Volume 74 — Illinois Reports

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

<p>1. Pleading and evidence. Evidence tending to prove payment may be introduced under the general issue.</p> <p>2. Surety — his right under deed of trust gimen to indemnify him. Where a surety on a note deposits with the holder a deed of trust executed by the principal to indemnify him against his liability as surety, and afterward, upon proceedings in bankruptcy against him, compromises with the holder by giving other notes for a less amount, with personal security, or is discharged from his liability on the original note, he will be entitled to have the proceeds of a sale under the deed of trust applied to the payment of the notes so given in discharge of the original note.</p>

<p>1. Habeas corpus—prisoner not discharged for mere error in order of commitment. If the judgment upon which a prisoner is held in custody is merely erroneous and subject to be reversed on writ of error, he will not be discharged upon habeas corpus. But if the court had no power or jurisdiction to render such judgment, the prisoner should be discharged on habeas corpus.</p> <p>2. Amendments — of record at a subsequent term of court. Courts have no power or jurisdiction to amend their record of a judgment in a criminal case, at a subsequent term of court.</p> <p>3. Where a defendant in a criminal case has suffered punishment according to a legal sentence, a second judgment in the same case, even if rendered at the same term of court, is void.</p> <p>4. Criminal law — verdict of guilty as to part is an acquittal as to balance of the counts in the indictment. A verdict of guilty as to a part of the counts in the indictment is an acquittal as to the other counts, and in such case it is necessary that the verdict should specify upon which of the counts the defendant is guilty.</p> <p>5. It would be error to sentence" a prisoner upon counts other than those upon which he is found guilty.</p>

<p>1. Mandamus — will not be awarded in doubtful cases. The writ of mandamus is one of the extraordinary remedies provided by law, and should never be awarded unless the party applying for it shows a clear right to have the thing sought by it done and by the person or body sought to be coerced. In doubtful cases it should not be granted.</p> <p>2. The petitioner in an application for a mandamus, like a plaintiff in an ordinary case, is bound to state a case prima facie good.</p> <p>3. Taxation to pay donation to railroad — certificate of election — by whom,. When the law requires the trustees of a township to certify the result of an election on the question of a donation to a railroad company, to the county clerk, a petition for a mandamus to compel the county clerk to extend a tax to pay such donation, which alleges that a majority of the votes cast were in favor of such donation, and that that fact was certified by the town clerk to the county clerk, and that the town clerk was the proper officer to so certify, is bad on demurrer.</p> <p>4. Election in respect to donation—identity of proposition voted upon. And where the petition shows that two propositions were submitted to the people of a town upon the question of a donation to a railroad company, one for the levying of a tax, and the other for issuing bonds to pay such donation if made, and that a majority of the votes cast were in favor of “ said proposition,” a mandamus to compel the county clerk to extend the tax mentioned in the first proposition will not be awarded.</p>

<p>1. Will—what proof necessary to admit to probate. The statute requires a party producing a will for admission, to probate in the county court to prove nothing but its formal execution and that the testator was of sound mind and memory at the time of its execution.</p> <p>2. The statute does not require that a will should be signed in the presence of two or more credible witnesses. It is sufficient if two attesting witnesses heard the testator acknowledge that he signed it.</p> <p>3. An instruction that signing and acknowledging a will is not sufficient to entitle it to probate, but that it must further appear that it was the actual deed of the testator, requires more than the statute, and is for that reason wrong.</p> <p>4. Same—testimony of subscribing witness need not be in words of the statute. It is not necessary that a subscribing witness to a will should state on oath in so many words that he believed the testator to be of sound mind and memory. It is sufficient if he so declares in legal effect.</p> <p>5. Same—meaning of sound mind and memory. If the testator’s mind is sound, although his memory may be impaired, he is of sound mind and memory in the sense in which the phrase is used in law, and, in order to destroy the capacity of a person to make a will on account of failure of memory, the failure must be total or extend to his immediate family and property.</p> <p>6. If the mind and memory of a testator are sufficiently sound to enable him to know and understand the business in which he is engaged at the time of executing his will, then he is of sound mind and memory within the meaning of the law.</p> <p>7. On the trial of the question as to whether a will shall be admitted to probate, an instruction that if the jury believe, from the testimony of the subscribing witnesses, that the testator was of unsound mind or memory, they should find against the will, makes an unwarrantable distinction between “sound mind" and “sound memory,” calculated to mislead the jury, and should not be given.</p> <p>8. Same — what facts will invalidate a will is a question of law, and not to he left to a jury. What acts of fraud or improper conduct in procuring the execution of a mil, will invalidate it, is a question of law, and a jury should not by an instruction be left at liberty to invalidate a will for what according to their own notions may be improper conduct sufficient for that purpose.</p> <p>9. Same—question of capacity to make a will left to a jury most he general. The question as to the capacity of a testator, when submitted to a jury, should be, had he the capacity to make a will, not had he the capacity to make the mil produced.</p> <p>10. Same—undue influence over testator implies something wrongful. It is not unlawful for one by honest advice or persuasion to induce a testator to make a will or influence the disposition of his property by will. To vitiate a will on account of undue influence it must appear that there was something wrongful, a species of fraud perpetrated.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. George W. Pleasants, Judge, presiding.</p>

<p>1. Agent and principal—when principal liable for tort of agent. If a tort is committed by an agent in the course of his employment while pursuing the business of his principal, and is not a willful departure from such employment and business, the principal is liable although done without his knowledge.</p> <p>%. Negligence—putting ea/r in motion without means of stopping it. It is negligence for persons engaged in loading cars on a railroad track to put a car in motion without making any provision for stopping it, or examining to see whether the brakes are in order, or examining to see whether any person is on or about other cars on the same track with which the one put in motion will necessarily collide, and if injury results to one who is guilty of no negligence himself, the parties putting the car in motion will be liable.</p>

<p>1. Lien of a money decree. Where a decree finds a specific sum of money due from one party to another, and orders a sale of specific property, and in case not enough is realized from such sale to pay the amount that an execution issue, such decree is a money decree, within the meaning of the fourteenth section of the chapter entitled Chancery, of the Revised Statutes of 1845, and becomes a lien upon the real estate of the party against whom it is rendered, the same as a judgment at law.</p> <p>2. The lien of a money decree, like that of a judgment at law, only continues for one year after it is rendered, unless an execution is issued within that time.</p>

William Browit, Judge, presiding. This was an action of assumpsit, brought by Henry Mulholland against Moses Bartlett, upon the written promise set out in the opinion. A trial was had, resulting in a verdict and judgment for the defendant.

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

<p>Writ or Error to the Circuit Court of Peoria county; the Hon. Joseph W. Cochran, Judge, presiding.</p>

Edwht S. Lelaud, Judge, presiding. This was an action of trespass, by the appellee against the appellant, brought in the circuit court of Bureau county, and taken by change of venue to La Salle county. The material facts of the case are fully stated in the opinion of the court.

<p>Writ of Error to the County Court of Rock Island county; the Hon. Samuel S. Guyer, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Iroquois county; the Hon. H. J. Pillsbury, Judge, presiding.</p>

<p>1. Insurance — description of property in 'policy. Where an application is for insurance “ on hay in the stack and in the field,” and the policy issued upon the application is upon “ hay in stack within fifty feet of stable,” the discrepancy is not such as to entitle the insured to rescind the contract of insurance.</p> <p>2. Same — construction of policy. Where a policy of insurance refers to an application, and by apt words makes the application a part of the policy, the two instruments will be construed together.</p>

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

J. W. Cochrane, Judge, presiding. This was an action on the case by Buby Van Patten, administratrix of the estate of Matthew B. Van Patten, deceased, against the appellant. The material facts of the case are stated in the opinion of the court. The jury found for the plaintiff, and assessed her damages at $5,000, upon which judgment was rendered, the court refusing to grant a new trial.

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

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

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

<p>New trial in ejeotment, under the statute. When a motion is made by a party for a new trial, in open court, on the same day a judgment is rendered in an ejectment suit, and he pays all the costs within two days thereafter, and during the same term of court, he has done all he is required to do to entitle him to a new trial under the statute, and the court has power to vacate the judgment and award a new trial in such case, even after the expiration of the period limited by the statute, and should do so at the request of the party.</p>

E. S. Williams, Judge, presiding. This was a bill in chancery, by Michael Weishaar against Nicolaus Ambre, to set aside the will of Barbara Ambre. The opinion states the material facts.

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

<p>1. Common carrier—what constitutes. One who for hire carries passengers and their baggage, and also baggage alone, for all persons choosing to employ him, from, to, and between railroad depots and hotels, and other places in a city, is a common carrier of goods.</p> <p>2. Same — of goods, liable for all losses not inevitable. A common carrier of goods, who receives and undertakes to carry a trunk from a railroad depot to the owner’s residence, is answerable for all losses, except such as are inevitable, that may occur whilst the trunk is in his possession, and until it is delivered to the owner.</p> <p>3. A common carrier of goods who receives and undertakes to carry a trunk for one not a passenger with such carrier, is responsible for the delivery of the trunk and its contents, notwithstanding the contents consist of articles not usually carried as baggage, unless the owner has been guilty of some fraud or deception.</p>

<p>1. Assumpsit — when it lies for money had and received. An action for money had and received will lie whenever a defendant has received money which in justice belongs to the plaintiff, and which he should, in justice and right, return to the plaintiff.</p> <p>2. Where the mortgagor in a chattel mortgage sells the mortgaged property on a credit, the proceeds of which sale are to belong to the mortgagee when collected, and after the death of the mortgagor, his administrator collects the purchase money and deposits it with one who is at the time apprised of these facts, an action for money had and received will lie at the suit of the mortgagee against the party so receiving the money on deposit.</p>

<p>1. Books of account—presumed to be correct, as between partners. Partnership books of account are presumed to contain a true history of the business and a true record of the transactions between the partners. In the absence of proof to the contrary, reliance is properly placed on such books in stating the partnership account.</p> <p>2. Partnership—right of pa/rtner to credit for interest paid. Where one is taken as a partner in a business on account of his financial credit, and to raise money to prosecute the business, and he is credited by the book-keeper for the interest paid by him in procuring loans, and the other partner having examined the books, makes no objection to such entries, they may properly be allowed in stating the partnership account.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Hath aniel J. Pillsbury, Judge, presiding.</p>

<p>1. Prescription—easement or right to overflow land. A right to overflow land, like easements in general, may be acquired by an uninterrupted and adverse enjoyment for twenty years, or for the period of time fixed by the statute of limitations for the right of entry upon lands.</p> <p>2. Injunction —party precluded from, after long acquiescence. Where the owners of land, which is overflowed by a dam, acquiesce in the erection of the dam, and permit the party erecting the same to make large expenditures in'the same and in building and maintaining a mill, and suffer the dam to be kept up for twenty-four years, their acquiescence for so great a time will preclude them from enjoining the rebuilding and repair of a part of the dam carried away.</p> <p>3. Statute construed — condemnation for mill. The provision in the statute relating to mills and millers, which prohibits the erection of a dam, etc., which will injure the health of the neighborhood by the overflow of lands, has application only to proceedings had under that statute, and does not apply on bill for injunction to prevent the repair of a dam, long before erected.</p> <p>4. Injunction — nuisance affecting public health. For a threatened inj ury to the public health, as by the erection of a dam and the consequent overflow of lands, a court of equity will not interfere at the suit of a few private individuals, unless it be shown in the bill that their health is or will be directly affected by the nuisance.</p>

<p>1. Promissory note—when it becomes obligatory. The defendants, under an agreement with the plaintiff, that they would sign their father’s note to the plaintiff as sureties, executed a note and delivered it to the plaintiff, who agreed to get the signature of the father of the defendants, who was to be the principal in the note. The plaintiff never presented the note to defendants’ father for his signature, nor did the father ever sign it: Held, that as between the parties, the note was not obligatory, not being signed by the father.</p> <p>2. Consideration — want of. Where a note was signed by two persons as sureties for their father, and delivered to the payee who undertook to get the father’s signature but failed to do so, it was held that the note was given without consideration and could not be collected by the payee.</p>

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

Josiah McRoberts, Judge, presiding. This was a suit brought by the appellee against the appellants, for the recovery of money paid by him under a verbal contract for the purchase of land. The facts are stated in the opinion.

<p>Writ of Error to the Criminal Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.</p>

<p>1. Judicial sale—not affected by reversed of decree. The reversal of a decree construing a will as authorizing the executors to sell and convey land at private sale, on mere errors] in the proceedings, will not avoid a sale made by the executors to a bona fide purchaser for value, if the court rendering the decree had jurisdiction of the subject matter, and of the persons of those interested.</p> <p>2. Jurisdiction — depending on term of court being held. Where executors gave notice of applying to the pircuit court on a certain day in the next term, being the fourth day, for an order to sell lands to pay debts, etc., and filed their petition before the first day of such term, but no court was held at such term, it was held that the proceeding was continued by law, and the court had jurisdiction at a succeeding special term to render a decree.</p> <p>3. Judicial sale—presumption in favoi' of jurisdiction. After the lapse of over twenty years from a sale and conveyance of land by an executor made under a decree of a court of competent jurisdiction, for a full consideration to one buying in good faith, every reasonable intendment will be indulged in favor of the jurisdiction of the court making the decree, rather than to hold the sale invalid, and the action of the court will be referred to its statutory or general jurisdiction, as may be necessary to maintain its jurisdiction.</p> <p>4. Process—service in chancery cases. An indorsement of service of a chancery summons, “ executed by leaving copy with A. B. and C. (the defendants), this,” etc., is sufficient to confer jurisdiction of the persons of the defendants, its obvious meaning being that the officer delivered a copy to each of the defendants.</p> <p>5. Administrator’s sale—power of court to order. A court of equity has no original jurisdiction to order the sale of real estate of a deceased person to pay debts, or for any other purpose, so as to bind the infant heirs’ legal estate. The power is derived ‘from legislative authority, and does not exist except in cases where the statute expressly confers it.</p> <p>6. Chancery jurisdiction—to construe wills. When purely legal titles are involved, and no other relief is sought, a court of equity will not assume jurisdiction to construe a will, but will remit the parties to their remedies at law; but if any trust is reposed in the executors, they may seek the aid and direction of a court of equity in the management or execution of the trust.</p> <p>7. Same — when executor has a trust. Where, by the terms of a will, the executors are charged with the administration of the assets of the estate differently from that directed by the statute, this will create in them a special trust, and in case of doubt as to the mode of its execution, a court of equity will assume jurisdiction on application by the executors for a construction of the will.</p> <p>8. Purchaser—not affected by application of purchase money. Where power is given by will to executors to sell real estate to raise funds with which to pay legacies, as the legatees become of age, a sale and conveyance made after one of them arrives at majority, being in the due execution of the trust created, will be valid, even though the proceeds are applied in the payment of the testator’s debts. The purchaser is not required to see to the proper application of the purchase money.</p>

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

<p>1. Juries—exemption from service, a mere gratuity to the citizen. The duty of serving on juries is one of the inseparable incidents of citizenship, and can be exacted whenever and however the sovereign authority shall command, and all exemptions from such service are mere gratuities, which may be withdrawn at the pleasure of the law-making power.</p> <p>2. Same—only active members of fwe companies are exempt from service. Under the general law in force February 11th, 1874, the only exemption from service on juries on account of service in the fire department is of active members of that department.</p> <p>3. The general law on the subject of juries in force February 11th, 1874, repealed all local and special laws on the subject.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. S. M. Moobe, Judge, presiding.</p>

<p>1. New trial—circuit judge should wward when vm'dici is against the weight of evidence. A circuit judge, who tries a case and sees the witnesses on the stand, has superior opportunities of estimating the value of the evi. dence, and the principal responsibility for the correctness of the verdict is upon him, and if the verdict is against the weight of the evidence, it is his duty to award a new trial.</p> <p>3. Error will not always reverse. Even though evidence not strictly admissible is introduced, yet if the court can see that such evidence could not have misled the jury, and that their verdict is right, independent of such evidence, the judgment will not be reversed.</p>

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

Eeastus S. Williams, Judge, presiding. This was a bill in chancery, exhibited by William H. Wachter against Cyrus P. Albee, in his lifetime, to settle a partnership and state an account between the parties. Before the decree the defendant died, and Harriet Albee, his administratrix, was made defendant in his place. From the final decree in the case the administratrix appealed.

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

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

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

<p>Appeal from the Circuit Court of Marshall county; the Hon. John Burns, Judge, presiding.</p>

<p>Contract—right to damages for delay caused by the party claiming them. Where a written contract for the building of a stable provides that the work shall be completed by a specified day, and that the contractor shall pay the sum of thirty dollars a day for each day’s delay after the date mentioned, the employer will have no right to exact damages for a delay caused by his own act in stopping the work.</p>

<p>1. Decree — construed as to whether sale under passed title of one or two defendants. Where a creditor’s bill sought to subject the equitable interest of A and B in land to sale for the payment of their debts as members of a firm, and the decree ordered the sale of the property as prayed for, and directed, that the master “ upon the sale of said premises, or any part thereof, make, execute and deliver to the purchaser or purchasers thereof a deed of conveyance, conveying to the purchasers thereof all the right, title and interest in said premises conveyed by the said A, in and by the several trust deeds set forth in said original and cross bills herein,” etc.: Held, that the direction to the master could not have the effect to make the decree for the sale of A's interest only, but that the reference to the deeds of trust was simply to identify the property to be sold, and that a purchaser under said decree acquired the interest of both A and B, and succeeded to their equitable right to enforce the execution of a deed from the party holding the legal title.</p> <p>2. Same — whether made in term time or in vacation. Where a decree is entitled as of a certain term of court, and is so certified in the record, this will be conclusive evidence that the decree was made in term time and not in vacation, and the record cannot be impeached.</p> <p>3. Chancery—evidence not necessary as to defendant defaulted. Where an adult defendant is in court and is defaulted for failing to answer in pursuance of a rule of court, a decree may be rendered against him without evidence ; but when the decree recites that the cause was heard upon the pleadings and proof, and also upon the agreement of the parties filed, the recital of a hearing upon proofs is conclusive in a collateral proceeding.</p> <p>4. Estoppel—by decree rendered on default. Where a creditor’s bill is filed to subject to sale the equitable title of A and B in real estate, owned by them under a contract of purchase from C, and the cross-bill filed in the cause, C being a party duly served, alleges full payment of the purchase money by A and B to C, and C suffers a decree against him by default, and the interests of A and B are sold under the decree, on bill by the purchaser against C to compel a conveyance of the legal title, the latter will be estopped by the default from asserting that he has any claim on the land'for purchase money, or for any other cause.</p>

Arthur A. Smith, Judge, presiding. This was an action of assumpsit, brought by Smith against. the appellant, to recover damages for the breach of an alleged contract of the defendant as a common carrier. By agreement the cause was tried by the court without a jury, who rendered judgment in favor of the plaintiff for $1,554.51.

<p>1. Homestead — whole ground exempt. The intention of the legislature, in enacting the homestead exemption law, was not to save a mere shelter for the debtor and his family, but it was to give him the full enjoyment of the whole lot of ground exempted, to be used in whatever way he might think best for the occupancy and support of his family, whether in the way of cultivating it, or by the erection of buildings upon it, either for carrying on his own business or for deriving income in the way of rent.</p> <p>2. ' When a debtor owns a lot upon which he resides, and upon which he has a mill, shop or other building, the whole property is his homestead, and as such exempt from execution to the extent of one thousand dollars.</p> <p>3. Where the homestead of a debtor is sold on execution without any division, although it may be worth more than one thousand dollars, yet the purchaser acquires no title to any part of it which he can make available in an action of ejectment, either as plaintiff or defendant, whatever may be the rule in equity.</p>

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

<p>1. Conflict of laws—power to enforce penal laws not of this State. The courts of this State cannot enforce the criminal or penal laws of another State, or of the United States.</p> <p>. 2. The courts of this State will not entertain jurisdiction in a suit by a corporation created and doing business in another State, against a National bank organized under the laws of the United States, for the recovery of a penalty under an act of congress for receiving interest over and above the rate allowed by the laws of the State where the bank is located and transacts its business.</p> <p>3. Jurisdiction—of State courts. The courts of this State derive all their powers from the constitution and laws of this State, and do not, nor can they derive any power from the laws of the United States or other source.</p> <p>4. Same—power of congress to confer. Under the constitution of the United States congress can not confer jurisdiction upon a State court, or any other court which it has not ordained and established,</p> <p>• 5. Same — State courts derive solely from State authority. The courts of this State have jurisdiction, under the power conferred by our constitution, over all persons and things within its borders, and when persons or corporations, without reference to where or when the latter are created, come into this State, they are within the jurisdiction of our courts, which is then exercised by virtue of such power, and not by virtue of any congressional action or federal grant of power.</p> <p>6. Our courts will exercise jurisdiction in suits by or against corporations, whether created by act of congress or by the laws of another State, and whether doing business in this or some other State, in all cases except where they will refuse to entertain jurisdiction in a suit between natural persons.</p>

John G-. Bogers, Judge, presiding. This was an action of trespass guare clausum fregit, brought by Joseph Bell- against Julius Bauer, Herman Bauer, William Swinburn and John B. Hatton. The opinion of the court states the substance of the material facts of the case. The two Bauers, alone, appealed.

<p>Writ oe-Error to the Criminal Court of Cook county; the . Hon. William W. Farwell, Judge, presiding.</p>

Arthur A. Smith, Judge, presiding. This was an action on the case, brought by Samuel A. Brown against Edwin E. Kendall, to recover damages sustained by the unskillful treatment of a fractured leg of the plaintiff by the defendant, as a surgeon. A trial was had in the court below, resulting in a verdict and judgment of $1,375.17$, from which judgment the defendant appealed.

Writ oe Error to the Circuit Court of Cook county ; the Hon. W. W. Heaton, Judge, presiding.

Joseph E. Gary, Judge, presiding. This was an action of trespass, by Richard D. Kirby against Cyrus F. Miller, A. Swick, Henry Sears, E. B. Sears, and E. W. Beattie. The trespass was the levy of an execution issued upon a judgment in favor of the two Sears and Beattie, partners under the name of Henry Sears & Co., and against Charles G. French, a former owner of a part of the goods.

<p>1. Carried—burden of proof of loss or non-delivery. In an action against a carrier, where the loss or non-delivery of goods is alleged, the plaintiff must give some evidence in support of the allegation, notwithstanding its negative character, but slight evidence will be sufficient.</p> <p>2. Same —plaintiff not required to show non-delivery by a preponderance of evidence. In an action against a carrier for failing to deliver goods shipped, the plaintiff is not bound to show non-delivery by a preponderance of testimony. Slight evidence of that fact will be sufficient to shift the burden of proof upon the carrier.</p> <p>3. Same — measure of damages. The measure of damages in case of the failure of a carrier to deliver goods according to contract, and which are lost, is their market value at the time when and the place where they should have been delivered, and such value is purely a question of fact for the jury.</p>

<p>1. Pbactice —appeal from county to circuit cowrt. An appeal from the county to the circuit court can be tried alone on the record. The circuit court can not try the case de novo, either in whole or in part, but takes the record as presented.</p> <p>2. Same — transcript of county court, matter of record in circuit court on appeal. When a record of the proceedings is filed in the circuit court, it becomes a matter of record in that court, and being a matter of record then no bill of exceptions is necessary to get it before this court, but only a certified transcript.</p> <p>3. Same—Mil of exceptions in circuit court on appeal from county court. Affidavits, notices, etc., made in the county court are not a part of the record, unless made so by bill of exceptions, and cannot be considered in the circuit court, nor is it proper for the judge of the circuit court to make them a part of the record of that court by bill of exceptions.</p> <p>4. Practice in Supreme Cotjrt—assignment of errors. The failure or refusal of a judge to sign a bill of exceptions, cannot be assigned for error, nor considered in the Supreme Court. The remedy, where a judge wrongfully refuses to sign a bill of exceptions, is by mandamus.</p>

<p>1. Failure of consideration—plea of—its requisites. A plea of total failure of consideration must show all the elements entering into the consideration, and a failure of each and every part of it distinctly averred with as much precision as the allegations of a declaration.</p> <p>2. A plea that the consideration of a note was the sale of an interest in a certain patent right, which has wholly failed, the patent being void, because the result therein claimed to be accomplished could not be accomplished, is bad on demurrer as failing to show what the result claimed to be accomplished was, and wherein it had failed.</p>

William W. Heaton, Judge, presiding. This was a creditor’s bill filed by the First National Bank of Morrison, against Thomas Guffin and Sarah Guffin. The opinion states the material facts of the case.

Joseph Sibley, Judge, presiding. J. & A. Boskowitz, the appellants, sued I. G. Baker & Bro., the appellees, upon the following contract, to wit: “ We, J. & A. Boskowitz, of Chicago, Illinois, have this day purchased of I. G. Baber & Brother, of Fort Benton, Montana Ter., their entire collection of buffalo robes, amounting to 18,000 skins, and for which we agree to make a payment of $5,000 upon the signing of this contract, and upon delivery of the buffalo robes, to complete…

Josiah MoRoberts, Judge, presiding. This was an action of ejectment, by the appellant against the appellee, for the recovery of two lots in the city of Joliet, in Will county. The cause was tried by the court without a jury. The plaintiff claimed title under a sale of the lots in 1866 for the taxes of 1865. The court found for the defendant.

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

<p>1. Conveyance — to one and heirs of her body. A conveyance of land to an unmarried woman, to have and to hold unto her and the heirs of her body forever, vests in her an estate for life only, and creates a contingent remainder in favor of the heirs of her body who, when born, will take the absolute fee.</p> <p>2. Same — tenant for life cannot defeat estate of remainderman. A grantor who conveys to an unmarried woman real estate, to have and to, hold to her and to the heirs of her body forever, thereby deprives himself of all estate but a contingent reversion, dependent upon the grantee dying without having had issue, and it is not in the power of the grantee, by a reconveyance before issue .born, to defeat the contingent remainder in favor of such issue.</p> <p>3. Covenants for title. Where the owner of land conveys it to another and the heirs of her body forever, and the grantee, before having issue, reconveys to the grantor, he only acquires a life estate during the life of the grantee in the first deed, and if he again conveys the land with covenants that he is seized of a good, sure, perfect, absolute and indefeasible estate of inheritance in the law, in fee simple, his covenant is broken when made, and his grantee may sue and recover upon such breach, notwithstanding he may have been put into possession of the land under his deed.</p> <p>4. Measure of damages —for breach of covenant of warranty. Where there is a covenant in afdeed of conveyance of real estate, that the grantor, at the time of making the deed, was seized of a good, sure, perfect and absolute and indefeasible estate of inheritance in the law in fee simple, and the grantor has in fact only a life estate and a contingent reversion in the land, the grantee may, upon reconveying or tendering a reconveyance, sue and recover for breach of covenant, and in such case'the measure of damages is the amount of the consideration named in the deed, together with taxes paid on the land, and interest, less the value of rents received or which could have been received by the grantee from the land.</p>

Wbit of Error to the Circuit Court of Stephenson county; the Hon. Benjamtn B. Sheldon, Judge, presiding. This was a scire facias upon a recognizance entered into by one Thomas H. Needham, as principal, and Urban £). Meacham as surety, before Abraham T. Green, a justice of the peace, for the appearance of Needham before the circuit court to answer a charge for an assault with intent to commit a bodily injury, without stating upon whom or with what instrument.

<p>Appeal from the Circuit Court of Livingston county; the Hon. Nathaniel J. Pillsbury, Judge, presiding.</p> <p>This was an action of assumpsit, by the village of Dwight against Charles L. Palmer. The declaration contained only the common counts for money had and received, etc. On a trial there was a verdict and judgment in favor of the defendant. The opinion of the court states the material facts of the case.</p>

<p>1. Foreclosure—sale for part of debt not due. On foreclosure of mortgage the court may direct the whole mortgaged premises to be sold, if most conducive to the ends of justice in reference to the equitable rights of all parties, although a part only of the mortgage debt has become due; but the fact that the premises are a meager and scant security, and are going to ruin and decay, does not j ustify their sale for a debt not due.</p> <p>2. On bill to foreclose two mortgages, one of which embraces land not included in the other, and where the whole debt is not due, the decree found that the mortgagor was insolvent and the premises could not be sold in parcels without prej udice to the parties, when there was no allegation in the bill to admit such proof, and authorized a sale en masse for the whole debt due and to become due: Held, that the decree was erroneous.</p> <p>3. Same—of the decree for sale for debt not all due. If a sale of mortgaged premises is ordered for the entire debt, a part of which is not due, the decree should protect the rights of the mortgagor, so that in redeeming he will not be compelled to pay money before it is due under the contract.</p> <p>4. Same—sale of lands not embraced in. Where two mortgages are partly upon the same premises, but one including land not in the other, it is error to decree the sale of the land not embraced in one mortgage for its satisfaction, and thereby increase the .burden upon the premises in the other mortgage.</p>

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

<p>1. Mabbied women—power to contract. The right of a married, woman to engage in business in her own name with her separate property, necessarily implies the right to purchase goods with which to carry it on, and to bind herself by contract to pay for such purchases, and the law that authorizes this will compel her to abide by and perform such contracts.</p> <p>2. Same — notes by, when binding. If a married woman gives her promissory notes with her husband for goods bought by her as her own property, for her own use, in her own business as a saloon keeper, carried on by her in her own name, with her own means, and which were used by her in such business for her own benefit, without the interference of her husband, she will be liable to an action on the notes, notwithstanding her coverture.</p> <p>3. Demubbeb—admission of facts in pleading. By demurring to a pleading, such as a replication, the party admits the substantial facts alleged in the pleading demurred to, and no proof of them is necessary on a trial upon other issues.</p> <p>4. Judgment — on demurrer binding as an estoppel. A judgment on a demurrer is equally conclusive, by way of estoppel, of the facts confessed by the demurrer, as a verdict finding the same facts, and facts thus established can never afterward be contested between the same parties, or those in privity with them.</p> <p>5. Contbact — to extend time of payment. A contract to extend the time of payment of notes upon giving other notes secured by mortgage on good real estate, is not a defense to a suit on the original notes when the mortgage is objected to as upon land of no value and for want of title in the mortgagor, where these objections are not obviated or shown to be unfounded.</p>

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

<p>Writ oe Error to the Circuit Court of Rock Island county; the Hon. G. W. Pleasants, Judge, presiding.</p>

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

Theodore D. Murphy, Judge, presiding. The nature and facts of this case necessary to an understanding of the points decided appear in the opinion of the court. The jury found there was due the petitioners, Kelley, Wood & Co., $330.18, and Moulding & Harlan, $860.50. The defendant, Morehouse, moved for a new trial, which was refused and an exception taken.

<p>1. Cobtbact— to pa/y certain indebtedness of another — construction — when a right of action accrues. Where a party enters into a bond conditioned to pay certain indebtedness of the obligee therein, and save and keep him harmless from such indebtedness, the obligee is not bound to pay off such indebtedness in case the obligor fails to do so in order to maintain a suit on the bond, but he may sue upon the bond and recover the amount of such indebtedness as soon as it has matured, if not paid by the obligor in the bond.</p> <p>3. Specific performance — of contract respecting personalty. The general rule is that equity will not entertain jurisdiction for the specific performance of contracts respecting personalty.</p> <p>3. Same—for mere payment of money. Equity will not decree specific performance unless something more is to be done by it than mere payment of money, or-any thing which ends in the mere payment of money, be cause the law is adequate to this.</p>

<p>1. Confession of judgment—what constitutes. Where the docket of a justice of the peace shows that the defendant agreed that plaintiff should have judgment for a given sum, and that the plaintiff accepted the judgment tendered, this will be sufficient to show a confession of judgment by the defendant, and no appeal will lie from the judgment.</p> <p>2. Same — waiver of technical objections. A defendant, by confessing judgment in a suit before a justice of the peace, waives all formal objections, such as, that the docket, or transcript thereof, does not show the nature of the plaintiff’s demand.</p>

<p>1. Statutes.— rule of construction. If any part of a statute be intricate, obscure or doubtful, the proper way to discover the intention is to consider the other parts of the act, for the meaning of one part of a statute frequently leads to the sense of another; so that in the construction of one part of a statute every other part ought to be taken into consideration.</p> <p>2. Mechanic’s lien—right of sub-contractors to payment when work is abandoned. The mechanic’s lien law does not require that the owner shall pay any thing to a sub-contractor, when he is compelled to exhaust the original contract price, taking into account what he has rightfully paid the contractor, to complete the building, in case of abandonment by the contractor.</p> <p>3. Same —payment made by consent of sub-contractor. Where a sub-contractor, after serving notice of his lien upon the owner of a building, signs a writing, authorizing such owner to pay a certain other installment, referring to it as due when certain work is done, this will not be held conditional, but as indicating a particular installment, and the owner may rightfully make such payment before it is due, without becoming liable to the sub-contractor.</p> <p>4. Instruction—assuming a paper to be conditional. An instruction which assumes that a paper or writing in evidence is conditional, when it is not, is properly refused.</p>

John Burns, Judge, presiding. This was an action on the case, brought by Pierce Powers against the Pittsburg, Fort Wayne and Chicago Railway Company, to recover damages for a personal injury received while ditching the track in the defendant’s yard. It appears that this yard was filled with tracks, and trains were moving in all directions on them. While the plaintiff was thus engaged, with others, an engine was driven upon him without any warning or signal of its approach.

<p>1. Criminal law—when indictment is good. When the offense is so plainly stated in the indictment that the nature of it can be easily understood by the jury, that is sufficient under our statute to constitute a good indictment, upon which the judgment of the court can be rendered.</p> <p>2. Same — conversion of proceeds of sale by commission merchant. On an indictment against a commission merchant for converting the proceeds of goods intrusted to him to sell on commission, to his own use, it is not a sufficient defense that the agreement was that the commission merchant was to send the consignor his check for the proceeds, and that he did send his check, when it appears that there were no funds in the bank on which the check was drawn, to pay it, and that the check was promptly presented and not paid.</p> <p>3. In such case, if the defendant had funds in the bank at the time of drawing the check, the burden is on him to prove it, and also to explain why there were no funds there when the check was presented</p>

Josiah MoRoberts, Judge, presiding. This was an action of replevin, brought by John F. Daggett against Abram Rupley and Jacob Rupley, to recover a mare which the defendants claimed they had bought of the plaintiff. It appears that at the first conversation about the sale of the mare, Rupley asked the plaintiff his price, the plaintiff swearing that he replied $165, while the defendant testified that he said $65, and that he did not understand him to say $165.

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

<p>1. Statute—as to the title and change in the same. Unless a change in the title to a bill in the two houses concurring in its passage is one of substance, and calculated to mislead as to the subject of the bill, it may be regarded as a clerical mistake in nowise affecting the validity of the law.</p> <p>2. Where a bill passed the House entitled “ a bill for an act to prevent the keeping of common gaming houses,” but when introduced in the Senate it bore the title “ a bill for an act to prevent the keeping of common gaming houses, and to prevent gaming,” by which title it passed that body and was reported back, enrolled and approved, the body of the bill being identical in both houses, it was held that the change in the title did not render the act void.</p> <p>3. Same — title need not empress necessary results. The constitutional requirement in respect to the passage of bills is not, that but one subject shall be expressed in the title, but that the act shall embrace but one subject, which shall be expressed in the title. It is not necessary to express in the title the incidental results expected to flow from the act, but if it does, it will not render the act void.</p> <p>4. Indictment — sufficiency of statement of offense. Although an indictment may not state the offense in the language of the statute creating the same, yet, if it is stated so plainly that it may be easily understood by the jury, it will be sufficient.</p> <p>o. Juror—ground of challenge—party to suit pending, etc. The fact that a juror, whether of the regular panel or not, has a suit at law or in equity pending, for trial in the same court, at the same term, whether the same is actually tried or not at such term, is a good ground of challenge, and it is error to disallow the same.</p> <p>6. Same — opinion from reports. The fact that a juror has formed an opinion or impression based upon newspaper statements or rumors, about the truth of which he has expressed no opinion, will not disqualify him, if it shall appear from his statement, under oath, that he believes he can render a fair and impartial verdict in accordance with the law and the evidence.</p> <p>7. But if the juror is unable to state that he can sit as an impartial juror in the case, he is incompetent. If exposed to influences the probable effect of which is to create a prejudice in his mind against one charged with crime, and which it will take evidence to overcome, he is not competent.</p>

<p>1. City ordinance — effect of exceeding authority conferred by charter. Even if a city ordinance prohibiting sales of intoxicating liquors, embraces a class of sales which the city has no power to prohibit, it may still bé enforced as to such sales as the city does possess the power to prohibit.</p> <p>2. Exception—when it must be taken. When the record does not show that exception was taken to the giving of instructions in the court below, such objections come too late, and cannot be considered when made in this court for the first time.</p> <p>3. Evidence — in prosecution for selling liquor. Under an ordinance prohibiting the sale of intoxicating liquors, except for certain purposes, it is not incumbent on the prosecution to prove that the sale complained of was not for the excepted purposes, but when a sale is proved, the burden of proof is on the defendant to show that such sale was lawful.</p> <p>4. Variance — between complaint and the proofs, before justice of the peace, not material. On the trial of an appeal from a judgment of a justice of the peace, upon a prosecution for violating a city ordinance, it is not a matter of any consequence whether the original complaint is technically correct or not, the only question being whether the ordinance was violated or not, without regard to whether the evidence corresponds with the complaint.</p>

<p>1. Practice—appeal perfected less than ten days before court. An appeal perfected before a justice of the peace less than ten days before the next term of court, or whilst the appellate court is in session, must be continued over to the next succeeding term for trial.</p> <p>2. Same — rule of court cannot repeal a statute. A circuit judge is absolutely powerless to repeal or abrogate any provision of the statute by rule of court.</p>

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

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

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

<p>1. Taxes and taxation—jurisdiction to render judgment. It is the report of the collector that gives the court jurisdiction to act on an application for judgment against delinquent lands for taxes and assessments due thereon, and unless the law in respect to such report is substantially complied with, the .court will have no authority to act.</p> <p>3. Same — law to be strictly construed. In summary proceedings to divest owners of title to their property, the law under which the same is sought, is to be strictly construed, and nothing is allowed to be taken by intendment merely. This rule applies on application for judgment against real estate for taxes and assessments due thereon.</p> <p>3. Under the city tax act of 1873, the county collector, in applying for judgment against real estate for unpaid taxes or special assessments, must make a report of the delinquent list, verified by his affidavit, the same as under the general revenue law, and if such report and affidavit are substantially defective, or different from that required, the court will acquire no jurisdiction to render judgment,</p> <p>4. Same — sufficiency of collector’s affidavit. An affidavit of a county collector, on application for judgment against delinquent lands and lots, that his report shows a complete list, etc., “ as shown by the returns made by the city collector,” to him, all of which taxes and special assessments he has been “ unable to collect for want of authority of law,” is materially different from the one required by law, and the court will acquire no jurisdiction to render judgment.</p> <p>5. Same—statute construed as to errors and informalities. The 101st section of the revenue law, as amended by the act, approved May 30, 1873, authorizing amendments and obviating the effect of omissions, errors, etc., cannot be held to waive a substantial compliance with those steps which are essential to give jurisdiction. It aids and obviates defects of form, but not of substance.</p> <p>6. The statement of the valuation of the property upon which a tax is extended, in the collector’s report or return, and the oath or affidavit required to accompany it¡ are substantial requirements.</p>

<p>1. Evidence—competent to prove the fact of the execution of a writing by oral testimony. On the trial of an action for a false arrest, it is competent to prove, by the justice of the peace who issued the warrant upon which the arrest was made, the fact that a written affidavit was made before him on which he issued the warrant.</p> <p>2. Same—when contents of an affidavit may be proved by oral evidence. Where a justice of the peace who issued a warrant for the arrest of a plaintiff in an action for false imprisonment, testifies to the fact that an affidavit in writing was made before him, upon which the warrant was issued, and the loss of the affidavit is proved, it is competent to prove its contents by oral evidence.</p>

<p>1. Practice — change of venue. An application for a change of venue should be made at the earliest opportunity, and where a party, knowing all the time of the ground relied upon for a change of venue, delays making his motion until towards the latter end of the term of court, and no reason is shown why the motion was not made on the first day of the term, a change of venue will not be granted.</p> <p>2. Same — setting aside default discretiona/ry. Setting aside a default is a matter of discretion that this court will not control except in extreme cases, and where it is manifest the discretion has been abused to the great wrong and injury of the party complaining.</p> <p>3. Judgment — when sufficiently definite and certain. A judgment against a railroad company, on an appeal from an assessment of damages for land taken by it, which refers to the verdict wherein the land taken is properly described, is sufficiently definite and certain, as to the land for the taking of which the judgment is rendered.</p> <p>4. Execution — when shoxdd be awarded. Where the verdict of a jury, on an appeal in a case of assessment of damages for land condemned by a railroad company, finds that the land has been taken by the company, and not merely that it is proposed to be taken, it is proper to award execution on the judgment.</p>

<p>1. Negligence — injury resulting from, want of outlook on railroad ca/rs being pushed. Where a person driving a team in a city on a very cold and blustering day, being muffled up to protect himself from the severity of the cold, while driving across a track near a public elevator, was struck by a car being propelled by an engine in the rear, and severely injured, and there was no one stationed on the car or on the ground to give warning, and it appeared, if there had been, the injury might have been avoided, it was held, that as the injury was the result of negligence on the part of the company, it was liable in damages to the injured party.</p> <p>2. Damages — whether excessive. A verdict of §10,000 damages in favor of one severely injured by negligence of a railway company, when the plaintiff was only a day laborer, and not wholly disabled, and the negligence was not reckless, was held so excessive as to justify the inference the jury were actuated by prejudice and passion, and should have been set aside. But a remittitur of §6,000 having been entered, and judgment entered for §4,000, it was held, that this was not so excessive as to justify a reversal.</p>

<p>Appeal from the Superior Court of Cook county ; the Hon. S. M. Moore, Judge, presiding.</p>

<p>1. Appeal—when may he prosecuted by one not named a party to the suit. Where, on a creditor’s bill, the cause is referred to the master in chancery to take proofs of all claims against the estate of the defendant which may be presented to the receiver, and a claim is sought to be proved before the master by a creditor who is not a party to the bill, and the master reports to the court that he has disallowed the claim, and upon exceptions taken to the report the court overrules the exceptions and sustains the report, an appeal on behalf of such claimant will lie to the Supreme Court.</p> <p>2. Assignment — of insurance policy, may be vacated if obtained by misrepresentation. Where a policyholder who had sustained a loss of property insured, was induced, by false representations of the officers of the company issuing the policy as to the ability of the company to pay its debts, to assign his policy for less than was due on it, to one who was acting for the company in settling its losses, in concurrence with the officers making the false representation, it was held that the assignment should be annulled and the policyholder entitled to recover on his policy in a court of equity.</p> <p>3. Limitation—clame of as to suit, in insurance policy, waived by fraud on part of company. A clause in an insurance policy limiting the right of action on the policy to a specified period of time is waived if the company, by fraud, or by holding out reasonable hopes of an adjustment, prevent the assured from bringing suit within the time limited.</p>

Samuel M. Moore, Judge, presiding. This was a bill in chancery, by the appellee against the appellant, to prevent a threatened obstruction of the use of a street or way. The facts appear in the opinion.

<p>1. Feaudulent conveyance—both parties must participate in fraud. In order to impeach a conveyance of land for fraud, both grantor and grantee must be shown to have intended to commit the fraud as against creditors of the grantor.</p> <p>2. Same —fraud not presumed. Fraud against creditors in a conveyance of the debtor’s property cannot be presumed, but must be proved.</p> <p>3. When a debtor not in debt sells his interest in land to another and receives payment in full, and after debts are contracted by the firm of which he is a member, he conveys the land to the purchaser, neither he nor his grantee having any knowledge of the indebtedness, the conveyance cannot be impeached for fraud as to the creditors.</p>

<p>1. Cbedibility of witness — instruction may be based on statements made out of court. Where a party as a witness has made statements out of court different from those on the stand, an instruction that if he had been successfully impeached, or had willfully sworn falsely as to any matter or thing material to the issue, then the jury might disregard his entire evidence, unless corroborated by other unimpeached testimony, is not erroneous, as it is for the jury to say what the statements amount to as grounds of impeachment.</p> <p>2. Same — rule for judging weight of testimony. In weighing the evidence, it is the duty of the jury to take into consideration the deportment of the witnesses while testifying, as well as any interest they may have in the result of the suit, and it is not error to instruct them to consider these facts.</p> <p>3. New tbial — newly discovered evidence. When newly discovered evidence is merely cumulative, and not of a decisive character, and the party has shown no diligence in finding it before the trial, a new trial will not be granted.</p>

<p>1. Tbesfass— when it lies. Trespass is a possessory action, and the plaintiff must, at the time the injury is committed, have an actual or constructive possession as well as a general or special property in the chattel injured, carried away or destroyed, in order to maintain the action; and though the possession be tortious, yet trespass lies against a stranger who divests such possession.</p> <p>2. Exemplary damages — in trespass. Where a landlord takes his tenant’s corn under an honest belief that he has the right to sell the same and divide the proceeds, without any notice of a division by the tenant, exemplary damages should not be given against him in an action of trespass by the tenant.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. 2L J. Pillsbury, Judge, presiding.</p>

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

W. W. Heaton, Judge, presiding. This was a hill in chancery, by Michael B.. Kelly, against Thomas W. Trumble, to remove a cloud from the title to lands therein named, created by certain tax deeds, and for the cancellation of a certain bond given by the defendant to the complainant for a deed to the same land. The defendant filed a cross-bill for the specific performance of the contract of sale.

<p>Contract — services — care and shill required. Where a person engages to work for another he impliedly undertakes that he has a reasonable amount of skill in the employment, and engages to use it and a reasonable amount of care, and a failure to do so will prevent him from recovering the contract price, and limit him to what the work is reasonably worth, or the employer may recoup all the damage he may sustain for the want of reasonable skill and care in executing the work.</p>

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

<p>1. Judgment — limited to amount claimed in justice’s summons. In actions originating before justices of the peace, the plaintiff’s recovery is limited to the amount of his demand indorsed on the summons.</p> <p>3. Railroads — duty as to keeping excavations free from water or ice. The law does not require a railway company to keep the excavations along the sides of its track free from water and ice, and it will not be liable for stock killed in consequence of ice therein, so as to prevent escape from the track, over the same.</p>

<p>1. Res ad judicata—in Supreme Court. When, on error to this court certain facts are found from the evidence, and the cause reversed, and remanded merely to supply proof of a particular fact, the facts found by this court must be regarded as settled and not open to be questioned on a second writ of error.</p> <p>2. Guardian ad litem —for minor defendants. Where a person is sued with certain minor defendants in chancery, as their guardian, and he appears, answers and defends in that capacity, and procures a reversal of the decree against the minors, a second decree against the minors will not be reversed because the record shows no appointment of a guardian ad litem, or proof that such person was in fact guardian.</p> <p>3. Costs — as against infants. On bill for a reconveyance of land against the minor heirs of a grantee to whom the land was conveyed as security or indemnity, it is error to decree costs against the infant defendants.</p>

Joseph E. Gaby, Judge, presiding. This was a bill in chancery, by appellees against appellant and one Cyrus Bentley, charging that appellant holds certain land in trust for appellees, and praying that she be decreed to convey title in the same, etc. A brief statement of the facts alleged in the bill, shows, that Charles Walker, now deceased, in his lifetime, and on the 7th day of May, 1841, being the owner of a certain quarter section of land in the town of Jefferson, in…

<p>Writ or Error to the Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding.</p>

<p>Writ of Erroe to the Circuit' Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding.</p>

John Burns, Judge, presiding. This was an action of assumpsit brought by John E. Barbom’ against Charles Bradley and one Lott Frost. Bradley alone was served with process and pleaded the general issue.

Writ of Error to the Circuit Court of Marshall county ; the Hon. Samuel L. Richmond, Judge, presiding. This was a bill in equity to reform a deed for land executed by husband and wife, for a mistake in the description of the property. The court below granted the relief sought.

<p>Appeal from the County Court of Will county; the Hon. Benjamin Olin, Judge, presiding.</p>

H. J. Pillsbuby, Judge, presiding. This was an action on the case, by Warren White against the appellant, to recover damages for an alleged injury to plaintiff’s minor son by the sale of intoxicating liquors to him. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $25.

Writ of Error to the Circuit Court of Cook county. This was an action of debt by the People of the State of Illinois against William F. Tompkins, as grain inspector, and Aquilla H. Pickering, John B. Lyon, Wiley 3VI. Egan, George H. Sidwell and David H. Lincoln, his sureties upon his official bond.

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by the appellees against the appellant, upon a promissory note.

This was a bill in chancery, filed by George E. Purington and Abner E. Scranton against James H. Akhurst, on the grounds stated in the opinion, where the material and leading facts appear.