assault and battery, where the assault is wanton and cruel, and the circumstances peculiarly aggravated, and the conduct of the defendant shows cool, deliberate malice, and there is nothing which palliates it in the slightest degree, a verdict for $1000 damages is not excessive.</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

<p>1. Negligence—contributory and comparative. Although the mere fact that a plaintiff was guilty of contributory negligence in reference to the matter involved in his suit, will not, of itself, prevent him from recovering for injuries caused hy the negligence of the defendant, yet he can not recover in such case unless his negligence, as compared with defendant’s, was slight, and that of the defendant was gross.</p> <p>2. Wharf boats—liability of owners of, when not common carriers of passengers. The owner of a wharf boat, who is not a common carrier of passengers, and who receives no compensation from passengers for the use of his boat, whilst he is required to keep the passway safe which he permits the public to use, is not bound to maintain passways for passengers over and around every part of his wharf boat.</p> <p>3. A wharf boat, which was the only landing for boats at the point where it was situated, belonged to a company which was not a common carrier of passengers; it was used for the purpose of receiving and transferring freight, and the public did business with the boats through this wharf boat; it was the custom of the owner of the wharf boat to keep it closed of nights; the passway for passengers was through, and not around it. A party, having business with a boat approaching the wharf boat, went on to it in the night, when it was closed, and, in passing around it, in a part not used or intended as a passway for passengers, fell into a hole and was injured. He had made no application to have the wharf boat opened. The steamboat had not landed when he was injured, and the wharf boat was opened in time to transact business with it when it landed: Held, that the owners of the wharf boat were guilty of no negligence, and that the party injured did not exercise ordinary care and caution, and was not entitled to recover.</p>

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

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

Thomas F. Tipton, Judge, presiding. August 10, 1870, James G. Stowe, William F. Flagg and Nathan F. Mathewson, made a certificate of incorporation, under the statute for the formation of corporations (Laws 1857, p. 161), which certificate was filed in the office of the Secretary of State October 5, 1870, and in the office of the circuit clerk of McLean county November 11, 1870, and said clerk, on the 12th day of said November, issued a license to said Stowe, Flagg and…

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

<p>1. Courts—the, presumption is, that the judge authorized by law to preside does so. Although the record may show an agreement that an attorney named may try a case, yet if it nowhere appears that he in fact did try it, and the concluding part of the record shows that the court heard and overruled a motion for a new trial and rendered judgment, this court will presume that the trial was had before the judge authorized by the constitution and laws to preside.</p> <p>2. County courts—have jurisdiction in bastardy cases. By the bastardy act of 1872, (Laws 1872, p. 199,) county courts are vested with full power and jurisdiction to hear and determine a case of bastardy, and this is in addition to the jurisdiction conferred by the county court act, nor is any section of the county court act in conflict with, or repugnant to the bastardy act.</p> <p>3. The act of April 25,1873 (Laws 1873, p. 87), requiring the county court to transfer certain cases to the circuit court, only refers to cases where special jurisdiction had been conferred upon county courts prior to the adoption of the constitution of 1870, and has no reference to bastardy cases, whatever.</p> <p>4. Bastardy—-format pleading not necessa/ry. Where there is a sworn complaint before the court in a bastardy case, which shows the complete character of the charge against the defendant, and the record shows a plea of not guilty, the issue thus made up, though not as formal as it might be, is sufficient</p>

<p>1. Parol evidence—to explain an apparent variance. In a suit against one for obstructing a public highway, where there is an apparent variance between the description of the road in the notice to the defendant to remove obstructions, and in the declaration, it is competent to prove by parol that such variance is only apparent, and that the description is, in fact, the same.</p> <p>2. Pleading—when misdescription treated as swrplusage. In a suit for obstructing a public highway, any general description of the road, with a minute description of the part obstructed, is sufficient, and any variance in the general description of the road as given in the declaration from that given in the notice to remove the obstruction, which only affects the course of the road at some point other than the place -where the obstruction is, is immaterial. It is sufficient if the description of the part of the road obstructed is the same in the notice and declaration, and any variance in the description as to some other part may he treated as surplusage.</p> <p>3. Obstructing highway—building and refusing to remove obstructions are different and distinct offenses. Obstructing a public highway by building a fence therein, is one offense, and refusing" to remove a fence which was in the road when it was laid out, is a different and distinct offense.</p> <p>4. Penalty—suit for, in whose name to be brought. Where a statute does not, in terms, declare in whose name a suit shall he conducted for the recovery of a penalty for its violation, hut declares that the offender maybe indicted or sued before a justice of the peace, as ¿11 indictments run in the name of the people, it follows that the suit must he in the name of the people.</p> <p>5. Jurisdiction op circuit court—can not be affected by legislation when conferred by the constitution. The fact that a statute declares that a party may he indicted or sued before a justice of the peace for obstructing a public highway, can not in anywise deprive the circuit court of jurisdiction in such case, as that is conferred by section 12, article 6, of the constitution.</p> <p>6. Highways—in counties not undei’ township organization, refusal to remore obstruction no offense. There is no law, in relation to counties not under township organization, which makes it an offense for a person to fail or refuse to remove obstructions that may be in the line of a road at the time it is located and established.</p>

<p>Wbit oe Ebbob to the Circuit Court of St. Clair county; the Hon. William H. Snydeb, Judge, presiding.</p>

<p>1. Notice — on assessment of damages on default. Where a default for want of a plea is entered against a defendant, and a writ of inquiry to assess damages is ordered, the defendant is not entitled to notice of the execution of the writ, and if there is no time fixed for its execution by order of the court, the defendant, if he would contest the amount of damages, must keep watch and he ready whenever the plaintiff, with the consent of the court, chooses to have them assessed.</p> <p>2. Amendment of record at subsequent term. If the court, by order, sets a particular day for the assessment of damages upon a default, and afterwards, whilst such order is still in force, assesses the damages on a day prior to the one set by such order, the defendant is entitled to have the record made up in accordance with the facts, and if the record is not so made up, he is entitled to have it amended at a subsequent term of the court, if the minutes of the judge made at the time are such as to show, with reasonable certainty, that the court did, in fact, make an order fixing a day for the assessment of damages, and that the damages were assessed before that day arrived.</p> <p>3. The power of a court, over its records after the expiration of the term, unless the cause is still pending, is confined to errors and mistakes of its officers; and these may, at any time, upon notice to the parties in interest, and saving such rights as, in the interval of time, may have accrued to third parties, he corrected so as to make the record conform to the action or judgment of the court.</p> <p>4. It is requisite to the power of a court to amend its record at a subsequent term, first, that there should appear to have been some action of the court in the cause, which might properly and should have become a part of the record of that cause; and, secondly, that its omission from the record was through the fault or mistake of the clerk.</p> <p>5. Same—interpolation in judge's minutes not a part thereof though made by the cleric. It is not error for the court, to refuse to amend the record in a cause to conform to minutes on the judge’s docket not made by himself or by 1ns authority, and with no evidence as to when they were made, even though they are shown to be in the handwriting of the clerk.</p> <p>6. Default—rights of defendant on assessment of damages. Whilst a default admits every material allegation of the declaration, it does not admit the amount of damages, and the defendant, on the execution of the writ of inquiry, has the right to cross-examine plaintiff’s witnesses, to introduce witnesses on his part on the question of damages, ask instructions as to the proper measure of damages, and preserve the rulings of the court by bill of exceptions.</p>

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

<p>1. Pledge—presumption as to time of payment. Where bonds are pledged ' to a party as collateral security for money advanced by him to aid in doing the work for which the bonds were issued, and also for a share of the profits arising from such work, and no time is fixed for the payment of the money, the law presumes that a reasonable time is intended.</p> <p>2. Same—who may purchase, etc. The pledgee of bonds held by him as collateral security for the repayment of money advanced by him, can not become the purchaser of such bonds at a sale made by himself, in default of the payment of the money to him. If he does so purchase, the pledgor has the right to treat it as a valid sale, or to treat it as void; and if he elects to treat the sale as void, then the title to the bonds remains precisely as if no sale had been made, with the lien of the pledgee still on them for the amount of his debt.</p> <p>3. But if such sale is made by the pledgee fairly, in good faith and without any fraud, and a disinterested party becomes the purchaser, the title would pass to him, and the pledgee, on a settlement, would be chargeable with the proceeds of such sale, to be applied as a credit on the indebtedness for which the bonds were pledged as of the date of the sale.</p> <p>4. Interest—rate allowed on decree. A greater rate of interest than six per cent can not be allowed, unless it is under a contract to pay more, not exceeding ten per cent, by a court of equity, upon a bill for an accounting.</p> <p>5. Chancery jurisdiction—distribution of trust fund. Where contractors with a city to make certain improvements, to be paid for in its bonds, borrow money of a party with which to prosecute the work, and deliver to such party the bonds when received, as collateral security, the lender to be repaid the money advanced, with interest, and to have one-third of the profits realized, and no time is fixed for repayment to him, or within which the collaterals may be sold, or a division of profits made, and the lender, nearly four years after, attempts to dispose of the bonds, they are so far in the nature of a trust fund as to give a court of chancery jurisdiction, on bill by one of the contractors to take an account, convert the securities, and distribute the fund.</p> <p>6. Pledge—of the notice of sale of collaterals. Where municipal bonds are delivered as collateral security for money loaned, a notice of their sale by the pledgee published in a newspaper printed in the city where the bonds were issued, thirty days before the sale, and also in a newspaper published in Louisville, and they are sold in the latter city for more than they could have been sold in the city where issued, and no fraud is shown, the sale will be valid.</p>

<p>"Writ op Error to the Circuit Court of Alexander county; the Hon. David J. Barer, Judge, presiding.</p>

Writ of Error to the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding. This was an action of debt upon a guardian’s bond, in which the surety set up, as a defense, a discharge in bankruptcy. The court below decided that the discharge in bankruptcy did not release the surety on the guardian’s bond, and rendered judgment against him, to reverse which judgment he brings the record into this court.

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

<p>1. Contract—to pay the debt of another, when made as part of an original conPraet between the pm'ties, is obligatory. Where a creditor, in consideration of the indorsement to him, by his debtor, of certain notes belonging to the debtor, and of an order given by the debtor to the creditor for money which was collected by him, released the debtor from his indebtedness, and also undertook and promised to pay certain indebtedness which the debtor owed to a third party, it was held, that, if he failed to pay such indebtedness to the third party, he was liable for such breach of contract, and the debtor could recover from him all damages sustained by reason thereof.</p> <p>3. Statute of Frauds—promise to pay the debt of another. Where a debtor transfers to one creditor certain notes and an order for money, in payment of his indebtedness to such creditor, and also in consideration of the undertaking and promise by such creditor to pay a debt of the debtor to another creditor, such promise is not within the Statute of Frauds, and is binding.</p> <p>3. Witness—competency—wife for the husband. Where a debtor transferred to his creditor securities in payment of his own debt, the residue of the proceeds to be applied to the payment of other debts owing by the debtor to third persons, in a suit by the debtor against such creditor for a failure to make proper application of the fund, the wife of the plaintiff is not a competent witness in his behalf, under the act of 1867.</p>

<p>Writ or Error to the Circuit Court of Jefferson county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Chancery—-jurisdiction in matters of fraud. Courts of equity, in cases of fraud, have concurrent jurisdiction with courts of law.</p> <p>2. So, where a bill to set aside a deed alleged that the grantor had executed and delivered it to the grantee in consideration of the execution by the grantee of his four promissory notes for the purchase money, and a bond obligating himself to support the grantor so long as tire notes remained unpaid; that the grantor in the deed and payee of the notes placed the notes and bond in the hands of the grantee in the deed and maker of the notes, for safe keeping, the latter promising to return them to the former; that the grantee had neglected and refused to return the notes and bond, although frequently requested to do so, and had wholly failed and neglected to support the grantor; that, by fraud and deceit, the grantee had obtained the deed from the grantor, without paying or giving any consideration, and had conveyed the land to another without any consideration, it was held, that the circumstances justified the inference of an abandonment of the contract by the grantee and a presumption of fraudulent intent in entering into it, and that a court of chancery should entertain the bill on the ground of fraud.</p> <p>3. Same—answer as evidence—absence of replication. An answer to a bill in equity, which is not sworn to, is not, for any purpose, evidence in the case, but performs the office of pleading merely, and the mere want of a replication is not a sufficient cause for reversing a decree, where the parties have submitted the case for decision upon pleadings and proof, and the court heard proof without objection. In such a case, the filing of a replication will be deemed to have been waived.</p> <p>4. Same—presumption is, that facts recited in a decree as appearing to the court, appeared from the evidence. Where it appears, from the record, that the court heard proof, and the decree recites that certain facts appeared to the court, but the evidence is not preserved in the record, the presumption is, that the court found such facts from the evidence.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Lawrence county; the Hon. Richard S. Canby, Judge, presiding.</p>

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

<p>1. Municipal cobpobatton—execution can not be awarded. An execution can not be rightfully issued against a municipal corporation on a judgment for debt or damages, or costs, rendered against it.</p> <p>2. Same—gower to license traffic in liquor can not be delegated. Where the power to license the traffic in spirituous liquors is, hy the charter of a city, expressly conferred on the city council, this power can not be delegated to the mayor of the city by ordinance.</p> <p>8. Imprisonment—-for violation of city ordinance. In an action of debt for violation of a city ordinance, it being a civil suit, it is error to adjudge imprisonment against the defendant.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.</p>

William: H. Snyder, Judge, presiding. This is an appeal from a decree of foreclosure of a mortgage, executed by Henry Bossier to Patrick Byron, now deceased, January 4, 1867. The bill was filed by Michael Byrne, as administrator of the estate of Patrick Byrne, against Henry Bcester, the mortgagor, and his two sons, Frederick Bcester and Henry Bcester, Jr., as subsequent purchasers, from the mortgagor, of the mortgaged premises.

<p>Writ of Error to the Circuit Court of St. Clair county; the Hon. William H. Shyder, Judge, presiding.</p> <p>Mr. William Wiekelmah, for the plaintiff in error.</p>

<p>1. Process—what is sufficient return to show service. Where the statute requires the sheriff to deliver to the defendants, if found, a copy of the summons, a return by the sheriff that he served each of the defendants with a true copy of the summons, is equivalent to a return that he delivered each of them a copy, and is a substantial compliance with the statute.</p> <p>2. Appeal—defendant against whom, there is no judgment has no right. A defendant to a bill in chancery against whom no decree or judgment is rendered, can not appeal or prosecute a writ of error from a decree dismissing complainant’s bill.</p> <p>3. Error—party not affected can not complain. A complainant in a bill to impeach a former decree and sale, can not complain of an error committed by the court below against one who is a party defendant to his bill, which in no manner affects the rights of such complainant.</p> <p>4. Purchasers under decree—7low far protected. On a bill to impeach a decree and sale under it, nothing can be urged as against purchasers under such decree that does not go to the jurisdiction of the court. As to such purchasers, the bill to impeach the decree and sale is a collateral proceeding, in which mere matters of error in the former proceeding can not be considered.</p>

<p>1 Injunction—assessment of damages on dissolution. Where the only prayer of a hill is for an injunction, and a temporary injunction.is granted, which, upon the coming in of the answer, is dissolved, hut no decree rendered dismissing Hie bill or disposing of the case upon its merits, it is improper to assess damages.</p> <p>2. Certificate of evidence—recital in, can not be treated as a decree. A recital in a certificate of evidence, that a bill was dismissed, is not a decree, nor can it be treated as such, and this court will not act on it.</p>

<p>1. Criminal law—identity of party hilled must he shown on trial for murder. On the trial of one for murder, the party killed must bo proved to be the same person named in the indictment—the identity must be established.</p> <p>2. But this may be done by the man’s occupation as well as by his cliris tian name; thus, where the Christian name of the party killed was given in the indictment, and he was spoken of by the witnesses by his surname only, but was also spoken of as the barber, and the evidence was that he was a barber, and the only one in the place of that surname, it was held, that the identity was sufficiently established.</p> <p>3. Instruction—must he based upon evidence. Instructions upon questions not in the case, as made by the evidence, and which have no connection with it, should not be given.</p>

<p>Writ of Error to the Circuit Court of Saline county; the Hon. Andrew D. Duff, Judge, presiding.</p>

<p>1. Garnishee—process may be sent to any county in the State. Where a judgment is rendered in the circuit court, process of garnishment can be sent to any county in the State where the garnishee may be found, and in this respect there is no difference between natural persons and corporations. Either may be served as garnishee.</p> <p>2. Appeabance—plea to the jurisdiction. Where a garnishee files a plea to the jurisdiction of the court, to which a demurrer is sustained, and the garnishee stands by his plea, this does not constitute a full appearance on the part of the garnishee, and it is error to render final judgment against him. In such case, the judgment should be a conditional one, as upon a default, and a scire facias ordered returnable to the next term.</p>

<p>Í. Husband and wife—suit by one against the other. As between husband and wife, in order to the maintenance of a suit by the one against the other for a recovery as to personal property, the evidence should show, by facts proved, that the property is brought clearly within the operation of the Married Woman’s Act of 1861.</p> <p>2. The supposition of the parties, or their general statement, of the properly being or having been the separate property of the wife, is not sufficient proof of the fact to maintain a suit m relation thereto between the husband and wife. In such case, the facts should be stated from which it would appear whether or not the property is the separate property of the wife within the act of 1861, and not the conclusion of the witnesses from the facts.</p>

<p>1. Abuse of process—nonresident creditor attaching property of his debtor who is also a non-resident. A creditor who only takes such steps for the collection of a bona fide debt as itself permits, however zealous and vigorous in so doing, can not be guilty of an abuse of process or of obtaining the jurisdiction of the court for a fraudulent and improper purpose.</p> <p>2. A resident of the State of Indiana commenced an attachment suit before a justice of the peace in this State, against another resident of Indiana, who was temporarily in this State, with property which, by the law of Indiana, was exempt from attachment. The attachment writ was levied on that property. It appeared that both plaintiff and defendant lived in the same county in Indiana, and that the defendant could have been easily found in the county and State where both parties resided. It further appeared that the debt sued for was a just debt, and past due: Held, that there was nothing in these facts to justify a finding that the plaintiff was guilty of any abuse of process, or that he had sought the jurisdiction of the courts of this State for a fraudulent purpose.</p>

<p>1. Amendment of record at a subsequent term of court. After the expiration of a term of court at which a judgment has been rendered, the same court that rendered the judgment has no supervisory power over it at a subsequent term, except to correct it in mere matter of form, on notice to the opposite party.</p> <p>2. Same—writ of retorno hdbendo can not be awarded, at a subsequent term after judgment for costs only in a replevin suit. When a replevin suit is dismissed for want of a declaration, and a judgment rendered against the plaintiff for costs, the court rendering the judgment can not, at a subsequent term, upon notice to the plaintiff that a writ of retorno hdbendo will be applied for, so amend the record as to find the property in question in the defendant, and determine that he recover it from the plaintiff, and order a writ for its return.</p> <p>3. The fact that the court, at the time of dismissing a replevin suit, has the right to award a writ of retorno hdbendo, but fails lo do so, does not authorize it to sit in review of its own judgment at a subsequent term, and then enter a judgment, which should have been entered in the first instance, finding the property in the defendant and awarding a writ for its return to him.</p>

<p>Exchange of property—a party, to maintain a suit on a contract to exchange property, must show performance on his pw't. A party took corn to a mill to exchange for meal, where the custom was to weigh the corn and require the owner to put it in a crib near the mill, and then deliver meal to him in exchange. In putting the corn in the crib, the owner let a portion of it fall on tire ground, and the employees at the mill told him he must put the corn in the crib, or be docked in the amount of meal. He declined to put the corn in the crib, and left without demanding either his corn or meal: Held, on a suit brought by the owner of the corn, that he could not recover on the ground of a breach of contract to deliver meal, because he had not performed his part by delivering the corn in the crib, nor for a conversion of his corn, because, having put it into the miller’s possession, a demand and refusal would be necessary before he could claim that there was any conversion.</p>

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

<p>Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Hamilton county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Wabash county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

<p>1. School law—suit to recover fine. In a suit under section 76 of the School Law of 1872, to recover a fine imposed by that section, the information required need not be in writing, nor is it necessary that it should run in the name of the People of the State of Illinois. It is sufficient, if the process which brings the defendant into court runs in the name of the people.</p> <p>2. The word “information,” as used in the 76th section of the School Law of 1872, means “complaint.”</p>

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

<p>Appeal from the Circuit Court of Marion county; the Hon. Am:os Watts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jefferson comity; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

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

<p>1. Service of process on railroad company. Service of process on a railroad company, under the Practice Act in force July 1, 1872, can only he hy leaving a copy with the proper person, and can not he hy reading the same.</p> <p>2. Same—must he on president of railroad, company, if he can he found. Where the return of the officer states that he read the process to a station agent (naming him) of the defendant, the president and secretary not being residents of the county, it is defective, both because it shows attempted service by reading instead of by copy, and because it does not show that the president could not be found in the county; the fact that he was not a resident of the county, does not exclude the idea that he might have been found therein at the time of service.</p>

<p>1. Amendment—when merely formal, may properly be allowed without terms. The Practice Act of 1872 allows amendments at any time before final judgment, either in form or substance, on proper terms, and where a merely formal amendment of a summons is made, it is discretionary with the court, and proper not to impose terms.</p> <p>2. Where a summons fails to name the form of action, an amendment by inserting the words “in an action of assumpsit,” is properly allowed, and is merely formal.</p> <p>3. Summons—its requisites. A summons which fails to name the form of action, but which informs the defendant that he is sued, by whom, in what court, to what term, and the amount of damage claimed, is as effectual as if it named the form of action, and the fact of the amendment of such a summons, after service, by inserting the name of the form of action, would not be cause for quashing the summons on the ground of a variance between it and the copy served on defendant.</p> <p>4. Pleading—of an emenment of the indorsement of a note. In declaring upon an indorsed promissory note, an averment that the payee indorsed the note to the plaintiff is sufficient, without averring a delivery. The averment that the pajme indorsed the note to the plaintiff imports a delivery.</p> <p>5. An averment that the payee of a promissory note indorsed it, imports that he put his name on it in writing, and delivered it to the indorsee, as there can be no indorsement except by the legal holder’s name being on the instrument, and it can not be complete without a delivery.</p>

<p>Equity pleading. Although a case is so defectively made hy a hill in chancery that the court can not fully comprehend it, and pronounce upon it with confidence, still, if the court can see, from what is stated, that there is equity in the bill, it is error to sustain a demurrer to the whole bill, for want of equity.</p>

<p>Appeal from the Circuit Court of Saline county; the Hon. Andrew D. Huff, Judge, presiding.</p>

<p>1. Officer—when Ms official character must be proved. Where a defendant in a replevin suit sets up the defense that he was a constable, and took the properly under an execution in his hands against the owner of the property, and the direct question is raised as to whether he was a constable or not, he must show that he was a constable de jure; evidence that he was an acting constable is not sufficient.</p> <p>2. Evidence—justification by officer under process. The general rule is, that an officer may justify his seizure of property under an execution if it is regular on its face, and appears to have been issued by a court having competent jurisdiction, without making proof of the judgment on which it was issued.</p>

<p>Appeal from the Alton City Court; the Hon. Henry S. Baker, Judge, presiding.</p>

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

<p>Railroad company—only liable for stock killed in cities where negligence is shown. Where stock is killed, hy a railroad company at a place where the law does not require the company to fence its road, the party seeking a recovery must prove that the killing of the stock was caused through the negligence of the company; and where the proof shows that the stock was killed within the limits of a city, and there is no evidence of negligence on the part of the railroad company, no recovery can he had against it.</p>

<p>1. Jury—challenging the arrayi The practice is, that there can be no challenge of the array till first there is a full jury.</p> <p>2. Presumption—always in frnor of action of the court. The presumption is always in favor of the action of the court below, in a suit at law, and the party alleging error must show it by the record; and where the record does not show that any evidence was offered in support of a motion to quash the panel of jurors, on a challenge of the array, the motion was properly denied.</p>

<p>1. Intoxicating liquors—statute in relation to sale of, should he strictly construed. The act in force July 1, 1872, entitled “An act to provide against the evils resulting from the sale of intoxicating liquors in the State of Illinois,” is of a character highly penal, providing a right of action unknown to the common law, in which the party prosecuting has a decided advantage, and. the act should receive a strict construction.</p> <p>2. Same—exemplary damages. A party, suing under the statute to provide against the evils resulting from the sale of intoxicating liquors, can not recover exemplary damages, without first proving, to the satisfaction of the jury, that she has sustained actual damages.</p> <p>3. Same — the fact that sale was made hy servant, in violation of master's orders, may he considered in mitigation of exemplary damages. In a suit by a wife against one for selling intoxicating liquors to her husband, if the defendant, in good faith, had forbidden his bar-tender to sell or give liquors to the husband of plaintiff, and the bar-tender wilfully disobeyed him without the defendant’s connivance, such fact would be proper to be considered in mitigation, not of the actual damages which may have been caused, but of exemplary damages claimed.</p> <p>4. Same — the wife's right of action, to what it extends. The statute in relation to the sale of intoxicating liquors gives the wife a right of action only in cases where, by the selling of liquors to a drunken husband, she has been injured in person or property or means of support; and where no injury in either of these respects is proved, no recovery can be had.</p>

<p>Appeal from the Circuit Court of Pulaski county; the Hon. David J. Baker, Judge, presiding.</p>

<p>1. Widow's awabd—efect of ante-nuptial contract. The special allowance made hy statute for the widow of a deceased person is as much for the advantage of the children of the deceased as for his widow, and where there are such children residing with the widow, she has no power to release it, and it can not, in such case, be affected hy an ante-nuptial contract.</p> <p>2. An ante-nuptial contract provided that the property of the husband and wife should he kept separate, and held and enjoyed hy each separately, in the same manner as if they had remained unmarried, and upon the death of either party, his or her real estate and personal property should pass to his or her heirs, executors and administrators, free from all claims of the survivor: Held, that the effect was to debar the wife of dower in her husband’s real estate, and prevent her from taking any portion as hen- under the statute, hut that it did not deprive her of the right to the specific articles of property allowed hy the statute in all cases for the benefit of the widow and family of a deceased person.</p>

<p>1. Failure of consideration—re-conveyance by purchaser to mail of defense. Where a will directed that all the real estate of the testator should be sold by his executors, and a deed or deeds'executed by them to the purchaser or purchasers, a deed executed hy such executors which purports to convey their own interest only, whilst it might, for that reason, be defective, would still convey an equitable estate in the land, which the purchaser would be hound to re-convey before he could make a defense of failure of consideration against a note given for the purchase money of the property so conveyed.</p> <p>2. Evidence —proof of want of title. A judgment of recovery in ejectment, in favor of a stranger against a defendant in possession, is not of itself proof of want of title in the grantor of such defendant, in a suit by the grantor upon a note given by the defendant for the purchase money of the premises.</p>

<p>1. Deed—of the habendum clause. The habendum clause in a deed can not perform the office of divesting the estate already vested by the deed, and is void if it is repugnant to the estate granted.</p> <p>2. But where no estate is mentioned in the granting clause, then the habendum becomes efficient to declare the intention, and it will rebut any implication which would otherwise arise from the omission in this respect in the preceding clause.</p> <p>8. Where the granting clause in a deed merely describes the property, and does not define the nature or character of the estate granted, and is not followed by language assuming to supply what is thus omitted, it results, by legal implication under tire statute relating to Conveyances, that the estate conveyed is a fee; but where the habendum describes what estate is conveyed, it does not contradict the language of the granting clause, but simply supplies what is omitted therefrom, and removes all necessity for resorting to implication to ascertain the intention of the parties.</p> <p>4. Same—what character of estate passes. A. deed whereby certain land is granted to one without defining the estate, but in the habendum clause the estate is limited to her during her natural life; with a remainder to her husband, naming him, and in case of his death before the death of his wife, then to his heirs at law, creates a life estate in the wife, with remainder in the husband in fee simple absolute.</p> <p>5. Tenancy by the entirety—arises only when deed is to husband and wife jointly. Where land is conveyed to a wife for life with remainder to her husband, and, in case of his not surviving her, to his heirs, the wife can not, on the husband’s death, take the whole by right of survivorship, as in the cases of Mariner v. Saunders, 5 G-ilm. 124, Lux v. Hoff, 47 Ill. 425, and Strawn v. Straion, 50 Ill. 33, for the reason that those cases only apply where the fee has vested in the husband and wife jointly.</p>

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

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

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

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

<p>Appeal from the Circuit Court of Jackson county; the Hon. Monroe C. Crawford, Judge, presiding.</p> <p>This was an action, brought by the administratrix and administrator of James Goddard, deceased, against the Illinois Central Bailroad Company, to recover damages on account of the death of said deceased, caused by the alleged negligence of the defendant, in not ringing a bell or sounding a whistle when its cars were ■ approaching a public road crossing where said deceased was run over and killed.</p>

<p>1. Chattel mortgage—;failure of mortgagee to exercise Ms right of election to declare a forfeiture, does not release the lien. Where a chattel mortgage provides for the property remaining in the possession of the mortgagor until the maturity of the mortgage debt, unless such property shall be in danger of being levied on, etc., in which case the mortgagee shall be entitled to and may take possession, etc., the right thus conferred upon the mortgagee is a mere right of election, and his failure 'to exercise it can not, in the least, affect other parties, or release the lien of the mortgage.</p> <p>2. Same—permitting possession to remain with mortgagor—when fraudulent and when not. Where the mortgagee of personal property permits the possession to remain with the mortgagor after his failure to comply with the express terms of the mortgage, it has been held to be a fraud per se, and not subject to explanation; but such is not the case where the mortgagee suffers the property to remain in the hands of the mortgagor when he has a mere election to declare a forfeiture. In the one case the forfeiture is absolute, in the other it depends upon the pleasure of the mortgagee.</p>

<p>1. Guardian—suit against, for board and clothing of ward. A testator gave to his widow, by his will, money and the rents and profits of land, in lieu of dower, incumbered with the provision that she should maintain and support his children. She renounced the provisions of the will, and had dower assigned, married again, and, with her second husband, resided upon the land set off to her for her dower: Held, in a suit by the second husband against the guardian of the children, for their board and clothing, that he was in no way bound or affected by the will or the relinquishment of the widow, and was not thereby precluded from maintaining his suit.</p> <p>2. Same—may set off labor of ward against claim for boa/rd and clothing. In a suit against a guardian for board and clothing furnished his wards, he may prove that the wards have worked for the plaintiff, and the value thereof, and set it off against his claim, but the jury can not take into consideration any labor that such wards may do for the plaintiff in the future, and for the court to instruct them that they may, is error.</p> <p>3. Step-eather—right to pay for support of step-children. When a man marries a widow with children, if he assumes the relation of father to the children, and, as such, provides them with board and clothing, and, in turn, has their labor, and has no contract with their guardian, he can not recover for the support thus furnished.</p> <p>4. But if, at any time, he had a contract with their guardian in regard to the keeping of the wards, he would he entitled to recover on that contract; or if, at any time, he should refuse longer to keep the children without compensation, and should so notify their guardian, and the guardian should neglect or refuse to provide a place for them, or make a contract with the step-father in regard to compensation, then he would be entitled to recover reasonable pay for the keeping after such notice, deducting the value of their services.</p> <p>5. Instructions—men if erroneous, will not ordinarily rmerse, unless all given appecur in the record. This court will not ordinarily reverse on account of erroneous instructions, unless the record contains all those given, but where the instructions given contain errors that could not be cured by others, it may be proper to reverse on account of erroneous instructions, although all that were given are not in the record.</p>

<p>1. Constitution op 1870—construction. The first fiscal quarter contemplated hy the provisions of section 18, article 4, of the constitution of 1870, did not end until the adjournment of the session of the General Assembly whose members were elected at the regular election in 1873, that being the next regular session after the adoption of the constitution.</p> <p>3. Sections 3 and 4 of the act of February 13,1849 (Sess. Laws 1849, p. 77), are in the nature of standing appropriations for the purposes therein specified, and they did not expire by constitutional limitation until the end of the first fiscal quarter after the adjournment of the regular session of the General Assembly which commenced in January, 1873.</p> <p>3. State indebtedness.—right of creditor to Auditor’s warrant. If the State has received the services or property of an individual under a contract, there would seem to be no doubt that it would be the duty of the Auditor to draw a warrant for the sum due, and of the Treasurer to countersign it and deliver it to the person entitled to receive it, whether there be money in the treasury or not. Hence it is not a sufficient answer to a petition for a mandamus to compel the Auditor to issue such warrant, to say that there is no money in the treasury with which to pay it if issued.</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

<p>Will—a devise of land previously sold but not conveyed, passes the purchase money due on the land. Where a testator devises land, the legal title to which is in him, but which he has sold and given to the purchaser a bond for a deed therefor, the purchase money, when paid by the purchaser, will belong to the devisee.</p>

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

<p>Mortgage—mistake in, description—rights of purchaser. A man who owned two tracts of land, one being his homestead and the other a piece of timber, sold the timbered land, but, by mistake, conveyed the homestead. The purchaser took possession of the timbered land, and sold it to a third party, but conveyed by the description in the deed to him, being the homestead of the original owner, upon which such owner was still residing. The second purchaser executed a mortgage upon the same land conveyed to him, which mortgage contained a power of sale. After the execution of this mortgage, the mistake in the various conveyances was, for the first time, discovered. On the maturity of the mortgage debt, the mortgagee gave notice of sale under the mortgage, and, at the sale, the original owner of both tracts of land became the purchaser, and, as part of the purchase price, conveyed to the mortgagee the timber land which was originally sold and intended to be conveyed by him: Re Id, on a bill by the mortgagor to set aside the sale, that whatever might be his rights as to the timber land, he had no grounds for equitable relief as to the land sold under the mortgage.</p>

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

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

<p>1. Spirituous liquors—license for sale thereof—by whom. "Where the legislature has declared that incorporated towns shall have the exclusive privilege to grant license within the incorporated limits of the town, the county-authorities have no right or power to interfere in any manner whatever with the granting of license.</p> <p>2. Incorporated towns have the power to declare the sale of spirituous liquors within their limits shall be deemed a nuisance, and punished as such; they have the exclusive privilege of granting license to sell such liquors, and to prescribe the terms upon which they may be sold.</p> <p>3. The fact that an incorporated town sees proper not to grant a license for the sale of spirituous liquors within its limits, does not confer power upon the county authorities to act in the matter, and a license issued by them is void.</p> <p>4. Appeal prom justice op the peace—waives all informalities. When a defendant files an appeal bond in the circuit court, he thereby enters his appearance and waives all defects in the process, the want of process, and in the service or want of service before the justice of the peace, and the circuit court can not dismiss the suit unless, upon hearing the evidence, it appears the justice had no jurisdiction.</p>

<p>Writ of Error to the Circuit Court of Shelby county; the Hon. Horatio jVL Vandeveer, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Perry county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Alexander comity; the Hon. David J. Baker, Judge, presiding.</p>

<p>1. AlleqatioNs and proof—as to joint liability of several in an action for tort. In actions for tort, where a joint liability is averred in the declaration against several defendants, it is not necessary to a recovery that the proof should show such joint liability. It may fail to establish any of the averments as against a portion of the defendants, yet, if the averments are proved as against the other defendants, or any of them, a recovery can be had against such as are shown to be guilty.</p> <p>2. And this rule applies as well to a case where the tort is alleged to have been committed by the defendants through the means of an article of property which they jointly owned or were jointly using, as to a case where the tort is alleged generally to have been committed by the defendants.'</p>

<p>1. Wills. The construction of a will is a matter for the court, and should not be left to the jury.</p> <p>2. Same—legacy payable to one at the age of twenty-one years, goes to his administrator if he dies before he attains that age. Where a legacy of a certain sum of money is, by will, given to a boy, to be paid to him at the age of twenty-one years, and he dies before attaining that age, his administrator is entitled to recover the same when the time at which he would have attained that age, if living, arrives.</p>

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

Appear from the Circuit Court of Peoria county; the Hon. J. W. Cochean, Judge, presiding. This was an action of assumpsit, brought by Margaret Aubery and Wesley B. Harvey, administrators of the estate of F. W. Aubery, deceased, against John Bowman and Frederick Koozier, upon a promissory note. The opinion of the court states the facts of the case. Bowman, alone, appealed from the judgment of the court below.

Joseph E. Gary, Judge, presiding. This was an action of trover, brought by Lewis Stave against Edgar Loomis and Martin P. Eollett. The opinion of the court states the material facts of the case.

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah McEoberts, Judge, presiding.</p> <p>This was an action of covenant, by James Braidwood, James Eoe and James Eeuncie, against the Eureka Coal Company.</p>