Volume 76 — Illinois Reports

William H. Snyder, Judge, presiding. This was a bill in chancery, by John W. Ash against James T. Cooper, sheriff and ex offieio collector of Madison county, and the county court of said county, to restrain the collection of a county road tax of ten cents on each $100 valuation of • property, which was extended on the complainant’s property, On the ground that he was a resident of the city of Alton, where his property was situated, and that the property situate in such city…

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

Lyman Lacey, Judge, presiding. This was a bill in chancery, by John Alsop against Duncan McArthur, executor of the last will of Hannah Alsop, deceased, George Armstrong, Eliza Armstrong, Robert H. Cox, and Mary L. Cox, his wife. The object of the bill and facts of the case are fully stated in the opinion of the court.

Thomas F. Tipton, Judge, presiding. This was an action on the case, by David Becker, administrator of the estate of Frederick Becker, deceased, against the Chicago and Alton Eailroad Company. The material facts of the case are stated in the opinion of the court.

<p>Appeal from the Circuit Court of Cass county; the Hon. Lyman Lacey, Judge, presiding.</p> <p>This was a suit in chancery, brought by the city of Beards-town and others, against the city of Virginia and others, to contest an election held in the county of Cass, November 12, 1872, on the question of the removal of the county seat of the county from Beardstown to Virginia, and to restrain the county officers from removing their offices or the records of the county, until the final determination of the suit.</p> <p>The facts necessary to an understanding of the points decided are stated in the opinion of the court.</p>

<p>1. Statute—when directory only. Where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed or the language used by the legislature shows that the designation of the time was intended as a limitation of the power of the officer.</p> <p>3. Where the charter of a city required the city authorities to publish a digest of its ordinances within one year after the grant of the charter, and every five years thereafter, it was held, in a suit by the city for the violation of an ordinance, that this requirement was only directory, and a neglect to observe it presented no ground for defeating a recovery.</p> <p>3. Ordinance—right to recover under not defeated because act was a breach of party's bond. In a suit by a city to .recover the penalty fixed by ordinance, for selling liquors contrary to the terms of his license, it is no defense that the defendant is liable to the city on his license bond for the same act, the ordinance prescribing that the penalties thereby imposed might be recovered in an action of debt, or as damages in a suit on the bond. The fact that the acts complained of were breaches of the bond, makes them none the less violations of the ordinance.</p> <p>4. Charter—forfeiture, how questioned. Whether a city has forfeited its charter, can only be raised in a direct proceeding bj7 scire facias or quo warranto. The question can not be raised in a suit for a violation of its ordinances.</p>

<p>1. Exemption—from, garnishment. The delivery of property in the hands of a garnishee to an officer, to be sold under execution against the owner, will not impair the rights of such owner in claiming the same as exempt from sale, but he may make such claim the same as though the property was taken from him.</p> <p>2. Same—money in the hands of garnishee exempt. Where a judgment debtor had no other property than such as was specifically exempt from levy and sale, but had less than $100 on deposit in a bank, which was sought to' be reached by garnishee process, it was held, that he might claim the same as exempt under the clause of the statute which exempts $100 worth of other property suited to his condition in life, to be selected by him, and on such selection that it could not be reached in the hands of the garnishee.</p>

Writ of Error to the Circuit Court of Menard county; the Hon. Lyman Lacey, Judge, presiding. This was a bill filed by Mark H. Cooper and others, heirs at law of William Cooper, deceased, against Sarah A. Cooper, widow, and the other heirs at law of said William Cooper, for the partition of certain lands and for the assignment of the widow’s dower therein. The court below dismissed the bill, and complainants appealed.

Lyman Lacey, Judge, presiding. This was an action of assumpsit, by Henry F. Elliott, James Congdon and Eugene Burnell, partners, doing business under the name and style of Elliott, Congdon & Co., against the Toledo, Wabash and Western Railway Company, to recover back a rebate of five and a half cents per hundred pounds on a lot of corn shipped to Boston on defendant’s road, under a special agreement to that effect. The facts of the case are stated in the opinion.

<p>Appeal from the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding.</p> <p>This was a bill of complaint, in the circuit court of Cook county, exhibited by Jerome F. Downing, against J. H. L. Tuck, George A. Childs and Octavius Prince, the scope of which was to procure a cancellation of a promissory note executed by complainant to Tuck for five thousand dollars, and which Tuck had placed in the hands of Childs & Prince, bankers at Chicago, as collateral for a loan by them to Tuck of seven hundred dollars. The principal allegations in the bill of complaint are, that Tuck, in July, 1873, came to Erie, Pennsylvania, with Lucien P. Sanger, claiming to come from Salt Lake City, in the territory of Utah; that after they had been in Erie a short time, sojourning at the house of Irving Camp, then a resident, they endeavored to form a company to purchase a two-thirds interest in pretended mines, veins and lodes in the West Mining District in Salt Lake county, Utah,- and to facilitate their purpose, Sanger and Tuck represented to complainant and to others that one Scribner, of Salt Lake City, owned an interest of two-thirds in two mineral veins or lodes, known as “Aqua Frio” and “Black Metallic” lodes, containing six hundred feet in each; and situated in the “West Mountain Mining District” in Salt Lake county, Utah, and certain other veins known as “Green Yankee,” containing thirteen hundred feet, adjoining the north-east end of the “Black Metallic Vein,” which interests Scribner desired to sell, and offered them for sale for forty thousand dollars; that Tuck and Sanger represented that Sanger had a deed from Scribner of this two-thirds interest, which Scribner had executed to enable Sanger to give deeds to parties who might purchase, to save the trouble of procuring deeds from Salt Lake to be executed by Scribner. Tuck, in talking very freely about the mines, and in his endeavors to sell and to induce complainant and others to form a company to purchase and work these mines, represented to complainant and others that he, himself, had no interest in these mines, and that his only object in coming with Sanger was as a professional attendant and a practical and experimental geologist, and as one well acquainted with mines and mining in the territories, and therefore could speak more confidently as to these mines, and that he came to explain the geological features of the country and the character of the mines ; that they represented to complainant and others that the mines were of great value, yielding rich copper ore, with more or less gold ; that Sanger had purchased from Scribner one-third interest therein, which he bought to hold as an investment, and that Scribner would not sell his remaining interest for less than forty thousand dollars ; that on this visit nothing was effected, and the adventurers left Erie, but a short time afterwards Tuck returned and again endeavored to induce complainant and others to purchase this two-thirds interest, he, Tuck, having then and there a deed purporting to have been executed by Scribner to him for this two-thirds interest, he representing the deed was executed to him on the condition he should go East and dispose of the same for not less than five thousand dollars a share of one-twelfth, and that he had given his personal obligation to Scribner in the sum of forty thousand dollars to secure Scribner out of the sales of these shares at five thousand dollars for one-twelfth part thereof; that, by these representations to complainant and others, named in the bill of complaint, they were induced to form a company to purchase this two-thirds interest; and, as a further inducement to purchase, Tuck represented that no reduction in price could be obtained from Scribner, and he further represented to them that he was an experienced geologist, well acquainted with mines and mining in the territories, and with these mines in question, by which he could speak confidently as to their value, he then representing them to be of great value, yielding rich copper ore, with more or less gold, and assured complainant, if he would purchase a.share, the profits immediately to result from their being worked, or within the first six months, would be large enough to enable him to pay for such share from the profits; that the mines could be depended upon for sufficient copper ore to keep one or more smelters in constant operation from the commencement, and that the profits would be large; that, relying upon these representations, complainant purchased of Tuck one undivided one-twelfth interest, and gave to him his promissory note for five thousand dollars, payable six months after date, upon which Tuck delivered to complainant a quit-claim deed from himself for this one-twelfth interest; that Tuck disposed of other shares, to-wit: to W. L. Scott one share, to I. Camp one share, to Noble two shares, and to M. R. Barr two shares—he, Tuck, pretending to divide Scribnerls interest into eight shares, he selling seven shares and retaining one share to himself.</p> <p>The bill then alleges that a company was then formed in Erie to work this mine, to smelt and sell ore and copper; that it was called “The Erie Mining and Smelting Company,” but was not incorporated. It is then alleged the company took possession of the mines in August, 1873, and attempted working them, but found them wholly worthless; that complainant fully relied on all the representations of Tuck, and believed them true when he made the purchase and gave his note, but they were all false and untrue, and made by Tuck to cheat and defraud complainant out of his note ; that, so far from being true, Scribner gave Tuck the deed for his two-thirds interest in the mines on the understanding that he should go East and dispose of it for not less than five thousand dollars for an undivided one-twelfth part, and so far from its being true that Tuck had given his personal obligation to Scribner for forty thousand dollars, he had obtained Scribner’s interest for a mere nominal value and without such an obligation ; that the entire interest of Scribner could have been obtained for the amount of complainant’s note; that Tuck well knew this at the time he made his representations ; that he made them with intent to cheat complainant out of the note, he, Tuck, knowing all his representations to be untrue, and the mines to be worthless.</p> <p>It is then alleged, so anxious was Tuck that complainant and the others should not know what he paid Scribner, or what Scribner had or would ask for his interest, that when one of the persons, to whom shares were sold, suggested to Tuck that a letter should be written to Scribner to see if he would not take less than forty thousand dollars therefor, Tuck immediately opposed the idea, asserting it was Scribner’s best terms, and he had obligated himself to pay forty thousand dollars, and Scribner would not take a cent less.</p> <p>The bill then charges that, in disposing of this stock to these members of the company, he unjustly discriminated in favor of certain members by selling to such interests in these mines on more favorable terms than he did to complainant, to the prejudice of his rights as a member of the company, and in violation of a common understanding as to the price to be paid by each member thereof purchasing from him, Tuck, and the note was obtained by fraud.</p> <p>The bill- then charges that, after obtaining the note, Tuck left Erie and was not heard from until the 13th of October, 1873, when complainant received a telegram from Childs & Prince, bankers in Chicago, asking if complainant’s note to Tuck was all right, to which complainant replied it was not all right, and in three or four days thereafter complainant received a letter from these bankers to the effect that his telegram did not reach them in time to prevent them advancing upon the note to Tuck seven hundred dollars, and that they held the note as collateral security therefor.</p> <p>Answer under oath was waived. The prayer of the bill of complaint was, that Childs & Prince be restrained from buying this note and from selling, or in any manner disposing of the same, except to complainant, and if they had bought it in good faith, or had advanced money on it to Tuck, that they may be decreed to deliver to complainant the note upon payment by him of the amount advanced by them, and that complainant might be subrogated to their rights, and that they deliver up to complainant any notes of Tuck or other securities held by them from or against Tuck for this advancement, and that the note in question might be delivered up and cancelled, and for further relief.</p> <p>An injunction was allowed, and defendants Tuck, and Childs & Prince, filed their answers, the latter stating, in substance, the receipt and possession of complainant’s note, that they had advanced seven hundred dollars upon it without notice of any infirmity in it, and held it as collateral security therefor. They admit having in their possession some silver mining stocks received from Tuck, and will present a list of the same when required by the court, and have no other property of Tuck.</p> <p>Tuck answered the bill at length, and in detail, in which he gives his version of the transaction; admits the visit to Erie in July, 1873, where he endeavored to form a company to purchase a two-thirds interest in these mines, and admits he represented to complainant and others there that one Scribner, of Salt Lake City, owned a two-thirds interest in these mines, as alleged, and that he would sell this interest for forty thousand dollars, and that Sanger had a deed for that purpose; admits they spent some time in Erie ; that he there represented he had no interest in the mines ; that he came with Sanger as a professional attendant, he, himself, being a professional and practical geologist and acquainted with mines and mining in Utah territory, and for that reason could speak more confidently of the character and value of these mines; that they (he and Sanger) represented that the mines were valuable, yielding rich copper ore, with more or less gold and silver, and that Sanger had an interest of one-third in these mines as an investment, and that Scribner would not sell his two-thirds for less than forty thousand dollars. He admits they then left Erie, and that he, Tuck, returned to that place on the 1st of August, 1873, with a deed from Scribner of his two-thirds interest, and represented to complainant and the others that it was executed to him to enable him to convey that interest to others, for not less than five thousand dollars for each share of an undivided twelfth part of the same, but denies that he represented to complainant or others of Erie that he had given his personal obligation to Scribner for forty thousand dollars, or other sum, as a guaranty that he would sell his interest for that sum and secure its payment by sales of shares, or otherwise, and denies making the representations to complainant or others of Erie, alleged in the bill.</p> <p>He admits he did state to complainant, and others of Erie, that no reduction in price could be obtained of Scribner; that the mines were of the capacity and value as alleged in the bill, and that he made such representations in order that complainant and the others might be induced to examine the mines themselves, and satisfy themselves, upon such examination, of their value, preliminary to the formation of such company for working the mines, and that all the representations made by him were true in every particular, and that the representations were so understood by complainant and the others to have been made for the only purpose of inducing them to examine the mines, and thereby ascertain if it would be advisable for them to embark in the enterprise; that, thereupon, complainant and the others appointed a committee, - consisting of M. E. Barr and Irving Camp, to proceed to the mines and examine into their capacity and value—he, Tuck, promising to accompany the committee to the mines, which he did; that the committee, when at the mines, examined them fully, and at defendant’s suggestion they went to “Mammoth” and “Coppei'opolis” mines, at East Tintic, eighty miles from Salt Lake City, to examine those mines, in order to assure themselves of the character, value and extent of the mines in question, they being of the same general character of the mines in question, and so understood by this committee at the time; that after a critical examination by the committee of these Tintic mines, they returned to Salt Lake City and again went to the mines in question and made another thorough examination of them, and took ores from the mines and had them assayed to ascertain their richness and value; and, thereupon, the committee expressed themselves to be more than satisfied with the result of their investigation, and said, to defendant and others that the mines were of greater value than had been represented to them by Sanger and Tuck at Erie; that the committee, whilst at these mines, made arrangements to purchase a favorable site for the company - that, shortly thereafter, the committee and defendant returned together to Erie, the committee reporting to the parties the result of their mission, and of their examination of the mines, to complainant and the others interested in the enterprise, and "they reported to these persons that these mines were of great value, and better, in every respect, than had been represented.’</p> <p>The answer then alleges that, upon this report of the committee on their return to Erie, the company was formed, composed of certain persons, among whom were complainant and defendant Tuck, for the purpose of purchasing Scribner’s interest in these mines and operating the same; that complainant, relying upon the report of the committee so made, purchased of defendant one share, being one-twelfth, for five thousand dollars, executing his note at six months therefor, whereupon defendant executed to complainant a deed for such share. He denies that complainant was deceived by any representations made by Sanger or himself respecting these mines, and did not rely upon the same, but did rely upon the report of the committee alone. He denies he obtained the deed from Scribner for five thousand dollars, or a mere nominal sum, or that he represented to complainant, or any one else, that he had given Scribner forty thousand dollars or any other sum, and denies all fraud. He admits leaving the note with Childs & Prince as collateral security for a loan of seven hundred dollars, and thereupon defendant entered his motion to dissolve the injunction.</p> <p>At the March term, 1874, a general replication was filed, and the cause set for hearing at April term, 1874.</p> <p>On the hearing, against the objections of defendant, the court permitted complainant to amend his bill by alleging an offer and willingness on his part to reconvey to the defendant all his interest in these mines, and title, conveyed to him by defendant by his deed.</p> <p>A decree passed, as prayed in the bill of complaint, the note in question declared fraudulent and void, and to be “annulled, set aside and cancelled,” and that Childs & Prince, upon the payment to them by complainant of the seven hundred dollars loaned defendant, and interest thereon, deliver the note to complainant, and that complainant reconvey the property to defendant, covenanting that he has done nothing to incumber it, etc.</p>

Joseph Sibley, Judge, presiding. This was a bill of interpleader, filed by the First National Bank of Quincy, Illinois, against John B. Alley, William S. Woods, the Quincy, Alton and St. Louis Railway Company, and the Board of Supervisors of Adams county. The facts of the case and object of the bill are stated in the opinion of the court.

<p>Appeal from the Circuit Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding.</p> <p>This was an action of assumpsit, brought by Hughe)’ against Evans, to recover for services and commissions in making sale of certain real estate, under the following contract :</p> <p>“Bichard J. Hughey, of the city of Mattoon, Coles county, Illinois, is hereby authorized to sell my farm, on which I live, situate and being in the. county of Franklin, and State of Missouri. Said agent is authorized to sell said tract of land, containing 343J acres, at the price of $30 per acre, to be paid as follows: $3000 to be paid on the first of January, 1871, and the balance as follows: $3500 on the first of January, 1872, $3500 on the first day of January, 1873, and the remainder on the first day of January, 1874; all of which payments must bear ten per cent interest per annum from date of contract until paid. For making said sale, I agree to pay said Hughey the sum of $500, and in event that said agent succeeds in selling said land for more than $30 per acre, which he is hereby authorized to do, I agree and bind myself that said Hughey, as agent aforesaid, shall have whatever sum he may get over $30 per acre, as commission, in addition to the $500, and I bind myself to express in the deed, as the consideration, the whole amount for which said Hughey may sell said tract of land.</p> <p>The first payment of $3000 must be secured by mortgage on real estate worth at least $6000 cash.</p> <p>Witness my signature, this 27th day of December, 1869.</p> <p>W alkek’Evans.”</p> <p>On January 1, 1870, Hughey effected a sale' of the farm to John B. Rigney and Hugh J. Rigney, of Moultrie county, Illinois, at the price of $35 per acre, amounting to the sum of $12,015.75, to be paid as follows: $3000 Jan. 1, 1871; $3500 Jan. 1, 1872; $3500 Jan. 1, 1873, and $2015.75 Jan. 1, 1874, for which sums the Rigneys executed their promissory notes, payable to Evans, with ten per cent interest, the Rigneys agreeing to execute to Evans a mortgage on their farm in Moultrie county, Illinois, of 320 acres, to secure the payment of the first note of $3000. Afterward, Evans came to Mattoon, in this State, where Hughey resided, bringing with him a trust deed for the Rigneys to execute on the land in Moultrie county. Hughey represented to Evans that the Rigneys would not execute a trust deed, but would execute a mortgage, which Evans agreed to accept, and left for his home in Missouri, leaving it with Hughey to get the mortgage executed, and to have included in it also another note for $2500, which the Rigneys had given to Evans for stock and farming implements purchased from the latter.</p> <p>Hughey subsequently procured the mortgage to be executed by the Rigneys, to secure the payment of both notes for $3000 and $2500, and handed the same to a neighbor, who was going to Sullivan, to take to the recorder’s office. About a year afterward, this neighbor returned the mortgage to Hughey, saying he had forgotten to give it to the recorder, and Hughey then immediately sent the mortgage to the recorder’s office to be recorded. The mortgage was executed January 31, 1870, and recorded February 14, 1871. Between these dates, certain judgments were obtained against the mortgagors, and became prior liens upon the land, amounting to $1179.50. Default was made in paying the notes secured by the mortgage, and Evans caused the mortgage to be foreclosed, bought in the land himself under the foreclosure sale, the time for redemption expired, and he obtained a deed for the land. After procuring his deed, Evans was desirous to borrow some money and mortgage this land; and then, in 1873, for the first time, he became aware of these judgment liens, and was compelled to discharge them to remove an incumbrance from his title, and did discharge them by payment of their amount. There was evidence that the Moultrie county land was then, at the time of the trial in November, 1873, worth $35 per acre.</p> <p>The suit was commenced September 13, 1873. Upon the above state of facts the court below, trying the case without a jury, found for the plaintiff in the sum of $2216.25, and rendered judgment for that amount against the defendant, from which he appealed.</p>

<p>Appeal from the Circuit Court of Morgan county ¡ the Hon. Chauncey L. Higbee, Judge, presiding.</p> <p>The Illinois River Railroad Company was empowered, by its charter, to construct a railroad from Jacksonville, in Morgan county, to LaSalle, in LaSalle county, via Virginia, in Cass county, Bath, in Mason county, Pekin, in Tazewell county, and Lacón, in Marshall .county.</p> <p>At an election lawfully held for that purpose, on the 1st day of September, 1856, a majority of the voters of Morgan county voted in favor of that county subscribing for $50,000 of the capital stock of said railroad company, payable in the bonds of the county. At the next December term thereafter of the county court of that county, an order of said court was made and entered of record that the subscription be made, and the General Assembly, by an act entitled “An act to amend the charter of the Illinois River Railroad Company,” approved January 29, 1857 (Laws of 1857, 105.) legalized the election, directed the subscription to be made, and bonds to be issued therefor. Soon thereafter the subscription was made by the proper officers of the county on the books of the company. ' Bonds were subsequently issued, bearing date September 7, 1857, one hundred in number, for $500 each, numbered from 1 to 100 consecutively, with interest coupons at the rate of six per cent per annum annexed. Prior to the issue of the bonds, no calls had been made on the county by the railroad company for payment of installments on its subscription, but R. S. Thomas, its president, applied to the county court for that purpose, and learning that the court was willing to issue them, but desired satisfactory assurance that they would not be used except in payment for work done in Morgan county, executed and filed with the county clerk the following certificate:</p> <p>“State op Illinois, 1 Morgan County. J</p> <p>“I, R. S. Thomas, President of the Illinois River Railroad Company, certify that that portion of said railroad situated north of the town of Virginia, in said county, is now in process of construction, and that the portion of said road between Jacksonville and Virginia is under contract to be completed by the first day of December, 1858, and that it is provided in the contract for the construction of said road that the Morgan county bonds shall be expended for work done in Morgan county, and not elsewhere.</p> <p>E. S. Thomas,</p> <p>President Illinois River Railroad.”</p> <p>Whereupon the county court, being satisfied with this certificate, entered of record the following order:</p> <p>“Morgan County Court, 1 September Term, 1857. j</p> <p>“ Whereas, it is provided in and by an act of the General Assembly of the State of Illinois, entitled £ An act to facilitate the construction of railroads,’ approved March 1, 1854, that any city or county in this State, which, under the provisions of an act entitled an act supplemental to an act entitled £an act to provide for a general system of railroad incorporations,’ approved November 5, 1849, has heretofore subscribed or may hereafter subscribe for any stock in any railroad company, payable in the bonds of said city or county, it shall be lawful for the city council of such city, or the judges of such county, and they are hereby authorized and empowered to issue and deliver to such railroad company the whole or any portion of the bonds of such city or county, payable on such subscription. at any time hereafter, when, in their opinion, the interest of such city or county will be promoted thereby, whether the assessments upon the stockholders of said company have been regularly assessed and made payable or not. ********</p> <p>“And whereas, the Illinois Eiver Eailroad Company has actually undertaken and is now proceeding with the construction of so much of said last mentioned railroad as extends from Pekin, in Tazewell county, to Virginia, in Cass county, and E. S. Thomas, the president of said company, having certified to this court that said last mentioned company have placed their said railroad under contract to be completed by the first day December, 1858, from Virginia, in Cass county, to Jacksonville, and that it is provided in the contract for the construction thereof that the Morgan county bonds shall be expended for work done in Morgan county, and not elsewhere, and this court being satisfied that the interest and advantage of the county will be promoted by the delivery to the last mentioned company, as hereinafter provided, of the bonds heretofore subscribed by this county to the capital stock of said company;</p> <p>“ It is, therefore, ordered that there be delivered to the Illinois River Railroad Company the amount of $50,000, in bonds of this county, of this date, number 1 to 100, payable to said company—each bond being for $500, redeemable at the American Exchange Bank, in the city of New York, on the 1st day of March, A. D. 1877—each of said bonds to have coupons or interest warrants attached thereto for interest, payable annually from and after 1st of March next, at 6 per cent per annum.” (Then follows a part of the order relating to the deposit of the certificate of stock when issued, and preserving copies óf the bonds in the offices of the clerk and treasurer.)</p> <p>The bonds were then issued, and, by the county judge, deposited with Elliott & Brown, bankers, for the Illinois River Railroad Company, but the evidence is conflicting as to whether the bankers were instructed to hold the bonds until further orders from the county court, or whether they were to be delivered to the railroad company upon receiving the certificate of stock for the county from the railroad company.</p> <p>The evidence of James Berdan, who was then county judge, and Isaac R. Bennett, one of the associate justices, is to the effect that the bonds were to be kept and not delivered up until further orders, and that they were not to be paid out except upon work done in the county. Elliott and Brown, on the other hand, both testify that the bonds were deposited with instructions to deliver to the railroad company on receipt from it of the certificate of stock to which the county would be entitled, and a letter written by them, shortly after the receipt of the bonds, to R. S. Thomas, tending to corroborate this statement, was also in evidence. They both further say, however, that before they had delivered any of the bonds they were notified by Cassell, the successor in office of Berdan as county judge, not to deliver the bonds, and they thereafter refused to deliver them for that reason.</p> <p>On the 1st of November, 1858, the railroad company issued its coupon bonds for the purpose of raising ¡money to be used in its business, to the amount of $1,020,000, and at the same time, to secure their payment, executed a mortgage or deed of trust to Studwell, Hopkins & Cobb, as trustees, on its franchise and railroad, and all its property connected therewith, present and prospective, but neither in terms nor by necessary implication embracing the Morgan county bonds.</p> <p>In June, 1859, the construction contract alluded to in the certificate of R. S. Thomas, filed with the county clerk, it being a contract with a firm known as Allen & McGrady, was abandoned by the contractors. No work was done under that contract, or by the Illinois River Railroad Company, in Morgan county.</p> <p>. In April, 1859, the company gave Allen & McGrady two orders for $2,000 each, drawn in their favor on Elliott & Brown, and payable in' Morgan county bonds. These were subsequently sold and transferred by them to William Thomas for a valuable consideration, and they constitute his claim in the present suit. No question is made but that these orders were given for work done by Allen & McGrady for the company ; and it is not claimed that the work was done in Morgan county. The company, having constructed only that portion of its road between Pekin, in Tazewell county, and Virginia, in Cass county, suspended operations.</p> <p>In July, 1862, the board of directors of the railroad company, finding that the company was unable to pay the interest upon its bonds, voluntarily surrendered the property conveyed by the mortgage or deed of trust to the trustees, Studwell, Hopkins' & Cobb, who immediately took possession and operated the road for the benefit ;of the bondholders.</p> <p>At the June term, 1863, of the United States Circuit Court for the Southern District of Illinois, a decree of foreclosure was rendered in favor of the trustees and against the railroad company, ordering the sale of the property described in the mortgage or deed of trust.</p> <p>On the 1st of October, 1863, the property was sold, pursuant to this decree, to John Allen, Aaron Arnold and Edwin L. Trowbridge for $400,000, leaving a balance ¿still due on the decree of $1,061,292.56. The sale was reported to and approved by the court on the 24th of June, 1864, and judgment was also then rendered against the company for the balance due on the decree.</p> <p>By an act of the General Assembly, approved June 11, 1863, it was enacted that Hopkins, Studwell & Cobb, trustees, as before named, and Aaron Arnold, John Allen and Edwin L. Trow-bridge, holders of bonds or obligations secured by said mortgage or deed of trust, and their associates who should thereafter become purchasers of the railroad premises, franchises and property described in said mortgage or deed of trust, under or by virtue of the foreclosure thereof, or under or by virtue of any decree made, or thereafter to be made, by any court within this State, directing or ordering the sale of said railroad premises, franchises and property, were thereby created a body corporate and politic, by and under the name of the Peoria, Pekin and Jacksonville Railroad Company. And the corporation thereby created was empowered to purchase and become the owner of all and singular the railroad franchises, premises and property, etc., described in the said mortgage or deed of trust, to enjoy and use the same, and upon receiving a proper transfer thereof, to have and be vested with all the corporate powers, privileges, rights, immunities and franchises theretofore given or granted to the Illinois River Railroad Company.</p> <p>Prior to this enactment, and in view of obtaining it, Stud-well and Hopkins, two of the trustees before mentioned, proposed and signed the following stipulation in writing:</p> <p>“ The undersigned, trustees of the first mortgage of the Illinois Biver Bailroad Company, being desirous to obtain a charter for incorporating the purchasers of the said railroad, do hereby stipulate that nothing in that act of incorporation, which may be passed by the legislature, shall in any way affect the title or right of the trustees or bondholders, or any creditors of „ said railroad company, or any person having claim or right to the whole or any portion of §50,000 of Morgan county bonds now in litigation in the circuit court of Morgan county, but the right and title to said bonds shall be decided in the suit now pending in the Morgan county circuit court.</p> <p>“June 5, 1863.</p> <p>“Lucius Hopkins,</p> <p>“ A. Studwell,</p> <p>Trustees of Illinois Biver Bailroad Oo.”</p> <p>On the 21st day of May, 1864, Allen, Arnold and Trow-bridge, by proper instrument of conveyance, conveyed and transferred to the Peoria, Pekin and Jacksonville Bailroad Company the railroad, franchise and property of the Illinois Biver Bailroad Company, which had been sold and conveyed to them as before stated.</p> <p>Before the Peoria, Pekin and Jacksonville Bailroad Company constructed any additional road to that which had been already constructed by the Illinois Biver Bailroad Company, there was some talk and pretense by those in charge of its management, to continue the line of the road in such direction as not to touch at or in the vicinity of Jacksonville, and this caused considerable uneasiness and anxiety on the part of those interested in the prosperity of Jacksonville, and led to propositions between Allen, the president of the company, and leading citizens of Jacksonville, with regard to the construction of the road to Jacksonville, the conclusion of which was that the road was to be built to Jacksonville in consideration of a subscription by the city for $50,000 in the stock of the company, and the donation of $20,000 by the county of Morgan of the county bonds which had been issued to the Illinois River Railroad Company, and which, it was assumed, were under the control of the county court.</p> <p>The $50,000 subscription was made by the city of Jacksonville, and the company got possession of the $20,000 Morgan county bonds, but whether this last was rightfully done or not, there is quite a conflict in the evidence. Ho order was entered of record relating to the matter. Whitlock, the county judge, and Dunlap, one of the associate justices of the county court, swear that the order for the delivery of the bonds was agreed upon at the March term, 1869, of the county court, and that the clerk was to enter it of record. Hardin, the other associate justice, swears that no such order was agreed upon. Whitlock and Dunlap, however, do not agree as to the terms upon which the bonds were to be delivered to the company; Whitlock recollecting that they were to be delivered as a donation, and Dunlap that stock in the company was to be received for them.</p> <p>The recollection of Whitlock is, in all respects, sustained by that of Morrison, then acting as attorney for the railroad company, and in part by that of the county clerk. The reason given by the county clerk for not entering the order of record is, that he understood it was to be prepared by Morrison, and Morrison says he did not know that it was desired he should prepare the order.</p> <p>The bonds were delivered by Whitlock, the county judge, to Morrison, under an agreement that he was to execute an instrument in writing, binding himself to retain them in his custody until the road was completed to Jacksonville, and then deliver them to the company. Upon receiving the bonds, Morrison, in conformity with the agreement, executed and delivered to Whitlock the following instrument:</p> <p>“The county court of Morgan county, Illinois, have delivered to me, for the use of the Peoria, Pekin and Jacksonville Railroad Company, $20,000 in bonds of the county of Morgan, being 40 bonds, numbered from 61 to 100, both inclusive, for $500 each, with 6 per cent interest warrants attached, from March 1, 186—, to March 1, 1877, inclusive; said bonds being payable to the Illinois River Railroad Company, or bearer, and said bonds are to be held by me with interest warrants until the said Peoria, Pekin, and Jacksonville Railroad Company shall complete the construction of their road, now under process of construction, from Virginia, Cass county, Illinois, to Jacksonville, Illinois, and put the same in running order and in operation, at which time said bonds and interest warrants I am to deliver over to said company, or to its orders, and for its exclusive Use.</p> <p>“ Isaac L. Morrison.”</p> <p>After receiving the $50,000 Jacksonville subscription, and the $20,000 of Morgan county bonds, the railroad company proceeded to construct the road from Virginia to Jacksonville, and had the cars running thereon by the 1st day of July, 1869. The county judge then surrendered to Morrison his obligation, and directed him to deliver the $20,000 of county bonds to the railroad company, which he did.</p> <p>Morrison received $10,000 of these bonds from the railroad company to his own use, and he subsequently sold and transferred two of them to an innocent holder without notice.</p> <p>Having thus stated an outline of the various steps which led to the issue of the bonds involved in the controversy, and their being in the possession they now are, it will be necessary to go back and give a brief history of the litigation which has been had affecting them.</p> <p>On the 31st of January, 1862, the directors of the Illinois River Railroad Company audited the accounts of its president, R. S. Thomas, and acknowledged an indebtedness to him of $16,502.24, and directed the secretary to draw an order in his favor on any funds belonging to the company, for that amount.</p> <p>At the October term, 1862, of the Mason circuit court, Vail obtained a judgment against the Illinois River Railroad Company for $4,180.18, upon which execution was issued and returned nulla bona.</p> <p>At the November term, 1862, of the Peoria circuit court, Ladd obtained judgment against the same- company for $1,567.38, upon which execution was also issued with like return as in the other case. These parties, thereupon, caused Elliott & Brown, the bankers with- whom the Morgan county bonds had been deposited, as before stated, to be garnisheed on their respective judgments.</p> <p>At that time, as now, William Thomas was the holder of the two orders which had been issued by the railroad company to Allen & McGrady for $2000 each, drawn on Elliott & Brown, and payable in Morgan county bonds.</p> <p>Elliott & Brown, thereupon, on the 28th day of February, 1863, filed a bill of interpleader in the circuit court of Morgan county, making R. 8. Thomas, William Thomas, Vail, Ladd, the Illinois River Railroad Company, the county of Morgan, and the trustees, Studwell, Hopkins & Cobb, defendants, and praying that they interplead, and that their respective claims upon the bonds should be adjudicated. The defendants all answered, and at the September term, 1863, an interlocutory decree was made, directing that the bonds be brought into court, after deducting $200 interest coupons for charges and solicitors’ fees ; that they be placed in the hands of M. P. Ayers & Co., as custodians, to await the further order of the court; that the several claimants interplead, etc. From the final decree rendered in that case, all the parties, except Morgan county, appealed to this court, where the case was heard at the January term, 1866. The decision here was in favor of Ladd and Vail, but against the other claimants, R. S. and Wm. Thomas. A full statement of the case will be found in Thomas et al. v. The County of Morgan, 39 Ill. 498.</p> <p>Upon the ease being remanded to the circuit court, that court found that the value of the Morgan county bonds then was 50 cents on the dollar; that there was, at that time, due Ladd, on his claim, §1913.19, and to Vail, on his claim, $5094.91; and decreed that M. P. Ayres & Co., upon receiving the receipts of Ladd for the amount of his claim, deliver to the county $4782.97 of the bonds, and upon receiving the receipt of Vail for the amount of his claim, deliver to the county $12,737.27 of the bonds, and that the balance of the bonds be retained by M. P. Ayres & Co. Pursuant to this decree the county paid off the claims of Ladd and Vail, presented their receipts to Ayres & Co., and took up and canceled thirty-five of the bond's, leaving the remaining sixty-five bonds, amounting to $32,500, still in the hands of Ayres & Co.</p> <p>Blair, and various other persons, assuming to be creditors of the Illinois River Railroad Company, having obtained judgment, as they claimed, against it, and had executions issued thereon, which were returned nulla bona, in September, 1867, commenced suit, by bill in chancery, in the Morgan circuit court, against the Illinois River Railroad Company, the county of Morgan and M. P. Ayres & Co., for the purpose of subjecting the bonds remaining in the hands of Ayres & Co. to the payment of their claims.</p> <p>Subsequently, and before the cause was brought to a hearing, Studwell, Hopkins & Cobb filed a bill in the Circuit Court of the United States for the Southern District of Illinois, against the county of Morgan and others, praying that these bonds be subjected to the payment of the amount which was, as before stated, found to be due from the Illinois River Railroad Company on foreclosing the mortgage or deed of trust.</p> <p>Before the return day of the writ in that case, and during the November special term, 1867, of the Morgan circuit court, the attorneys representing Blair and others consented that the administrator of B. S. Thomas, then deceased, and Francis Lowe, should be made parties to their bill, which was accordingly done. And being apprehensive that, if the suit should not then be disposed of, Studwell, Hopkins & Cobb might dismiss their bill in the United States Court, and also ask to be made parties to their bill, these attorneys then proposed to the attorneys representing Morgan county, that if the county would permit the suit to come to trial and be disposed of at that term, the creditors claiming the bonds would allow the county to redeem the bonds, and they would treat their claims against the county as fully satisfied if it would deliver to them $6000 in the bonds and pay them $6000 in cash. This proposition was accepted on behalf of the county, with the modification that William Thomas should be allowed, if he so elected, to bring in his claim and receive a pro rata share of the amount to be paid, with the other creditors, upon like terms with them ; but if he refused to do so, then the payments were to be made as proposed, and applied to the claims of those creditors who were parties to the bill. William Thomas being notified of the agreement in the case, and requested to bring in his claim and share with the other creditors, declined having anything to do with it. Thereupon the agreement was consummated as first proposed. Decree was entered without, in fact, hearing evidence, although the contrary is made to appear in the record, establishing the claims of the several creditors who were parties to the bill, amounting in the aggregate to some $40,000, and directing'that the $32,500 of bonds remaining in the hands of M. P. Ayres & Co. should be applied to their payment; that, unless the county and the creditors should agree upon the price of the bonds, the master in chancery should sell them at public auction, etc.; but if they should agree on a price, the master in chancery should deliver to them so many of the bonds at the agreed price as would satisfy the several claims, and that he execute the decree at that term.</p> <p>At a subsequent day of the same term, the master in chancery reported to the court that the creditors and the ■ county having agreed that the former should receive all the bonds which had been left in the custody of Ayres & Co. in discharge of their several claims, he had accordingly delivered them over to the creditors, which was then approved by the court. After this, the county paid to the creditors $6000 in cash and took up all of the bonds but $6000, which were paid to the creditors pursuant to the agreement made before the decree was rendered, making $26,500 thus taken up. Of this amount, the county subsequently canceled $6500, and the remaining $20,000 are the same which were obtained by the Peoria, Pekin and Jacksonville Railroad Company.</p> <p>At the January term, 1868, of the United States. Circuit Court for the Southern District of Illinois, Morgan county filed its answer to the bill of Studwell, Hopkins & Cobb, setting up the proceedings in the Blair case, (omitting to mention that the decree was by agreement,) claiming that the bonds were all either canceled or appropriated, etc. Upon this, the bill of Studwell, Hopkins & Cobb was dismissed.</p> <p>The bill of William Thomas was filed in the circuit court of Morgan county on the 27th day of April, 1868, against the county of Morgan, West, Sehooley and others. The county interposed a demurrer, which was sustained by the court below, and from that ruling an appeal was prosecuted to this court, where the cause was heard at the January term, 1871, and judgment rendered reversing the decree of the court below and remanding the cause for further proceedings. The case is reported as Thomas v. The County of Morgan et al. 59 Ill. 480, where a full statement of the substance of the bill of the complainant will be found.</p> <p>After the remanding of the cause, the county of Morgan answered the bill, claiming that its bonds had been all canceled except those disposed of pursuant to previous decrees of the court. Answers were also filed by the other defendants. West and Sehooley filed cross-bills, to which answers from the'proper parties were also filed. Replications were filed to all the answers.</p> <p>The claim of Schooley, set up in his cross-bill, is for services rendered by him as secretary of the Illinois River Railroad Company, for which he received orders drawn by R. S. Thomas, president, on the treasurer of the company, three dated December 3, 1860, two for $100 each, and one for $57.05, and one April 7, 1862, for $200, all bearing ten per cent per annum interest from date.</p> <p>• West’s claim, as presented by his cross-bill, is for $69.63, as evidenced by a due bill signed by the Illinois River Railroad Company, by R. S. Thomas, its president, dated on the 4th of January, 1860, and bearing interest at the rate of ten per cent per annum.</p> <p>Neither Schooley nor West was a party to any of the prior legal proceedings by the creditors of the Illinois River Railroad Company seeking to reach the Morgan county bonds, and their claims against the company are fully established by proof.</p> <p>On the 28th of June, 1870, the county of Morgan filed its bill in chancery in the circuit court of that county, against the Peoria, Pekin and Jacksonville Railroad Company, to obtain possession of the $20,000 of its bonds in the hands of that company, upon the ground that they were improperly and fraudulently obtained by it. Upon the defendant’s answer being filed, showing that $10,000 of these bonds had been delivered to Isaac L. Morrison, by an amendment to the bill he" was made a defendant also.</p> <p>Again, on the 20th of February, 1873, William Thomas, Schooley and West were also made defendants.</p> <p>The defendants all answered, and Schooley and West filed cross-bills setting up their respective claims, and asking their payment decreed, substantially, as in the case of William Thomas. Answers were filed to the cross-bills, and replications were then filed to all the answers.</p> <p>At a special chancery term of the Morgan circuit court, held in September, 1873, the following stipulations were, by agreement of all the parties, entered of record :</p> <p>“It is ordered, by consent, that the case of William Thomas against the county of Morgan and others, be tried with the case of the county of Morgan against the Peoria, Pekin and Jacksonville Railroad Company and others, as one suit.</p> <p>“2d. That the depositions taken in the case of the county of Morgan against the Peoria, Pekin and Jacksonville Railroad Company, may be read on the trial of said cases as so tried.</p> <p>“The foregoing stipulations shall, in no respect, diminish the rights of said Thomas, but he shall have and may exercise all the rights of which he would be possessed if his case was tried separately.</p> <p>“The foregoing stipulations shall extend to the cases of H. L. Schooley against Morgan county and others, and S. West against the same.</p> <p>“The foregoing stipulations shall, in no respect, diminish the rights of the Peoria, Pekin and Jacksonville Railroad Company, or the rights of Isaac L. Morrison, or the county of Morgan, but each and all of said parties shall have and may exercise all the rights of which he or they would be possessed if the cases were tried separately.”</p> <p>The court, on hearing, at the same term, decreed: “That the bonds of Morgan county, originally issued to the Illinois River Railroad Company, dated the 10th day of September, 1857, for $500 each, numbered from No. 61 to No. 80, inclusive, amounting to $10,000, heretofore delivered to the Peoria, Pekin and Jacksonville Railroad Company, together with the interest coupons thereto belonging, maturing on the 1st of March, 1870, and thereafter, be restored to the custody of the county of Morgan by the delivery of the same to the clerk of the Morgan county court, by said Peoria, Pekin and Jacksonville Railroad Company, on or before the 1st day of November, 1873.</p> <p>“2d. That the bonds of Morgan county, originally issued to the Illinois River Railroad Company, dated the 10th day of September, 1857, for $500 each, numbered from Ho. 83 to Ho. 100, inclusive, amounting to $9000, heretofore delivered to the Peoria, Pekin and Jacksonville Railroad Company, and by said company transferred to Isaac L. Morrison, and now in the possession of the said Morrison, be restored, together with the interest coupons thereto belonging, maturing on the 1st day of March, 1870, and thereafter, to the custody of the county of Morgan, by the delivery of the same to the clerk of the Morgan county court, on or before the 1st day of Hovember, A. D. 1873.</p> <p>“3d. That the said bonds, when restored to the custody of the county of Morgan, shall be held, except so far as the same are disposed of by this decree, as the same were held previous to their delivery to the said Peoria, Pekin and Jacksonville Railroad Company.</p> <p>“4th. That, of the bonds so restored to the custody of the said county of Morgan, the said county of Morgan shall, within ten days after acquiring possession thereof, deliver to William Thomas, in discharge of his claim as assignee of Allen & McGrady, eight of said bonds, with interest coupons thereto belonging, from March, 1860.</p> <p>“5th. That if*the county of Morgan shall not be able to deliver to said William Thomas coupons as above directed, by reason of their cancellation or otherwise, then, in lieu of said coupons not delivered, the county shall pay, on the delivery of said eight bonds, the equivalent, at par value, in money.</p> <p>“6th. That- Mahlon H. L. Schooley is adjudged to have a claim against the Illinois River Railroad Company to the amount $1012.84; and the said Benjamin S. West is adjudged to have a claim against the Illinois River Railroad Company to the amount of $163.64; that the said bonds of Morgan county, not disposed of by this decree, are assets, applicable to the payment of said claims of Schooley and West; that, of said bonds so to be restored to the custody of Morgan county and not otherwise disposed of by this decree, the county of Morgan shall deliver to the master in chancery of Morgan county, within ten days after acquiring possession of the same, so many of' said bonds, with coupons attached, as will produce a sum sufficient to pay the claims of the said Schooley and West, and the costs of their cross-bills; that the said master in chancery sell said bonds so delivered to him, with coupons attached, at public sale, for cash, and apply the proceeds of the sale to the payment of the claims of said Schooley and West, with six per cent interest from the - date of this decree, and costs of sale and costs of cross-bills, adjudged as aforesaid, the said master having first given twenty days’ notice of the time, place and terms of sale, by publication in some newspaper published in Jacksonville, Illinois.</p> <p>“7th. That the Peoria, Pekin and Jacksonville Railroad Company, and Isaac L. Morrison, pay the costs of the said suit of the county of Morgan against the Peoria, Pekin and Jacksonville Railroad Company and others.</p> <p>“8th. That the county of Morgan pay the costs of the said suit of William Thomas against the county of Morgan and others, and the costs of the cross-bills of Schooley and West.”</p> <p>Appeals from this decree are prosecuted by the county of Morgan, the Peoria, Pekin and Jacksonville Railroad Company and the Illinois River Railroad Company, and Isaac L. Morrison, all of Avhom have assigned errors. William Thomas also assigns cross errors.</p>

<p>Writ of Error to the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding.</p> <p>Mr. B. F. Peterson, State’s Attorney, and Messrs. Lane & Finlay, for the People.</p>

<p>Writ of Error to the Circuit Court of Montgomery county; the Hon. H. M. Vandeveer, Judge, presiding.</p> <p>This was a bill in chancery, filed by Andrew J. Tannock and George P. Fowler against Jeremiah Driscoll and others, to foreclose a deed of trust, Fowler being the trustee in the deed of trust. The facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. Charles S. Zane, Judge, presiding.</p> <p>This was an action of debt, brought by Mary J. Gobble against John M. Linder, upon an agreement for the exchange of farms between the parties. The facts may be found in the opinion of the court.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Cybus Epleb, Judge, presiding.</p> <p>This was an action of assumpsit, brought by the appellee against the appellant.</p>

<p>Appeal from the Circuit Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding.</p> <p>This was an action of assumpsit, by Melgar C. Paul against Jackson Grimshaw, to recover for services as the defendant’s deputy in collecting and forwarding certain taxes. The plaintiff in the court below recovered judgment for $112.50, from which the defendant appealed. The principal and material facts appear in the opinion.</p>

<p>1. Mistake—proof, as against subsequent incumbrancer. As against a subsequent incumbrancer, the admission of the mortgagor of a mistake in the starting point of the boundaries of the prior mortgage is not sufficient evidence. To affect such subsequent incumbrancer’s rights, there must be proof of the mistake, and that he had notice of it at the time he took his mortgage.'</p> <p>2. Same—proof of mistake and notice. In this case a party gave the complainant, a'jaortgage ón a lot described by metes and bounds, and as commencing “fifty feet, nine inches and thirty feet east of the north-west corner” of a certain quarter section of land, being the same description as in the mortgagor’s deed under which he held possession of the premises, commencing fifty feet nine inches south and thirty feet east of the north-west corner of the quarter. The mortgage was duly recorded, and the mortgagor subsequently gave a second mortgage to the defendants on the lot by its number as laid off. The defendants, in their answer; admitted that they knew the first mortgage covered part of the lot described in their mortgage: ' Held, that the' facts were sufficient to show the mistake and charge the defendants with constructive notice of that fact</p> <p>' 3. Noticís—what amounts tel Whatever is notice enough to excite attention and put a party pfi'his guard and call for inquiry, is notice of everything to which such inquiry might have led, and every unusual circumstance is a ground of suspicion, and prescribes inquiry.</p>

<p>1. Taxation—-foreign corporations doing business in this State. The legislature has the power to impose taxation upon foreign corporations to whatever extent it may, in its discretion, choose, as the condition upon which they shall be allowed to exercise their franchises and privileges in this State. ■%</p> <p>2. Same—capital stock of foreign corporation not tamable undw act of 1872. Under the provisions of the “Act for the assessment of property and for the levy and collection of taxes,” in force July 1,1872, the State Board of Equalization have no authority of law to assess the .capital stock of foreign corporations doing business and exercising their franchise in this State, that act only giving power to make such assessments in respect to corporations created by or under the laws of this State.</p>

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

A. J. Gallagher, Judge, presiding. This was an application for judgment against certain real estate of the Illinois Industrial University, for taxes. -The case was submitted and heard in the circuit court, upon the following agreed statement of facts: That the lands were assessed for the year 1870 in the sum of $228.52, State, county, road, bridge and school taxes; that the same remained unpaid ; that legal notice of the application for judgment h'ad been given; and that the…

Writ of Error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding. This was an indictment against the plaintiff in error for selling intoxicating liquor to a minor.

J. C. Allen, Judge, presiding. This was an action of assumpsit, brought by Anderson Fogleman, for the use of Reuben Bloomfield, against the school directors of district Mo. 3, in township 9 M., range 8, in Cumberland county, Illinois, upon three orders drawn by previous directors on the township treasurer.

Thomas F. Tipton, Judge, presiding. This was a suit by Jonathan Spencer, against the appellant, to recover for the killing of plaintiff’s hogs. The plaintiff recovered a judgment for $31.50, and the defendant appealed.

This was a petition, filed by Thomas Tutewiller, Edwin Mattoon, Philander North way, Martha A. Walthrup, Harlow Park and William H. Rissler, against Nehemiah Faucher, Henry D. Faucher and Walter N. Ruffner, asking for the appointment of commissioners to settle and establish a line in dispute. The court approved the surveyors’ report, from which order Nehemiah Faucher appealed.

<p>1. Constitutional law—State Board of Equalisation. Under the constitutional provision which requires the value of property for taxation “to be ascertained by spme person or persons to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise,” the legislature is not prohibited from creating a State Board of Equalization, and investing it with power to equalize the assessments of the different counties for the purpose of producing uniformity in the valuation.</p> <p>2. Taxation—relief from excessive valuation. Where the State Board of Equalization increased the valuation of personal property in a county 68 per cent, whereby a party who had given in his moneys, which were assessed by the county assessors relatively too high, was required to pay on a valuation greatly in excess of its real value, it was held, that a court of equity could not relieve him, as he had his remedy before the board of review in his township, and also before the board of supervisors, and not having availed of it, he must bear the consequences.</p>

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

<p>Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p> <p>This was an action of trespass, brought by Mary W. Wray against Daniel O. Crist, Henry Houscheid, and Joseph V. Ater, for the taking and carrying away of a piano and an organ.</p>

• Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding. This was a bill, filed by Cyrus Matthews against Joseph A. Meeks, Andrew H. Meeks, William G. Gallaher, Alexander Edgmon, Wilson J. Larimore, Abraham Wood, and James Montgomery. The object of the bill and facts of the case are stated in the opinion.

<p>New tbial—as to the finding from the evidence. Where the evidence of the parties upon the controverted points is conflicting, it is the peculiar province of the jury to harmonize and settle the conflicting proof, and if the jury have been properly instructed, and a fair trial had, a new trial will not be awarded, unless there is a clear preponderance of the evidence against the verdict.</p>

<p>Writ 6p Error to the Circuit Court of Moultrie county ; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Oliver L. Davis, Judge, presiding.</p> <p>This was an action, brought by Ellen Smith, against Hugh Wright, in the county court of Vermilion county, upon a promissory note and on various loans of money. On the trial in the county court, the plaintiff, by counsel, remitted all the interest due which, would make the demand over $500, but the court refused "to allow the plaintiff to throw off the interest, and instructed the jury that “they must consider all the evidence without regard to any drawback offered by either party.” The jury then returned a verdict for $616.30, whereupon the plaintiff offered to remit $116.30, which the county court refused to allow, and dismissed the suit for want of jurisdiction. The plaintiff took the case by appeal to the circuit court, where the judgment of the county court was reversed and the cause remanded. From this judgment of the circuit court the defendant appealed to this court.</p>

<p>Writ of Error to the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding.</p> <p>This was an indictment against Trevior Slattery, for producing the miscarriage of his wife, Celestia Slattery, by beating her, etc. The defendant was convicted, and sentenced to three years’ imprisonment in the penitentiary.</p>

<p>Intoxicating liquors—exemplary damages. In a suit by a wife against a party, for selling liquor to her husband, to recover damages for an alleged injury to her means of support, where the evidence tended to show that the defendant endeavored to prevent the husband from getting liquor at his place; that he frequently refused him, and instructed his clerk to refuse him liquor, but showed that the husband procured it through others, concealing his name, and there was no attempt to show how or in what manner the plaintiff’s means of support was affected by defendant selling liquor to her husband, it was held, that there was no foundation laid for exemplary damages; and where the only instruction given for plaintiff was based upon exemplary damages, which resulted in a verdict of §300 damages, the judgment thereon was reversed.</p>

Chakles S. Zane, Judge, presiding. This was an action of trespass, brought in the Macon circuit court, by Stephen A. Randall against David Blalock, the declaration containing seven counts, the last two being in case for malicious prosecution. The defendant pleaded the general issue, and two special pleas of j ustification to the counts in trespass. The venue was changed to Sangamon .county. The following is a copy of the special pleas, omitting formal parts: “ 2.

<p>1. Real estate—right to lateral support of adjacent soil. It is a well settled rule of law, that the owner of land has a right to have the soil of his premises sustained by the lateral support of the natural soil of the adjoining land, but this right is limited to the soil in' its natural state," and does not extend to the support of any additional weight which the owner of the soil may place upon it, such as a building or other superstructure, near his boundary line.</p> <p>2. Same—no servient right in respect to use of adjacent premises. The owner may use his land in such reasonable way as his judgment shall dictate, either by making excavations or superstructures thereon, subject, however, to the implied condition that he shall not thereby interfere with his neighbor in the enjoyment of the same right in respect to his adjacent land. Each is entitled to have his soil in its natural state sustained, when necessary, by the lateral support of the adjacent soil of the other, but neither has the right to burden the land of the other with the support of any additional weight, as that would be to make the land of the one servient to that of the other.</p> <p>3. Same—right to remove lateral support of soil to a, building of another, must be for a legitimate use, and exercised in a can'eful mannerr. Where a party has erected a building upon his own land, but very near the land i of another, such other will not be protected in making an excavation on (his land so as to injure the building out of malice or mere caprice, but such excavation must be consistent with a reasonable and legitimate use of the party’s own property, and the right must also be exercised with reasonable skill and care, in view of the character of the building and the nature of the soil, so as to avoid doing unnecessary injury to the building.</p> <p>4. If injury is sustained to a building iu consequence of the withdrawal of the lateral support of the neighboring soil of another, where it has been withdrawn with reasonable skill and care to avoid unnecessary injury, there can be no recovery; but if injury is done the building by the careless and negligent manner in which the soil is withdrawn, the owner will be entitled to recover to the extent of the injury thus occasioned.</p> <p>5. Bio-ht to servitude—by contract or prescription to lateral support of building. The owner of a building situate upon the line or boundary of his land may acquire a right to the lateral support of the same from the soil of the adjacent owner by contract or by prescription. This right will constitute a burden upon the adjacent property.</p> <p>6. Prescription—subject of, must be subject of a grant. A prescription can not be for anything which can not be raised.by grant; for the law allows a prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have been made.</p> <p>7. Same—right by, can not exist in use of a street. As an incorporated town or city holds the title to its streets and alleys for the use of the public, and have no rightful authority to grant them for any purpose inconsistent with the public use, it follows that an individual can not acquire a prescriptive right therein for any private use.</p> <p>8. The doctrine seems well settled that an adverse right to an easement can not grow out of a mere permissive enjoyment for any length of time.</p> <p>9. Streets—liability for injury to lot owner in opening and grading. A municipal corporation, while acting within the scope of its authority in making excavations in a street for the purpose of opening or improving it, using proper care and skill, is not liable to a lot owner for an injury resulting to his buildings from the removal of the lateral support of the soil in the street.</p>

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

<p>1. Release oe ebbobs—accepting proceeds of sale. When a party accepts the benefits of a decree, he can not, afterwards, prosecute a writ of error to reverse it. Such act operates as an estoppel, and may be treated as a release of errors. And any act by a party which would render it fraudulent to reverse a decree, maybe relied on as a release of errors.</p> <p>2. So, where the lands of minors were sold under proceedings for partition, and the minors, after coming of age, settled with their guardian and received their share of the proceeds of the sale, this was held sufficient to bar them from prosecuting a writ of error to reverse the decree in the partition suit.</p> <p>3. Same—plea of. A plea to a writ of error which simply avers that the errors were released, without stating in what manner, or whether by deed, ly parol, or by acts in pais, is too general. It should state the facts that are relied on as a release of errors.</p> <p>4. Presumption—as to Tenowleige of facts. Where a party, after arriving at age, settles with his guardian, and receives moneys in the hands of the guardian belonging to him, and derived from a sale of his real estate, it will be presumed that he received the same with a knowledge of the source from whence it came, and did the act deliberately.</p>

Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding. This was an action of debt, by David M. Swearingen against Sidney M. Pitt and John Phiper, upon an appeal bond, given on appeal in a forcible entry and detainer suit. The bond was the common, ordinary appeal bond, conditioned for prosecuting the appeal with effect, and the payment of the judgment, costs, etc., rendered on the trial or dismissal of the appeal.

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

Lyman Lacey, Judge, presiding. April 15, 1870, James Jackson, being under indictment in theLogan county circuit court for an alleged criminal offense, and required to give bail in $1000, being the owner of the quarter section of land situate in that county, and having retained the law firm of Wyatt & Hackney to defend him, entered into an arrangement with his counsel, or Hackney, whereby the latter should become bail, and Jackson was to secure him as such bail, and the firm,…

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Johh G. Rogers, Judge, presiding.</p> <p>This was an indictment against the plaintiff in error. The first count charged that the defendant, “on, etc., at, etc., by a certain game or device by the use of cards, did unlawfully, feloniously and fraudulently obtain of James Armstfbng thirty four-dollar bank bills, current money of the Dominion of Canada, of value of four dollars each, thirty four-dollar bank notes, current money of Canada, of value of four dollars each, thirty four-dollar bank notes of the Merchants’ Bank of Canada, valued at four dollars each, current money in Dominion of Canada, five dollar current bank notes of Canada money, of value of five dollars each, one ten dollar current bank bill, Canada money, of value of ten dollars, one hundred and twenty dollars in bank notes and current bank bills of the current money of the Dominion of Canada, of divers issues and denominations to the grand jurors unknown, of value of one hundred and thirty dollars, the property of said Armstrong, contrary,” etc.</p> <p>The second count charged that the defendant, on, etc., at, etc., “by a certain game, device or trick, by the use of cards and other implements, did then and there unlawfully, feloniously and fraudulently obtain of and from the said James Armstrong the moneys and personal property aforesaid, of the value aforesaid, of the money and personal property of the said James Armstrong, contrary to the statute,” etc.</p> <p>The third count charged that the.defendant, on, etc., at, etc., “by a certain game, device, sleight-of-hand, or trick, by the use of cards and other implements and instruments, the names and descriptions of which are to the grand jurors aforesaid unknown, did then and there unlawfully, feloniously and fraudulently obtain of and from the said James Armstrong the money and personal property aforesaid, of value aforesaid, the money and personal property of the said James Armstrong, contrary,” etc,</p>

<p>• Appeal from the Circuit Court of Edgar county; the Hon. Oliver L. Davis, Judge, presiding,</p>

Writ op Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding. This was an information in the county court of Champaign county, against William Parris, Isaac Jones, John Parris, George Parris, and Walker ¡Richards.

C. B. Smith, Judge, presiding. This was an action on the case, by Andrew J. Miller, administrator of the estate of James D. Miller, deceased, against the Toledo, Wabash and Western Railway Company, to recover damages for negligently and wrongfully causing the death of the intestate. A trial was had, the jury finding the defendant guilty, and assessing plaintiff’s damages at $3500.

<p>1. Contract—to make a hedge, construed. Where a person taking a' lease of a quarter section of land for the term of five years, covenanted to plant and grow a good and substantial hedge fence by the close of the term, it was held, that the true meaning of the contract was, that a hedge as good as could reasonably be made before the expiration of the lease, should be made. It did not impose the duty of making a hedge that would turn stock, but only that the lessee should plant and faithfully cultivate it during the term.</p> <p>2. Instructions—critical exactness will not always be required. Although, there may be objections to part of the instructions given, when criticised, yet if taking them together, as a whole, the law of the case is fairly presented, and justice is done by the verdict, the judgment will not be reverted.</p> <p>3. Bill or exceptions—evidence must be shown to have been offered. In a suit upon a lease for a breach of its covenants, where the bill of exceptions fails to show that the lease was offered in evidence, it can not be considered by this court, although the clerk has copied it into the record:</p>

Thomas F. Tipton, Judge, presiding. This action was assumpsit, in the McLean circuit court, by appellee against appellant, to recover damages for the breach of an alleged parol contract, whereby the latter promised to construct certain culverts and a fence upon appellee’s land, and along appellant’s right of way through the same.

<p>Writ of Error to the County Court of Scott county; the Hon. Thomas P. Bowen, Judge, presiding.</p> <p>This was a prosecution against George C. Peak, for bastardy, on the complaint of Elzina Laws. The defendant was convicted, and this writ of error is prosecuted by him to reverse the judgment.</p>

Hon. Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, by William D. Johnson, against James Welsh, upon a promissory note. The court, in assessing the plaintiff’s damages, found $28.10 more than was due on the note, which was assigned for error. The appellee, on the first day of this term of this court, appeared and remitted $28.10 of the judgment.

<p>Mortgage—as against one perfecting title in trust for the person owing the mortgage debt. Where a married woman conveyed land owned by her, to A, taking back notes secured by mortgage on the land for the purchase money, but her husband did not unite with her in the deed under the belief it was not necessary, and A afterwards sold to the defendant, who went into possession, promising to pay the notes of A, and gave his mortgage on the premises to A for the balance due above the notes of A outstanding, and the defendant afterwards, on learning of the defect in his title, sent his son to procure a deed from the original vendor and her husband, which they gave to remedy the defect, but the son took the deed in his own name: Held,, on bill by the assignee of the first notes and mortgage to foreclose, and on cross-bill by A to foreclose, that the acquisition of the legal title in the manner stated presented no bar to the foreclosure, and that the title claimed by the son was subject to both mortgages, he being but a trustee for his father.</p>

<p>1. Recognizance—no order necessary for issuing scire facias. No order of court is necessary for the issuing of an alias scire facias upon a forfeited recognizance. It is made the duty of the clerk to issue a scire facias upon the order of the court declaring a forfeiture.</p> <p>2. Practice—time for objecting to evidence for va/riance. An objection to evidence, on the ground of variance, should be made when the same is offered. If this is not done, the question can not be raised in this court.</p> <p>3. Limitation—after reversal. Under the statute prohibiting any further action in a cause after reversal in this court, unless the transcript of the final order is filed in the court below in two years from the time of making such order, the limitation will not begin to run until after final judgment is rendered in the Supreme Court. It will not commence from the adjournment of the term at which the cause is submitted.</p>

Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, brought by John H. Charles, against Charles Montelius and John A. Montelius, upon a draft for $291. The facts of the case will appear in the opinion, except that the following is a copy of the notary’s protest and certificate: “State of Illinois, County of Cook, City of Chicago.

C. B. Smith, Judge, presiding. This was an action on the case, by John Jones against the Toledo, AYabash and AYestern Bail way Company. The opinion states the essential facts of the case.

Lyman Lacey, Judge, presiding. Tin's was an action on the case, by Milam M. Engle against the Chicago and Alton Railroad Company, to recover damages for the killing of plaintiff’s horse in the incorporated town of Greenview, by one of defendant’s trains of cars. The ground of recovery, alleged in the declaration, was the running of the train at a greater rate of speed than six miles an hour through the town, in violation of an ordinance of said town.

Lyman Lacey, Judge, presiding. This was an action commenced by Robert D. McClure, Thomas Culter, Jared B. Wing and Charles P. Culter, partners under the name of McClure, Culter & Co., against Caleb W. Slade, Stephen Sexton and George W. Henninger, partners under the name of Henninger, Slade & Sexton, before a justice of the peace, and taken by appeal to the circuit court. Slade alone was served with process, the other defendants not being found.

<p>Practice—withdrawing papers from the files. A paper in a cause, when filed with the clerk, is a file of the court, and should not be withdrawn without leave of the court. But where a declaration, after being filed, was withdrawn from the files by the plaintiff’s counsel, but restored to the file before the time for the defendant to plead had expired, and it not appearing that the defendant had any defense of any kind to the note sued on, or had sustained any injury: Reid, a judgment in favor of the plaintiff would not be reversed for the refusal of the court to continue the cause for this irregularity.</p>

<p>1. Chancery—abating nuisances. A court of equity will always act with reluctance in abating a nuisance, and seldom until it has been found to be such by a jury. But where the injury resulting from the nuisance is iu its nature irreparable, as, when loss of health, loss of trade, destruction of the means of subsistence, or permanent ruin to personal property will ensue, from the wrongful act or erection, courts of equity will interfere by injunction.</p> <p>2. Same—preventing the creation of nuisance. A court of equity will not, in general, interfere until an actual nuisance has been committed; but it may, by virtue of its jurisdiction to restrain acts which, when completed, will result in a ground of action, interfere before any actual nuisance has been committed, where it is satisfied that the act complained of will inevitably result in a nuisance.</p> <p>3. Same—irreparable injury defined. By irreparable injury is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages, or necessarily great injury or great damage, but that species of injury, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other; and because it is so large on the one hand or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law.</p> <p>4. Nuisance—primes. Privies are regarded as prima facie nuisances, and, although necessary and indispensable in connection with the use of property for the ordinary purposes of habitation, yet, if they are built or allowed to remain in such á condition as to annoy others in the proper enjoyment of their property, by reason of either the noisome smells that arise therefrom or by the escape of filthy matter therefrom upon the premises of another, or so as to corrupt the water of a well or spring, they are nuisances in fact.</p> <p>5. Same—defined generally. Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance that should be restrained; and smoke, noise and bad odors, even when not injurious to health, may render a dwelling so uncomfortable as to drive from it any one not' compelled by poverty to remain. The discomfort must be physical, not such as depends upon taste or imagination. But whatever is offensive physically to the senses, and by such offensiveness makes life uncomfortable, is a nuisance.</p> <p>6. Same—-facts of this case. Where a defendant was about erecting a privy on his own lot, about eight feet from the dwelling house and cellar, and within twenty feet of the well of the complainant, it was held, that a bill for an injunction to restrain the completion of the same would lie, there being no adequate remedy at law for the injury that would result therefrom to the complainant.</p>

Charles D. Hodges, Judge, presiding. This was a bill in chancery, filed by William D. Gullett and James J. McClimans against Charles E. Lippincott, Samuel Wells, Massey Cox, Cassius- Heskett and William M. Benner. The object of the bill appears in the opinion.

Lyman Lacey, Judge, presiding. This was an action of debt, by John G. Adams against William Brannan, Dabney Hall, Frank Bryant and Danville F. Bryant.

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

<p>Negligence—neglect to give warming and running train at prohibited rate of speed. In an action against a railroad company to recover for the killing of plaintiff’s cow by a train of cars in an incorporated town, it appeared that no bell was rung or whistle sounded, and that the train was running at a greater rate of speed than allowed by ordinance of the town. It also appeared that the plaintiff’s cow was running at large, contrary to ordinance: Held, that a verdict in favor of the plaintiff was authorized, the negligence of the plaintiff in allowing his cow to run at large being slight as compared with that of the company, which was gross, and in violation of a statute law as well as of an ordinance.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. C. 33. Smith, Judge, presiding. This was a bill in chancery, filed by Levi Conover, Martha M. Hill, Maria McGuire, John McGuire, George Hill, Helen Hill, heirs at law of James M. Hill, and James H. Pickerell, administrator of James M. Hill, deceased. The facts of the case necessary to an understanding of the points decided, are stated in the opinion of the court.

Appear from the Circuit- Court of Champaign county; the Hou. C. B. Smith, Judge, presiding. This was an action of debt, by James M. Tracy, coroner of Champaign county, for the use, etc., against Frederick Sell weizer, impleaded with Mack, Stadler & Co., of Cincinnati, Ohio. The latter were not served. The facts of the case are stated in the opinion of the court.

Lyman Lacey, Judge, presiding. This was an action on the case, brought by Robert McMurray, as trustee of Eliza B. and Charles M. McLaurie, against the city of Champaign, for an injury caused to a certain building by a change in the grade of a street so as to throw a quantity of water upon the premises. A verdict was returned and judgment rendered in favor of the plaintiff for $768 and costs. Defendant appealed.

<p>1. Contract—construction. Where two instruments in writing are made at the same time, relating to the same subject matter, they may be regarded as a single instrument and construed together.</p> <p>2. Where the language of a written contract is unequivocal, although the parties may have failed to express their real intentions, there is no room for construction, and the instrument will be enforced according to its legal effect.</p> <p>3. Same—must be between two or more parties. In a suit by the plaintiff to recover the price of hogs sold, where the defendant refused to accept and pay for the same, the written contract show'ed that the plaintiff bought the hogs of himself, and that the defendant sold the same number of hogs to himself; in other words, it appeared that each party signed the writing the other should have executed: Held, that the plaintiff could not recover, and that the contract was properly excluded by the court.</p>

Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. This was an action of.trover, brought by Joseph Hartfield against Heman Allen, J. B. Mann and William H. Mann.

Lyman Lacey, Judge, presiding. This -was a bill in equity, by George Milmine and Edward C. Bod man, against A. C. Burnham, Robert F. Davidson, James Surplis, Catharine Surplis, his wife, Harmond Stevens and Daniel Buskirk, for the correction of a mistake in, and a foreclosure of a mortgage given by Surplis and wife to the complainants. The opinion of the court states the material facts.

Oliver L. Davis, Judge, presiding. This was an action of assumpsit, brought by Lewis Smyser and John Milton, against Jacob H. Mann, upon a promissory note for $500. The facts of the case are stated in the opinion of the court.

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

<p>1. Mabshalikg- assets. The rule in equity of compelling a first resort to a particular one of two funds for a creditor’s benefit who can reach but one of them, will not be enforced when it trenches upon the rights or operates to the prejudice of the party entitled to the double fund, or works injustice.</p> <p>2. Where A and B executed a deed of trust on 80 acres of land to secure a note given by them, and afterwards, for the purpose of releasing 10 acres of the same, in use for a cemetery, B and his wife gave their trust deed on 17 acres owned by B to secure the payment of the same note, and it appeared that, at the time of the execution of the last named deed of trust, A and B had given two other mortgages on the 80-acre tract, one to C for §1500, and the other to D, the then holder of the note secured by the first deed of trust, for §2500; that the mortgage to C had been foreclosed and sold to E; and after the execution of the several deeds of trust and mortgages, the complainant purchased the 17-acre tract, and who then filed his bill to compel D and the trustee to sell the 80-acre tract before the 17-acre tract: Held, that the complainant, having purchased after the giving of the two mortgages, had no higher equity than the holders under the mortgages, and that, as the sale of the 80-acre tract first might destroy the mortgage securities, it would be unj.ust and inequitable to so decree.</p>

Writ of error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding. This was an indictment against Jacob Day, for selling intoxicating liquor to a person in the habit of getting intoxicated. .

<p>Appeal from the Circuit Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding.</p>

O. L. Davis, Judge, presiding. This was an action of debt, by the People of the State of Illinois, for the use of the board of supervisors of Clark county, against William H. Coons, and others, the sureties of said Coons, upon his bond as collector. The material facts of the case are stated An the opinion of the court.

O. L. Davis, Judge, presiding. This wfas an action on the case, by Ephraim S. Hamilton and William Cessna against the Toledo, Wabash and Western Railway Company, to recover for loss sustained on a lot of hogs from the want of watering and properly caring for them while being transported. The material facts of the case appear in the opinion.

William H. Snyder, Judge, presiding. This was an action on the case, bv Marv Durkin, administratrix of the estate of Lawrence Durkin, deceased, against the Toledo, Wabash and Western Bail way Company, to recover compensation for wrongfully and negligently causing the death of said Lawrence Durkin. The deceased was engaged as an employee of the defendant at the time he was killed.

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

This is an agreed case from the Circuit Court of Clinton O county. The only question arising in the case is fully presented by the following agreed state of facts, upon which the case was heard in the court below: “ 1.

Lyman Lacey, Judge, presiding. The opinion of the court states the facts of the.case necessary to an understanding of the points decided, except that the amendment of the declaration was simply to strike out the name of Francis S. Cogshall, and discontinue the suit as to him.

Thomas F. Tipton, Judge, presiding. This was an action on the case, by the city of Bloomington, against the Illinois Central Railroad Company. All the material facts of the case are, stated in the opinion of the Court.

<p>Writ of Error to the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Constitutional law—locating State institutions in locality lidding the highest. The act of April 19, 1869, entitled “An act to authorize cities and towns in Southern Illinois to issue bonds in aid of the Southern Illinois University,” taken in connection with the charter of the University, which makes the location of that institution to depend upon the aid and inducements which may be offered in the different localities, is not liable to any constitutional objection, although such legislation is not calculated to advance the credit and renown of the State, and in the judgment of the court, is unwise and impolitic.</p> <p>2. Same—taxation of one locality more than its just share in a State expenditure. Where a law authorized the imposition of a tax in a county, without any vote of the people, to aid the State in establishing a State institution therein, and the taxable property of such county was also required to bear its proportion of taxation equally with that in the other counties as to the residue of the cost, it was held, that the first tax was compulsory taxation under the general power to tax, and in violation of the constitutional provision requiring such taxation to be equal and uniform.</p> <p>3. Same—whether a tax voted for the 'location’ of a State institution of learning is for a corporate purpose. Where the people of a city, under the authority of a special act of the legislature, voted that the city should donate $100.000 in aid of the Southern Illinois Normal University in the event it should be located in such city, and it was so located, and the bonds regularly issued and put in circulation, it ivas held, on bill filed by the city to enjoin the collection of taxes assessed to pay interest on the same, that such debt was incurred for a corporate purpose within the meaning of the constitutional provision allowing taxation for corporate purposes, and that as the taxation was voluntarily imposed, it's collection would not be enjoined.</p> <p>4. Municipal bonds—not invalidated by mere irregulcarities. Where municipal bonds are issued in the exercise of a power constitutionally conferred, they will be binding upon the municipality, although irregularities may have occurred in the form of the notice of election and the like, not going to the power. The acts of such bodies, done under lawful power and in substantial conformity to the power, are binding. But where such bonds are issued under a void authority, or without authority, they will be void, into whatever hands they may come, and there can be no innocent holders of them.</p> <p>5. There is a distinction to be observed between the want of power to issue municipal bonds, and irregularities in the exercise of the power, the latter being unavailing against bona fide holders without notice of the irregularity.</p> <p>6. Constitutional hAW—release of indebtedness to State. Section 23, article 4, of the present constitution, which provides that the General Assembly shall have no power to release or extinguish, in whole or in part, the indebtedness, liability or obligation of any corporation or individual to the State, was not intended to embrace a release of claims doubtful or hazardous which the State may hold against a municipal or other corporation.</p> <p>7. Municipal bonds—given to fund debts. Where the legislature authorized the Governor to deliver up to a city §100,000 of its bonds, which were valid obligations, upon the payment of §30,000, and the city to raise the latter sum, under the act of March 26,1872, entitled “An act to enable counties, cities, townships, school districts and other municipal corporations to take up and cancel outstanding bonds and other evidences of indebtedness, and fund the same,” issued its bonds to the amount of §40,-000, which were sold, and the proceeds paid to the Governor, it was held, that if the action of the legislature was in violation of section 28 of article 4 of the constitution, the city would, nevertheless, be liable upon the bonds last issued by it.</p> <p>8. Same—whether issued for a corporate purpose. Where a city issued §40,000 of its bonds under legislative authority and upon a vote of its legal voters, whereby it *as relieved from the payment of over §100,000 of its prior indebtedness, it was held, that the bonds last issued were for a corporate purpose.</p> <p>9. Same—to purchase lands for donation to secure the location of a State institution. And where, in pursuance of an act of the legislature, such city was also authorized to give lands, etc., to aid in the establishment and foundation of a university, and for that purpose purchased grounds, etc., and submitted1 to vote of the people the question of issuing §30,000 of corporate bonds to make payment, which was carried, and there appeared no fraud, combination or oppression, it was held, that these last bonds were issued for a corporate purpose, and were valid obligations against the city.</p>

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

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

Lyman Lacey, Judge, presiding. This was a suit by James W. Cheaney against Aaron Hatfield and Thomas E. Clark, upon four promissory notes. The plaintiff recovered, and Hatfield appealed.

<p>Appeal from the Circuit Court of Moultrie county • the Hon. C. B. Smith, Judge, presiding.</p>

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

Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding. This was an indictment against Lewis Martin for selling intoxicating liquors without a license, to be drunk on the premises where sold. The indictment contained twelve counts.

C. B. Smith, Judge, presiding. This was an action on the case, by Harry P. Heazle against the Indianapolis, Bloomington and Western Bail way Company, to recover damages for personal injuries. The material facts of the case are found in the opinion.

Writ op,Error to the Circuit Court of Morgan county; the Hon. Cyrus Epi.ee, Judge, presiding. This was an action of assumpsit, by Joseph J. Ironmonger, against Henry B. Funk. The suit ivas commenced April 3, 1872, and summons issued to the sheriff of Morgan county, which was returned not found. An alias summons issued August 31, 1872, to Morgan county, which was returned not served.

Thomas F. Tipton, Judge; presiding. This was an action of assumpsit, by William and Thomas Smith, partners, against David D. Haggard and John W. Haggard, partners under the firm name of Haggard Bros., and James Grover, upon a promissory note. Grover was not served with process.

Oliver L. Davis, Judge, presiding. This was a petition by William B. Gilkerson, filed before a justice of the peace, for a drain over the lands of the petitioner and Harriet B. Scott, the defendant. After the report of the commissioners of highways, and the confirmation of the assessment of the jury, the defendant appealed to the county court. The county court, on motipn, dismissed the proceeding, and the petitioner appealed from this order to the circuit court.

Lyman Lacey, Judge, presiding. This was an action of assumpsit, brought by John H. Nash against Dennis Culliner, upon a promissory note. The plaintiff recovered judgment, and the defendant appealed.

<p>1. Pjractice—time of objecting to evidence. If a recognizance is variant from that described in the scire facias, the defendant must make the objection at the time it is offered in evidence. If the objection is not urged in the circuit court, it can not be in this court. .</p> <p>2. Pleading—merment against the record. It is a maxim in law that there can be no averment in pleading against the validity of a record, although there may be against its operation. Therefore, pleas to a scire facias upon a recognizance, which attempt to question the verity of the record, are bad on demurrer.</p> <p>3. Recognizance—-power of sheriff to take. The power of a sheriff to take a recognizance from a person who is indicted, is not limited to the time of making the arrest, but he may take the same at any time after he has committed such person to jail.</p> <p>4. Evidence—to contradict record. Where the record shows that a recognizance of a prisoner was taken and approved by the' sheriff, parol evidence is inadmissible to contradict it, or to show that when the same was filed there was no approval on it.</p>

Oliver L. Davis, Judge, presiding. This was an action, commenced by Moses Kahn, Mark Kahn and Felix Kahn, against the Merchants’ Despatch Transportation Company, before a justice of the peace, and taken by appeal to the circuit court, to recover for the loss of two cases of boots shipped at Worcester, in the State of Massachusetts, to the plaintiffs at Mattoon, in the State of Illinois.

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

Writ op Error to the Circuit Court of Edgar county; the Hon. Oliver L. Davis, Judge presiding. In this case, the plaintiff in error purchased of Samuel Scott, in his life time, the S. W. S. W. 7, 15 N., R. 10 W., the S. E. S. W. 7, 15 W., R. 10 W., except 15 acres off the east side, and two acres for a cemetery, also S. E. S.E. 12, 15 N., 11 W., for the sum of $1300, paying down the sum of $500, and giving notes for $800 secured by a mortgage on the last named tract.

Writ of Error to the Circuit Court of Madison county; the Hon. Joseph Gillespie, Judge, presiding. This was a bill in equity, by Conrad Schaub against Mary T. Street and her husband, Kennedy Street.

C. B. Smith, Judge, presiding. This was an action of assumpsit, brought by Enoch Com-stock, Timothy H. Castle, Frederick Collins, Samuel H. Emory, Jr., Chauncey H. Castle, and Henry A. Castle, against James S. Hannah, upon a promissory, note given by the de-’ fendant to Geo. W. Kenworthy, and by him assigned to the plaintiffs. The defendant pleaded both total and partial failure of consideration, and that plaintiffs had notice of the same when they bought the note.

Hokatio M. Vandeveer, Judge, presiding. This was an action of ejectment, by David T. Bonnell against Anthony Almond and Alice C. Almond, to recover a certain tract of land. The opinion of the court states all the material facts in the case.

<p>Homestead. Under the homestead act of 1851, and the amendatory act of 1857, the widow has not the right to claim a homestead in addition to her dower, as against the heirs, in the premises occupied by her as a homestead. Under those acts the exemption exists only as against forced sales, or voluntary alienations by the husband in which the homestead is not released.</p>

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

James C. Allen, Judge, presiding. This was an action of assumpsit by the board of supervisors of Cumberland county, against Andrew J. Edwards, to recover money in the hands of defendant, which came to his hands as county treasurer and collector for the years 1871 and 1872.

<p>1. Office and officer—of collector not. a distinct office from that of treasurer or sheriff. Under the constitution and laws of this State there is no such an officer as county collector. In counties under township organization the county treasurer, and in all other counties the sheriff, is required by law to collect the revenue, and as such is sometimes designated as collector; but this creates no new office—it only imposes new and additional duties on the part of the treasurer or sheriff.</p> <p>2. Same—compensation to be fixed by county boards. Where the board of supervisors of a county fixed the compensation of the county treasurer at $700 per annum, to include fuel, stationery and clerk hire, this was held, necessarily, to include his compensation for duties to be performed by him as collector as well as treasurer, the offices not being distinct. The constitution does not require the salary of such officer to be fixed separately from the stationery, fuel and clerk hire of the office, but it requires the compensation—the whole compensation of the officer, including stationery, fuel and clerk hire—to be fixed by the board.</p>

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

George W. Pleasants, Judge, presiding. This was a bill in chancery, by the appellee against John V. Cook, county clerk, and Samuel E. Porter, collector of Eock Island, to enjoin the collection of a tax. The opinion of the court states all the material facts of the case. The tax sought to be enjoined was assessed and levied under the consolidated revenue act of 1872.

<p>1. Parties—mechanic's lien. Where a contract for the building of a house and the furnishing of the materials therefor was made in the name of one partner, but for the benefit of both, and both performed the labor and furnished materials, it was held, that a petition to enforce a mechanic’s lien was properly brought in the name of both partners, notwithstanding the written contract was made with one only, the rules of equity governing in such a case.</p> <p>2. Evidence—secondary. Where the copy of a "written contract is offered in evidence, the law does not require that the person who made the copy should be produced and sworn before it can be read. It is sufficient if any witness testifies that it is a copy, to admit it in evidence.</p> <p>3. Same—on question of when an alteration was made in a contract. Where a written contract, when produced, appears to have been changed, a copy taken of the same is admissible in evidence for the purpose of showing that the change was made before its execution.</p> <p>4. Mechanic’s lien—proof as to the lots on which the lien is given. Where a petition for a mechanic’s lien showed that the defendant, at the time of making the contract, was the owner of certain described lots, and the contract, which was made a part of the petition, showed that the plaintiff" was to furnish the materials, and put up a house for the defendant on his lots in the same town, without describing them, and the petition claimed a lien upon the lots described: Held, that these averments were sufficient to authorize a decree for a lien on the lots named; and the answer not denying such ownership, and the proof showing the completion of the building upon the lots of defendant, it. was further held, that, in the absence of proof that the defendant owned any other lots in the town, the proof was sufficient to authorize the decree giving a lien thereon, especially -where the question was not raised in the court below.</p> <p>5. Same-—instruction as to performance. In a proceeding to enforce a mechanic’s lien, the court instructed the jury that if they found, from the evidence, that the plaintiffs had done the work, etc., substantially as required by the contract, they should find for the plaintiff's: Held, that there was no error in the instruction, and that, as the contract -was made a part of the petition, the instruction was not in violation of the rule that a party must recover according to the allegations in his bill.</p>

Charles S. Zane, Judge, presiding. This was a bill in chancery, by Hiram F. Stevens against Benjamin F. Irwin, Philip K. Dedrick, James Emery and Charles E. Post, to enforce an alleged verbal agreement to extend the period fixed by law for redeeming a tract of land, etc. It appeared that Dedrick and Emery, having recovered judgment against Stevens for $253, had an execution issued on the same, levied upon the undivided half of the east half of the east half of the south-east…

Charles S. Zane, Judge, presiding. This was an action of assumpsit by the Nokomis National Bank, against Wesley Best. The material facts of the case appear in the opinion of the court.

Thomas F. Tipton, Judge, presiding. This was a bill in chancery, by Sarah J. Brittenham against Jeremiah Marston, Daniel K. Tenney, John J. McClellan, John V. Farwell, Charles B. Farwell, Simon Farwell, Clifton H. Moore and Vespasian Warner. The facts of the case and object of the bill are stated in the opinion of the court.

<p>School districts—;forming new ones. The trustees of schools have no discretion to form, or refuse to form, a new district when it embraces at least five families, and when the law is complied with in applying for the formation of the same, hut they are bound to give effect to the will of the voters as expressed in their petition, and if they refuse to grant such petition, when made according to law, the courts will compel them, by mandamus, to do so.</p>